FEDERAL COURT OF AUSTRALIA

King v Jetstar Airways Pty Limited [2012] FCAFC 115

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    If either party wishes to be heard on costs the party must notify the other party and the Court within 7 days of the date of these orders.

3.    If notice is given in accordance with order 2, the party seeking to be heard is to file and serve written submissions setting out the order sought and reasons in support within a further 14 days and the other party may file and serve written submissions in reply 14 days thereafter.

4.    Failing notice being given in accordance with order 2, the appellant pay the respondent’s costs of the appeal as agreed or taxed.

Note:    Settlement and entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

THE APPEAL

1        In this appeal the appellant, Sheila King, contends that the primary judge erred in concluding that the respondent, Jetstar Airways Pty Ltd (Jetstar), did not unlawfully discriminate against her on the ground of her disability in respect of the provision of a service because Jetstar had proved that it would impose unjustifiable hardship on Jetstar to do so.

2        By s 24(1) of the Disability Discrimination Act 1992 (Cth) (in the form it was at the relevant time) it was unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person’s disability by refusing to provide the other person with those goods or services or to make those facilities available to the other person. Section 24(2) of the Disability Discrimination Act provided that:

This section does not render it unlawful to discriminate against a person on the ground of the person’s disability if the provision of the goods or services, or making facilities available, would impose unjustifiable hardship on the person who provides the goods or services or makes the facilities available.

3        The primary judge found that in refusing Mrs King’s booking for a flight scheduled for 23 September 2008 because she needed wheelchair assistance when Jetstar would provide such assistance to only two persons per flight in circumstances where two such persons had already booked for travel on the same flight, Jetstar had discriminated against Mrs King on the ground of her disability (King v Jetstar Airways Pty Ltd (No 2) (2012) 286 ALR 149; [2012] FCA 8 at [184]-[186]). The primary judge also found, however, that Jetstar had proved the defence of unjustifiable hardship under s 24(2) of the Disability Discrimination Act so that, as the primary judge said at [264]:

…s 24 of the Act did not render it unlawful for Jetstar to discriminate against Mrs King on the ground of her disability. This is because under the Act as in force at the time the provision of the assistance to wheelchair passengers to board and disembark from an A320 flight without a limit on the number of passengers requiring that assistance would impose unjustifiable hardship on Jetstar taking into account all relevant circumstances, including the matters in s 11 of the Act.

4        The primary judge reached this conclusion on the basis identified at [243] of his reasons, namely, that:

Mrs King's case was conducted on the basis that the s 24(2) statutory hypothesis was that there was no restriction on the number of passengers on each A320 flight who required wheelchair assistance. The case was not conducted on the basis that the hypothesis was that there be one extra passenger on flight JQ 769 on 23 September 2008 who required wheelchair assistance.

5        Mrs King, in a proposed amended notice of appeal, contends that the primary judge erred in a number of respects. First, it is said the primary judge was wrong to determine unjustifiable hardship by reference to Jetstar’s entire operation and a so-called worst case scenario of unlimited access to flights by persons requiring wheelchair assistance rather than doing so by considering the actual hardship Jetstar may or may not have endured if it allowed Mrs King to travel on the particular flight in question. Second, it is said that the primary judge erred in making findings of fact that were not open on the evidence and, instead, involved speculation, conjecture and unsupportable assumptions. Third, it is said the primary judge erred by not giving adequate reasons for the finding that the provision of services to Mrs King in September 2008 would have imposed unjustifiable hardship on Jetstar.

6        Jetstar’s position is that it is not open to Mrs King to contend error by the primary judge in determining unjustifiable hardship by reference to Jetstar’s entire operation as this approach was required by the case as put by Mrs King to the primary judge, accurately reflected in the observation at [243] of the primary judge’s reasons. Had Mrs King sought to make her case of discrimination by reference only to the “hypothesis … that there be one extra passenger on flight JQ 769 on 23 September 2008 who required wheelchair assistance” Jetstar’s defence would have been different and called for different evidence. Jetstar otherwise contends that the primary judge made factual findings supported by Jetstar’s unchallenged evidence and gave careful and detailed reasons supporting the principal findings necessary to resolve the dispute between the parties as presented during the hearing.

THE BASIC FACTS

7        The basic facts were the subject of limited dispute. As the primary judge found, “[o]n 12 August 2008, Mrs King made her original internet booking for flight JQ 769 from Adelaide to Brisbane on 23 September 2008 at 9.45 am” (at [39]). The primary judge also found that at this time Mrs King did not note on her booking that she required wheelchair assistance (at [39]). Mrs King paid $132 for the flight on the same day (at [40]). Later, on a date the primary judge found to be 16 August 2008, Mrs King contacted Jetstar again about her booking. She was told that “she can not take a Wheel chair with her to the flight booked as the max limit has been reached” (at [44]). Jetstar offered to move Mrs King to another flight for free but she declined (at [48]). Mrs King booked with Virgin instead and took the Virgin flight at a cost of $40 more than the Jetstar flight (at [49]). Jetstar refused Mrs King’s booking because of its “Limited Special Assistance” provisions (set out at [50] of the primary judge’s reasons) which said in part that:

Jetstar accepts bookings for up to two customers requiring wheelchair assistance on each flight. Where there are already two bookings made for wheelchair assistance on the flight the customer wishes to book, Jetstar will contact the customer to make alternative arrangements which may include:

(a)    moving the customer to an earlier or later flight where the limit has not been exceeded;

(b)    re-routing the customer to their intended destination; or

(c)    providing a full refund.

8        Mrs King made a complaint to the Australian Human Rights Commission (the AHRC) as provided for in the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act) which said, amongst other things, that after she had made her booking Jetstar told her she could not take her wheelchair on the flight as all Jetstar’s wheelchairs had been booked (at [19]). In response to the complaint before the AHRC Jetstar referred to its “Limited Special Assistance” provisions (at [20]). The AHRC terminated the complaint and Mrs King applied to the Court under s 46PO of the AHRC Act. As the primary judge noted, under s 46PO(3) of the AHRC Act the unlawful discrimination alleged in the application to the Court must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint (at [17]). The primary judge rejected Jetstar’s argument to the contrary and found that “the unlawful discrimination alleged in the application to the Court arose out of the same or substantially the same acts, omissions or practices that were the subject of the terminated complaint” (at [26]). In her application to the Court Mrs King sought declarations for contraventions of the Disability Discrimination Act and “an order directing Jetstar to cease enforcing its policy of limiting the number of passengers who require wheelchair assistance to two passengers per flight” (at [21]).

THE PRIMARY JUDGE’S REASONS

Statutory provisions

9        The primary judge identified the key provisions of the Disability Discrimination Act as in force at the relevant time at [4]-[11] including the objects of the Act in s 3 as follows:

(a)    to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of:

(i)    work, accommodation, education, access to premises, clubs and sport; and

(ii)    the provision of goods, facilities, services and land; and

(iii)    existing laws; and

(iv)    the administration of Commonwealth laws and programs; and

(b)    to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community; and

(c)    to promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community.

10        Section 5 was in these terms:

(1)    For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if, because of the aggrieved person’s disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.

(2)    For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability.

11        Section 24 was as follows:

(1)    It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person’s disability or a disability of any of that other person’s associates:

(a)    by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or

(b)    in the terms or conditions on which the first mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or

(c)    …

(2)    This section does not render it unlawful to discriminate against a person on the ground of the person’s disability if the provision of the goods or services, or making facilities available, would impose unjustifiable hardship on the person who provides the goods or services or makes the facilities available.

12        “Services” was defined in s 4(1) to include services relating to transport or travel.

13        Section 11 was in these terms:

For the purposes of this Act, in determining what constitutes unjustifiable hardship, 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; and

(d)    in the case of the provision of services, or the making available of facilities—an action plan given to the Commission under section 64.

Wheelchair assistance requirements

14        The primary judge observed at [51] that “what Mrs King needed or required or would have needed or required from the time of check-in at Adelaide airport to the time she collected her baggage at Brisbane airport” was relevant to “the identification of the “service” for the purposes of the Disability Discrimination Act but also to the later statutory questions of whether any requirement or condition was “not reasonable” and whether to have provided the service to Mrs King would have imposed “unjustifiable hardship” on Jetstar.

15        For this purpose the primary judge identified the sequence of events which would be involved in transporting Mrs King on the flight (at [52]-[71]) and considered estimates prepared by a Mr Lobascher of Jetstar and Mrs King of the time these activities would take (at [72]-[98]). The primary judge found at [95] that:

Mr Lobascher's estimates were more accurate both generally and in relation to Jetstar than Mrs King's but, as the study stated, they were averages of the time taken for Jetstar staff to assist and were limited to Melbourne as representative of the distances and complexities found in Jetstar's domestic airports.

16        On this basis, and with the adjustments identified, the primary judge therefore resolved the issues relating to the time these activities would take in these terms:

[96]    The findings I make in relation to the times for assistance are as follows. For passengers designated WCHR [Wheelchair Ramp], that is those wheelchair passengers who could ascend or descend steps unassisted, the time taken for embarking, from check-in to the base of the aircraft stairs, where there was no aerobridge was on average approximately 13 minutes and for disembarking, from the aircraft to baggage claim, on average approximately eight minutes. Where there was an aerobridge used the time was on average approximately 14 minutes for embarking and on average approximately nine minutes for disembarking on the basis in each case that assistance was provided for the aerobridge but, for this category, not for the stairs.

[97]    For passengers designated WCHS [Wheelchair Steps], which was the most relevant of these designations to Mrs King, that is those wheelchair passengers who could not ascend or descend steps unassisted but once in the aircraft did not require assistance to their seat: I find the time taken for embarking, from check-in to boarding the aircraft, where there was no aerobridge used was on average approximately 13 minutes and for disembarking from the aircraft to baggage claim I find the time was on average approximately nine minutes. Where there was an aerobridge used I have subtracted the difference between the approximate time taken to use a passenger lifter and the approximate time taken to use an aerobridge of three minutes and I therefore find the embarking time from check-in to boarding the aircraft to have been approximately 10 minutes and the disembarking time from the aircraft to baggage claim approximately six minutes.

[98]    For passengers designated WCHC [Wheelchair Cabin Seat], that is those wheelchair passengers who could not ascend or descend steps unassisted and who required assistance which included assistance with transfers between wheelchairs, in the passenger lifter and the aircraft seat: I find the time taken for embarking, from check-in to boarding the aircraft, where there was no aerobridge used to have been on average approximately 17 minutes and for disembarking from the aircraft to baggage claim I find the time to have been on average approximately 9 minutes. Where there was an aerobridge used again I have subtracted the difference between the approximate time taken to use a passenger lifter and the approximate time taken to use an aerobridge of approximately three minutes and I therefore find the embarking time from check-in to boarding the aircraft to have been approximately 14 minutes and the disembarking time from the aircraft to baggage claim approximately six minutes.

The service

17        The primary judge dealt with the relevant service for the purpose of s 24 of the Disability Discrimination Act at [99]-[129]. The primary judge characterised the relevant service in these terms:

[127]    My findings on the question of the identification of the service for the purposes of the Act are that Mrs King wished to be provided with a particular flight at a particular time from Adelaide to Brisbane, JQ 769 on 23 September 2008. In order for her to take that flight she also needed and wished to be provided with assistance to get from check-in to the door of the aircraft and, on arrival, from the door of the aircraft to the time she got her check-in baggage. Thus at one level Mrs King wanted a travel or transport service to take her from Adelaide to Brisbane but in order to access that service she needed substantial assistance. This was because of her disability. Travellers without Mr King's disability did not need the assistance. The assistance that she needed and wished to be provided with was substantial, although Jetstar made no separate charge for it. Mrs King would not have required the assistance if she had not wanted to travel on the flight. Mrs King would not have required the assistance if she did not have a mobility disability.

[128]    In my view, identification of the service should start from the perspective of a person wanting the putative service. The preferable analysis here is that the service was the major and dominant service Mrs King wanted, being flight JQ 769 from Adelaide to Brisbane on 23 September 2008. For the purposes of the Act, the assistance should be seen as ancillary to the service constituted by the particular flight. It was assistance to board and disembark the flight. Its provision does not negate the identification of the flight as the service.

[129]    While it is possible to identify two services in my opinion it would be artificial to do so. Although the assistance which Mrs King required in order to board or disembark the flight was substantial it was not sufficiently discrete or separate from the service of travel on the flight in question to constitute a different service for the purposes of the Act. In my view, the provision of substantial assistance to some passengers or indeed to all passengers to board or disembark from the aircraft does not change the identity of the service.

Jetstar’s operational framework

18        The primary judge then dealt with Jetstar’s operational framework by reference to evidence from Mr Lobascher, Mr Dal Pra and Mr Moore (at [130]-[177]). Mr Lobascher is Jetstar’s Client Solutions Co-ordinator, Mr Dal Pra is Jetstar’s Chief Operating Officer, and Mr Moore is Jetstar’s Group Chief Financial Officer.

19        The primary judge accepted Mr Lobascher’s evidence including that:

(a)    Jetstar was a low cost carrier. It did not provide the full range of services offered by a full service airline. Within the constraints of its operating model, Jetstar provided special assistance to passengers with special needs, including special assistance to passengers with limited mobility, including those who required wheelchair assistance (at [131]);

(b)    these services were performed in the context of Jetstar's operational framework. This included Jetstar's aircraft turnaround time, being the time from the point when the aircraft was on blocks to the point when it departed again. The turnaround time for A320 flights was 30 minutes. This was set out in Jetstar's Precision Timing Schedule (PTS) which was first created for the A320 aircraft in October 2006 (at [132]);

(c)    the time permitted by the PTS for assisting passengers requiring assistance, within the turnaround time for A320 flights of 30 minutes, was very limited (at [133]);

(d)    the two wheelchair practice applied only on A320 and A321 narrow body aircraft; it did not apply to flights serviced by Jetstar's A330 wide body aircraft (at [134]);

(e)    the two wheelchair practice limited the number of passengers; it was not a limit on the number of wheelchairs that could be checked-in to the aircraft hold for any flight (at [135]);

(f)    the two wheelchair practice meant that within Jetstar's 30 minute turnaround time for A320 flights there were potentially two passengers requiring wheelchair assistance boarding and two passengers requiring wheelchair assistance disembarking on each aircraft (at [136]);

(g)    per departure there was an average of 0.519 passengers requiring assistance and 0.477 passengers requiring wheelchair assistance and 12,825 of the 25,525 requests for wheelchair assistance were designated WCHS, signifying the passenger was unable to ascend the aircraft stairs and therefore required the use of a passenger lift when boarding where there was no aerobridge (at [137]); and

(h)    all flight delays, however long or short they might be, were recorded but there were some limitations to the data (at [137]-[144]).

20        The primary judge concluded that although the electronic data for the financial year 2009/10 did not establish that there were 1,839 domestic flights delayed where one or more reasons for the delay was a passenger or passengers requiring wheelchair assistance as Mr Lobascher had estimated, the data did show that Jetstar closely monitored, and measured in minutes, each delay to each flight and for that year there were a substantial number of delays attributable to passengers requiring wheelchair assistance (at [144]). The primary judge also inferred that “there were sometimes flight delays caused by passengers requiring wheelchair assistance even though there was a limit of 2 such passengers boarding an A320 aircraft” but not on the basis of the electronic data (at [146]).

21        The primary judge identified Mr Dal Pra’s evidence at [148]-[169] including that:

(a)    the limit for an A320 of two on the number of passengers per flight requiring wheelchair assistance was a practice that had been in place since the commencement of Jetstar's operations on 25 May 2004. Mr Dal Pra had no role in drafting the practice as it existed at the commencement of Jetstar's business (at [148]);

(b)    significant research was undertaken to get Jetstar's low-cost business model right and key drivers included cost drivers for the high utilisation of assets, such as aircraft, and quick turnaround times. Another cost driver was low-cost airport operations, including lower cost terminals (using stand-off bays) while revenue drivers included stimulating markets through low fares and unbundling the product so that customers only pay for what they wanted (at [150]);

(c)    Jetstar was able to provide point-to-point air travel at a very low cost because of an operational system based around short turnaround times between flights and high aircraft utilisation (at [152]);

(d)    due to the way low-cost airlines in particular operate with high utilisation, delay on one flight had a significant impact on other flights on that day, that is, there was a “domino” effect (at [157]);

(e)    flight scheduling was critical to on time performance and to meeting turnaround times. There was minimal flexibility in the flight scheduling because of the minimal resources at hand, infrastructural constraints, slot limitations and crew duty hour limitations so that one small change to flight scheduling can have a cascading or "domino" effect on the rest of the schedule. The schedules themselves were fixed some 10 months or more prior to the scheduling seasons (at [162]);

(f)    in order to accommodate an unlimited number of passengers requiring wheelchair assistance on an A320 flight the only realistic option would be to schedule extra turn times. This was because, first, Jetstar already had very limited time to assist two passengers requiring wheelchair assistance in the 30 minute turnaround time. The second reason was that these time limitations could not be cured by having additional staff to assist those passengers because they were only two doors on each aircraft for people to board and disembark. This was exacerbated where a passenger lifter was used because stairs could not safely be used at the same time as the passenger lifter was being operated. Third, because the delay on one flight had a cascading effect on all other flights for the day Jetstar would need to schedule in the turnaround time for additional passengers requiring wheelchair assistance. Jetstar would schedule extra turn times because the deterioration in on time performance, the resulting cancellations and the resulting negative customer service would not be tolerable (at [163]); and

(g)    the consequences of a five minute increase to the turnaround time and of a ten minute increase to the turnaround time calculated by Jetstar's scheduling team were that approximately 20 domestic flights per day would need to be cancelled to accommodate a five minute increase to the turnaround time and approximately 30 domestic flights per day would need to be cancelled to accommodate a ten minute increase to the turnaround time (at [165]).

22        The primary judge said this evidence was “necessarily concerned with estimates” and while there was no proof that there would be three or more prospective passengers on each flight who would require wheelchair assistance, removing the limit of two such passengers would be likely to have the consequences of which Mr Dal Pra gave evidence (at [170]). At [171] the primary judge also said that he accepted this evidence “not as showing the outcome of additional boarding delays with any precision but as indicating an estimate of the consequences of such a delay. Only if a new flight schedule based on the increase to the turnaround times across the whole domestic operations were produced could there be certainty about the number of cancellations arising from a 5 or 10 minutes increase in turnaround times”. The primary judge concluded as follows:

[172]    The point being made, and which I accept, was that operationally Jetstar could not allow for more than two passengers requiring wheelchair assistance per A320 flight within existing turnaround times and the existing schedule as the effect of the limit, both in terms of the certainty of a maximum number of such passengers per flight and the averaging of those numbers, would not exist. This meant that the schedules would have to be revised and longer turnaround times allowed in the schedule to make provision for the possibility that on any A320 flight more than two passengers would require wheelchair assistance. The estimates were based on three such passengers per flight rather than two but once the limit was removed it could not be predicted with certainty what the number of such passengers might be on any one A320 flight.

[173]    I conclude that an estimate of 20 sectors lost per day on the basis of an additional 5 minute increase in turn time was a reasonable and conservative estimate per 50 aircraft. There was no estimate on the operational approach specifically directed to mid-2008 when Jetstar had about 30 narrow body aircraft, being 28 A320 aircraft and two A321 aircraft. As I have said, on the calculated approach the figure for 35 aircraft was a loss of approximately 14 sectors. I infer that at least a similar figure would have applied on the operational approach.

23        The primary judge summarised Mr Moore’s evidence at [174]-[176], the effect of which was that assuming the turnaround time would be increased by no less than 5 minute blocks, the impact of an additional 5 minutes on every turnaround time would result in the cancellation of 20 domestic flights per day, and an additional 10 minutes on every turnaround time would result in the cancellation of 30 domestic flights per day. The five minute increase in turnaround time would also reduce Jetstar's domestic profitability “by greater than approximately 48%” and the 10 minute increase in turnaround time would reduce Jetstar's domestic profitability “by greater than approximately 72%”, and in both cases the profit impact was tens of millions of dollars. At [177] the primary judge concluded that:

While I accept Mr Moore's calculations, they did not provide a sound basis on which I could find with any accuracy an estimated profit impact for the relevant financial year and in relation to a loss of sectors of approximately 14 per day. I do however find that there would have been an adverse profit impact and that it would have been substantial. I also accept that expressed as a percentage of the total revenue for the relevant financial year the number would have been a low single figure and expressed as a percentage figure for total domestic revenue for the relevant financial year the number would have been larger but still a single figure.

Discrimination

24        The primary judge found in Mrs King’s favour in respect of discrimination by reason of her disability at [178]-[186], concluding as follows:

[184]    In my view, the two related reasons why Mrs King's booking was not accepted for flight JQ 769 on 23 September 2008 were first that she needed assistance and second that Jetstar provided that assistance for a limited number of passengers on that flight, amongst other flights, that number being a maximum of two.

[185]    The ground on which Jetstar refused to provide that service to Mrs King was Mrs King's disability. If Mrs King had not had that disability then Jetstar would have provided the service to her. A person without Mrs King's disability would have been allowed to make a booking to fly on JQ 769 on 23 September 2008.

[186]    I find that the s 24(1)(a) direct or s 5 discrimination complaint is made out.

Unjustifiable hardship

25        Having dealt with other matters not in contest in the appeal, the primary judge moved to the issue of unjustifiable hardship at [242]-[264]. Having characterised Mrs King’s case as one in which the hypothesis was that there was no restriction on the number of passengers on each A320 flight who required wheelchair assistance rather than that there be one extra passenger on flight JQ 769 on 23 September 2008 who required wheelchair assistance (at [243]), the primary judge referred again to the terms of s 11 at [245] and noted at [246] that all relevant circumstances were required to be weighed in determining unjustifiable hardship.

26        The primary judge recorded Mrs King’s principal submissions at [248] in these terms:

Mrs King submitted that the limit on domestic flights was arbitrary because Jetstar had not engaged in any proper process to analyse how to accommodate passengers requiring wheelchair assistance. Jetstar had not sought to provide the Commissioner with an action plan. Mrs King also submitted that the retrospective justification could not be said to demonstrate that the practice was justified at the time of the alleged act of discrimination. It could not be said that there was any reliable evidence of the level of delay caused by passengers requiring wheelchair assistance. Mrs King also criticised the absence of an assessment of the financial or operational impact at the time when the alleged unlawful discrimination took place. There was no evidence on how and why the limit of two passengers requiring wheelchair assistance was picked.

27        The primary judge found that:

(a)    the nature of the benefit likely to accrue from there having been no limit on the number of passengers requiring wheelchair assistance on an A320 was, on the evidence, real but limited. Mrs King would not have had to suffer discrimination and would not have had to arrange different air travel for a fare which was $40 higher if there had been no limit on the number of passengers requiring wheelchair assistance. There was no evidence of any benefit accruing to any other person and the benefit to Mrs King would have been in respect of one flight out of the 18 or 19 she had taken with Jetstar (at [255]);

(b)    this was not a case where the service of air travel generally was denied to Mrs King by Jetstar. What was refused was travel on a particular flight. Jetstar offered to find an alternative flight for Mrs King on the same route and to change Mrs King's booking without any additional charge but an alternative flight on Jetstar was less convenient or impossible in light of the other travel arrangements she had previously made. In taking into account the benefit, it is relevant that there was not an absolute refusal of the service of travel and there is therefore no relevant analogy with the impossibility of access to a building without a ramp or a school without physical alterations being made to it (at [256]);

(c)    as to the detriment likely to have been suffered by any persons concerned, this primarily relates to Jetstar but one of the obvious effects of having no limit, in the circumstances of this case, would be that on the evidence there would be an additional detriment from a reduction in flights in circumstances where it has not been shown that there is any imbalance between the average level of demand and a maximum of two passengers requiring wheelchair assistance per flight (at [257]);

(d)    also relevant in the present circumstances is the estimated impact on Jetstar's operations as, on the lowest of the numbers, there is a loss of approximately 14 sectors per day (at [259]);

(e)    a delay would have affected all passengers on a flight and, in light of the evidence as to the effect of the delay in one flight on later flights of that aircraft on that day, a delay would also have been likely to affect passengers on other flights on that aircraft on that day (at [260]); and

(f)    on the estimates accepted, the annual profit impact flowing from an additional five or ten minutes on every scheduled turnaround time would have been adverse and substantial (at [262]).

Accordingly, the primary judge said:

[263]    In my view if at the relevant time there had been no limit on the number of passengers boarding and disembarking from any A320 flight operated by Jetstar the provision of those services would have imposed hardship on Jetstar and, when assessed against the benefits likely to accrue, would have imposed unjustifiable hardship on Jetstar.

[264]    I find that the defence of unjustifiable hardship is made out with the result that s 24 of the Act did not render it unlawful for Jetstar to discriminate against Mrs King on the ground of her disability. This is because under the Act as in force at the time the provision of the assistance to wheelchair passengers to board and disembark from an A320 flight without a limit on the number of passengers requiring that assistance would impose unjustifiable hardship on Jetstar taking into account all relevant circumstances, including the matters in s 11 of the Act.

THE GROUNDS OF APPEAL

Grounds 1.1-1.5

28        A principal component of these grounds of appeal is the contention that the primary judge mischaracterised Mrs King’s case at [243] of the reasons and was thereby led into error by assessing the question of hardship by reference to the worst case scenario. According to this contention, a “proper application of the test should have resulted in the primary judge considering the issue of unjustifiable hardship…only by reference to the impact of one extra passenger on Flight JQ 769”.

29        The problem with this contention, and the associated appeal grounds (in fact, grounds 1.1 and 1.2 despite Jetstar’s objection being confined to ground 1.1), is that it is apparent that the case was conducted before the primary judge on precisely the basis identified at [243] of the reasons. The focus of Mrs King’s case was Jetstar’s two wheelchair practice. Mrs King complained she had been discriminated against on the basis of the practice (as the primary judge found she had been) and sought an order that the practice no longer be implemented. Jetstar, in response, unsuccessfully argued that Mrs King’s approach was too broad and had to be confined to the circumstances relating to the particular flight which Mrs King was not permitted to book by reason of the two wheelchair practice. Far from being a mischaracterisation of the case, the primary judge’s observation at [243] constitutes his rejection of Jetstar’s argument and acceptance of Mrs King’s argument that she was discriminated against by reason of the two wheelchair practice which Jetstar should be ordered to abandon. Jetstar, for its part, defended its two wheelchair practice as an across-the-board practice on A320 aircraft on the basis of the evidence of Mr Lobascher, Mr Del Pra and Mr Moore. The fact that the primary judge accepted much of that evidence, albeit with modifications, cannot now be used in the appeal to support the submission that he mischaracterised the case.

30        As Jetstar submitted, Mrs King challenged the two wheelchair practice as applied by Jetstar. While Jetstar unsuccessfully argued she was not entitled to do so, it met the case that was put for Mrs King by defending the alleged discrimination as not unlawful because the provision of its services without the two wheelchair practice would impose unjustifiable hardship on it. We accept Jetstar’s submission that if the case for Mrs King had not concerned the two wheelchair practice as a practice applying to all Jetstar A320 flights the evidentiary contest from Jetstar’s perspective is likely to have been different. Jetstar’s evidence need not have traversed its operations as a whole but, rather, would have concerned the circumstances of the particular flight. As the evidence stood before the primary judge, he inferred from the general operational evidence that delay on the particular flight would have been likely and likely also to result in a domino effect throughout the day (at [260]), but there was no evidence about such matters as, for example, whether the flight took place or was cancelled or took off on time or was delayed for other reasons which Jetstar might have been expected to call had the case for Mrs King been put on the basis now alleged.

31        We do not accept the submission for Mrs King that the scope of evidence of Jetstar’s defence was solely a matter for Jetstar and unconnected to the way in which the case for Mrs King was put. It is true that Jetstar had the onus of establishing unjustifiable hardship within the meaning of s 24(2) of the Disability Discrimination Act. However, and as the primary judge noted at [242] of the reasons, s 24(2) “must be addressed subsequent to the question of discrimination because the circumstances in which it applied were if the provision of the services would impose unjustifiable hardship on the person who provided the services”. In other words, given Mrs King’s case, s 24(2) asked if there would have been unjustifiable hardship imposed on Jetstar if Mrs King had not been refused her booking on the flight because of the two wheelchair practice. As the primary judge said at [243], the hypothesis of Mrs King’s case was that there was no two wheelchair practice, with the inevitable consequence that it must be assumed there would have been no restriction on the number of passengers on each A320 flight who required wheelchair assistance.

32        For these reasons the case as sought to be put for Mrs King in the appeal is inconsistent with that put to the primary judge and, if it had been put, was likely to have resulted in Jetstar adducing other evidence. This should not be permitted in the appeal consistent with the principles discussed in Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438 and Coulton v Holcombe (1986) 162 CLR 1 at 7-8. The principle that a party is bound by the conduct of his or her case, and the policy considerations which underlie it, apply with particular force in the present context. The issue of unjustifiable hardship is to be determined having regard to all of the relevant circumstances and, as the terms of s 11 make apparent, involves evaluative and impressionistic questions. The difficulty for Mrs King’s case on appeal is that it effectively requires the appeal court to reconsider the question of unjustifiable hardship in a different context from that presented below and on the basis of, at best, an incomplete evidentiary matrix.

33        For these reasons leave should not be granted to Mrs King to raise the new issue in ground 1.1 of the proposed amended notice of appeal. Although not articulated by Jetstar it is apparent that proposed ground 1.2 is related to ground 1.1 and also inconsistent with the case put for Mrs King below. Accordingly, leave should be refused in respect of both of these grounds.

34        Insofar as the submissions for Mrs King dealt with other issues by reference to these grounds a number of observations may be made. It was put for Mrs King that ground 1 of the appeal involved the central proposition that “public transport providers that have established rigid inflexible and streamlined processes in pursuit of profit margins without any regard for the disabled community and their obligations under the [Disability Discrimination Act] cannot retrospectively contend that being forced to relax those processes would cause unjustifiable hardship”. The proposition refers to the fact that there was no evidence explaining the origin of Jetstar’s two wheelchair practice for the A320 plane. The problem with the proposition is that it seeks to transform a question of fact in a particular case, whether providing the service to the person without discrimination would impose unjustifiable hardship on the person who provides the service, into a question of principle. The fact that Jetstar did not adduce evidence explaining the origin of the two wheelchair practice for the A320 plane was but one matter to be weighed in the balance. It could not of itself lead to a determination against Jetstar on the question of unjustifiable hardship. There was other evidence before the primary judge that also had to be assessed. As noted, this included:

(a)    the two wheelchair practice applied only to the A320 and A321 planes which had a single aisle and not to the A330 wide body aircraft which had two aisles and a 70 minute turnaround time (at [134] and [155]);

(b)    Jetstar’s business model depended on high aircraft utilisation which involved tight aircraft turnaround times reflected in the PTS for each aircraft (at [132] and [150]);

(c)    for the A320 a turnaround time of 30 minutes was allocated which was very limited (at [133]);

(d)    the two wheelchair practice meant that Jetstar could be dealing with two customers leaving and two customers boarding an A320 plane during the turnaround time of 30 minutes (at [136] and [213]);

(e)    Jetstar closely monitored all flight delays and their causes which disclosed that a substantial number of delays were caused by passengers requiring wheelchair assistance (at [144]);

(f)    delays on one flight caused delays throughout the day as a result of Jetstar’s high aircraft utilisation, airport restrictions and crew regulations (at [157]);

(g)    if Jetstar did not have the two wheelchair practice in place so that there was no limit on the number of passengers requiring wheelchair assistance the only realistic option was to increase the 30 minute turnaround time (at [163]);

(h)    increasing the turnaround time for the A320 by 5 or 10 minutes would result in the cancellation of 10 and 20 domestic flights respectively per day and have a substantial impact on profitability; and

(i)    as an annualised average across Jetstar’s operations as a whole 0.477 passengers per flight required wheelchair assistance (at [137]).

35        In the face of this evidence, the submission for Mrs King that the evidence constituted “an attempt at ex post facto justification of a limit that was set arbitrarily, that is, without study, planning, forethought or articulated reason” cannot be accepted. The lack of study, planning, forethought or an articulated reason for a limit may be relevant to the assessment of other evidence about the effects of the provision of the service without the discrimination as found, a matter the primary judge recognised in dealing with the evidence of Mr Lobascher, Mr Dal Pra and Mr Moore. Depending on the facts of the particular case, it may suggest, for example, that other evidence should be treated with caution or carry less weight than might otherwise be the case. But the fact that a limit has been set without evidence of any particular study or planning is not necessarily determinative of the question of unjustifiable hardship. Jetstar’s evidence was not an attempt at ex post facto justification of the two wheelchair practice. It was adduced as relevant to the issue of unjustifiable hardship if, as Mrs King, contended, Jetstar should be ordered to cease to enforce the two wheelchair practice.

36        The primary judge was mindful of the fact that the evidence Jetstar adduced did not address the origin of the two wheelchair practice, only that it had been part of Jetstar’s operations from the outset (at [148]). The primary judge was also mindful of the fact that Jetstar’s evidence included a study of the time taken to provide assistance to passengers in wheelchairs and the effects of abandoning the two wheelchair practice after the event (treating the event as including both adoption of the two wheelchair practice or the act of discrimination by Jetstar against Mrs King in 2008). This is clear from the observations of the primary judge at [78], [79], [92], [93], [94], [137], [138], [144], [145], [146], [164], [173], [176] and [177]. Some examples from these observations demonstrating the primary judge’s appreciation of the temporal issue will suffice. These are set out below:

[92]    Mrs King criticised Jetstar's evidence in a number of respects. She submitted that there was no probative value to Mr Lobascher's time and motion studies: his evidence was at best vague, imprecise and mere speculation. In particular, it was submitted, no reliance could be placed on Mr Lobascher's time and motion study because he was a trained lawyer and Mr Lobascher had no knowledge or experience of operations in August 2008.

[93]    I do not accept Mrs King's criticisms of Mr Lobascher's study. In particular I find that, within the expressed limits of the study, there is no reason to doubt the accuracy of Mr Lobascher's estimates either by virtue of his qualifications or otherwise: the study was a simple one. The study also provided the basis for an inference that similar estimates applied in August and September 2008 and I so infer.

[94]    As to the timing of the study, the fact that this study was not done at the time the limit of two passengers requiring wheelchair assistance was introduced, when Jetstar began operations, or in August 2008 at the time of the alleged discriminatory action does not disqualify it from consideration or make it irrelevant. That the study was done for the purpose of these proceedings means that it must be assessed with particular care.

[146]    In any event the figures were for not for the financial year in which the flight Mrs King wished to take occurred. I do infer that at the relevant time there were sometimes flight delays caused by passengers requiring wheelchair assistance even though there was a limit of 2 such passengers boarding an A320 aircraft but I do not do so on the basis of the numbers in the electronic database which was in evidence.

[173]    I conclude that an estimate of 20 sectors lost per day on the basis of an additional 5 minute increase in turn time was a reasonable and conservative estimate per 50 aircraft. There was no estimate on the operational approach specifically directed to mid-2008 when Jetstar had about 30 narrow body aircraft, being 28 A320 aircraft and two A321 aircraft. As I have said, on the calculated approach the figure for 35 aircraft was a loss of approximately 14 sectors. I infer that at least a similar figure would have applied on the operational approach.

[177]    While I accept Mr Moore's calculations, they did not provide a sound basis on which I could find with any accuracy an estimated profit impact for the relevant financial year and in relation to a loss of sectors of approximately 14 per day. I do however find that there would have been an adverse profit impact and that it would have been substantial. I also accept that expressed as a percentage of the total revenue for the relevant financial year the number would have been a low single figure and expressed as a percentage figure for total domestic revenue for the relevant financial year the number would have been larger but still a single figure.

37        The reasons for judgment also disclose the care the primary judge took with the evidence as a whole. The primary judge was mindful of the character of the evidence as involving estimates (see, in particular, at [140]-[146], [170] and [177]) which had to be evaluated carefully to determine the nature and extent of the factual findings for which the evidence provided persuasive rational support.

38        For the same reasons the submission for Mrs King that the primary judge failed to recognise the “absence of any evidence of contended hardship suffered by [Jetstar] at the time of the discriminatory conduct” cannot be accepted. The evidence was that the two wheelchair practice had been part of Jetstar’s operations since the outset in 2004. Although there were differences in the composition of Jetstar’s fleet over time which the primary judge recognised at [173], it is apparent that Jetstar’s operational practices did not materially change after 2004. So much is clear from the evidence of Mr Dal Pra which the primary judge summarised at [148]-[173]. It is also apparent that the primary judge found the evidence to be relevant to the position as at 2008 (at [93], [173] and [177]). In other words, there was evidence of the contended hardship suffered by Jetstar at the time of the discriminatory conduct. The evidence involved a combination of the continuity of Jetstar’s operational practices since 2004 and of Mr Lobascher, Mr Dal Pra and Mr Moore.

39        The submissions also alleged that the primary judge erred by giving insufficient weight, if any, to the impact of the two wheelchair practice on people with disabilities and to the nature of the detriment to people with disabilities seeking access to public transport. This submission also cannot be accepted. The primary judge returned to the terms of s 11 at [245], which directed consideration of the nature of the benefit likely to accrue to Mrs King; the nature of the detriment likely to be suffered by Mrs King; the nature of the benefit likely to accrue to Jetstar; the nature of the detriment likely to be suffered by Jetstar; the effect of the disability of Mrs King; the financial circumstances and the estimated amount of expenditure required to be made by Jetstar, before dealing with the competing submissions about the evidence. The matters traversed included the difficulty caused to Mrs King (at [247]), the alleged inadequacies of Jetstar’s evidence (at [248]), the alleged lack of other evidence of adverse impacts caused by the two wheelchair practice (at [250]), the alleged detriment to all passengers by having fewer Jetstar flights (at [251]), the actual demand for wheelchair assistance (at [253]), and the alleged impacts of abandoning the two wheelchair practice on Jetstar’s business model (at [254]). The primary judge’s conclusions: – (i) at [255] that “the nature of the benefit likely to accrue from there having been no limit on the number of passengers requiring wheelchair assistance on an A320 was, on the evidence, real but limited”, (ii)  at [256] that the case did not involve “an absolute refusal of the service of travel and there is therefore no relevant analogy with the impossibility of access to a building without a ramp or a school without physical alterations being made to it”, (iii) at [257] that all passengers would suffer detriment by decreased flight and route options by Jetstar, and (iv) at [260] that a delay would have affected all passengers on a flight and, in light of the evidence as to the effect of the delay in one flight on later flights of that aircraft on that day, a delay would also have been likely to affect passengers on other flights on that aircraft on that day, were the product of a careful weighing of all of the relevant evidence. In these circumstances, Jetstar’s submission that this Court should be “slow to overturn the factual findings in the absence of legal error or obvious errors in the assessment of evidence” is persuasive.

40        Another contention for Mrs King was that the primary judge failed to take into account the remedial and beneficial objects of the Disability Discrimination Act. This submission appeared to be based on the lack of reference to those objects in the summary of Mrs King’s submissions at [248] of the reasons and the resolution of the issue of unjustifiable hardship thereafter. The submission founders in the face of the reasons. The primary judge identified the objects of the Disability Discrimination Act at [4]. At [12]-[14] the primary judge dealt with the principles of interpretation applying to legislation such as the Disability Discrimination Act including that such remedial and beneficial legislation should be given a “fair, large and liberal interpretation” (at [12] citing AB v State of Western Australia (2011) 244 CLR 390; [2011] HCA 42 at [24] and the cases there noted). The primary judge revisited that concept at [121] in the context of the identification of the relevant service. When dealing with unjustifiable hardship the primary judge also reminded himself at [245]-[246] that, as provided for in s 11 of the Disability Discrimination Act, the nominated matters and, indeed, all relevant circumstances must be considered. In providing a summary of Mrs King’s contentions at [248] the primary judge was not bound to repeat again the objects of the Disability Discrimination Act.

41        Consideration of the reasons as a whole also undermines the contention for Mrs King that the primary judge failed to consider other matters in weighing the nature and extent of the discriminatory effect of the two wheelchair practice. First, the primary judge noted that there was no specific evidence of the effect of other passengers, such as families with children, on flight turnaround times and explained that he thus gave that issue no weight (at [208] and [226]). Having decided that for the purpose of one of Mrs King’s arguments, the position remained the same for the balance of her case including unjustifiable hardship. There was no failure to consider that matter. Second, the primary judge considered the benefits to people with disabilities and their families from abandonment of the two wheelchair practice (at [208], [227] and [250]). It is apparent that the primary judge considered the detriment to all passengers from abandonment of the two wheelchair practice (including detriment to disabled persons and their families by reason of decreased flights and route options) outweighed the identified benefits to disabled persons and their families, particularly given that there was no evidence in relation to benefits accruing to any other person (at [255] and [259]-[263]). The primary judge considered and weighed in the balance the detriment to Mrs King from enforcement of the two wheelchair practice, as well as to disabled persons and their families (at [208], [222], [223], [247] and [255]).

42        Nor can it be accepted, as Mrs King submitted, that the primary judge erred by giving excessive weight to the fact that Mrs King had not been denied travel generally but had been denied access to one flight only. The primary judge was entitled to place substantial weight on this factor in weighing up the competing considerations which inform the analysis of unjustifiable hardship. As the primary judge noted Mrs King had travelled on Jetstar on 18 or 19 other occasions without difficulty in respect of her requirement for wheelchair assistance (at [212]). Jetstar offered to place Mrs King on an alternative flight on the same day with wheelchair assistance (at [48]). In these circumstances the primary judge’s conclusion (at [256]) that there was not an absolute refusal of service and that this was relevant to the balancing exercise was correct.

43        Mrs King contended that there was a logical flaw in the primary judge’s conclusion that in September 2008 the average demand for wheelchair assistance was less than 0.5 passengers per flight but that in order to accommodate an unrestricted number of passengers requiring such assistance Jetstar’s only option was to increase turnaround times. No logical flaw exists. The primary judge accepted that the average level of demand was 0.477 passengers per flight (at [137]) and noted at [257] that “on the evidence there would be an additional detriment from a reduction in flights in circumstances where it has not been shown that there is any imbalance between the average level of demand and a maximum of two passengers requiring wheelchair assistance per flight”. The figure of 0.477 passengers per flight is an annualised average across all operations, including aircraft not subject to the two wheelchair practice. It does not disclose the number of wheelchair passengers on any particular flight requiring wheelchair assistance. In terms of the A320 and A321 aircraft, which are subject to the two wheelchair practice, there was evidence from Mr Dal Pra, Jetstar’s chief operating officer, that accepting an unlimited number of passengers requiring wheelchair assistance on those flights would mean that Jetstar’s only realistic option would be to increase the turnaround times (at [163]). This was not illogical or mere assertion. As the evidence disclosed, Jetstar’s system involved the same turnaround time of 30 minutes for these aircraft. Enforcement of the two wheelchair practice had not eliminated delays caused by persons requiring wheelchair assistance, unsurprisingly given the evidence about the time taken to provide such assistance compared to the overall period of 30 minutes available for all required tasks in the turnaround time to be completed. Without the two wheelchair practice Jetstar would have to accept, on any flight, an unlimited number of persons requiring wheelchair assistance. Jetstar could not control the level of demand for such assistance on any particular flight. In order to have a manageable system for turnaround times Jetstar would have to increase the times across the board for those aircraft to ensure it could provide the services. The fact that on average less than 0.5 passengers per flight required wheelchair assistance showed only that, insofar as averages are relevant, Jetstar’s two wheelchair practice accommodated average demand.

44        Having regard to these matters, it cannot be accepted that the primary judge’s finding of unjustifiable hardship was not open. The finding reflected an appropriate weighing of the evidence in the light of the objects in s 3 of the Disability Discrimination Act. Those objects, in terms, contemplated that a conclusion of unlawful discrimination would involve consideration of possibilities and practicalities. Hence, the aim is to eliminate discrimination “as far as possible” and to ensure equal rights “as far as practicable”. Section 11 encompassed not only benefit and detriment to the disabled person but also benefit and detriment to others including the person providing the goods and services. In concluding that the discrimination concerned was not unlawful because Jetstar had made out the defence of unjustifiable hardship under s 24(2) the primary judge was entitled to give weight to the actual service Jetstar was providing, being access to a particular Jetstar flight. A Jetstar flight is a flight on a low-cost or budget carrier where the full range of services available on another airline, such as Qantas, are not available. As the primary judge noted, a substantial consideration in Mrs King’s decision to book with Jetstar was cost (at [49]). Jetstar’s business was providing low-cost travel (at [149]). To provide low-cost travel Jetstar’s operations involved high aircraft use necessitating short turnaround times and other matters which might be perceived as potential inconveniences by passengers such as using stand-off bays rather than aerobridges, limited check-in staff, closing flights 30 minutes before departure, and unbundling other services from the flight. Section 24(2) operates on the provision of the service in question and not some other service. Accordingly, the primary judge was not in error in identifying the service in question as access to flight JQ 769 from Adelaide to Brisbane on 23 September 2008. JQ 769 is a Jetstar flight and thus, by definition, involves a flight in accordance with Jetstar’s business and operational practices. The issue under s 24(2) is whether providing that service without the act of discrimination would impose unjustifiable hardship on Jetstar. This is not to say that a person may simply disregard the Disability Discrimination Act by creating a budget or low-cost service. The nature of the service does not answer the statutory question. The extent, if any, of hardship and whether, having regard to the s 11 factors, any such hardship was unjustifiable in all the circumstances is determinative. The primary judge correctly applied the statutory test.

Grounds 2.1–2.10

45        These grounds involve a wide-ranging challenge to the primary judge’s findings of fact. Most of these grounds have been discussed and rejected in the context of the submissions put for Mrs King under grounds 1.1 to 1.5 above.

46        Contrary to grounds 2.1 and 2.2, the primary judge did not err in making primary findings of fact on the basis of speculation and conjecture and by accepting and giving weight to material that was grounded in unsupportable assumptions. As discussed above, the primary judge was well aware of the nature and limitations of the evidence which Jetstar adduced and took great care to determine the findings of fact which that evidence could rationally and persuasively support.

47        Contrary to ground 2.3, the primary judge did not err by giving weight to the study carried out by Mr Lobascher. The primary judge carefully explained at [77] – [98] of his reasons the nature and limits of Mr Lobascher’s evidence and the findings which it supported.

48        Contrary to ground 2.4, the primary judge did not err in finding that the time permitted for assisting passengers under the precision timing schedule was very limited. There was ample evidence to support that finding at [133] and, indeed, given the evidence which was before the primary judge, it is difficult to see how any other finding rationally could have been made.

49        Contrary to ground 2.5, the primary judge did not err in accepting Jetstar’s evidence about the precision timing schedule and the turnaround time and the consequences for Jetstar’s operations if it had to abandon the two wheelchair practice. Jetstar’s evidence was cogent and persuasive and the reasons of the primary judge disclose no error in the use made of that evidence.

50        Contrary to ground 2.6, the primary judge did not err in defining the nature of the detriment to Mrs King at [255] as “real but limited”. This finding was supported by the evidence, in particular, the evidence that Mrs King had taken 18 or 19 other Jetstar flights without difficulty, having been provided with wheelchair assistance on those flights, and also had been offered a flight with wheelchair assistance at an alternative time on the same day as the flight which she was not permitted to book due to the fact that Jetstar had already taken bookings for two passengers requiring wheelchair assistance on that flight.

51        Contrary to grounds 2.7 and 2.8, the primary judge did not err in his analysis of the consequential effects of Jetstar having to provide for an unlimited number of passengers requiring wheelchair assistance. The primary judge’s findings were supported by cogent and persuasive evidence by Jetstar.

52        Contrary to ground 2.9, the primary judge did not err by giving weight to the impact on Jetstar’s profits if it had to abandon the two wheelchair practice. Under s 11 of the Disability Discrimination Act all relevant circumstances of the particular case have to be taken into account including the financial circumstances of the person claiming unjustifiable hardship. Although the analysis of Mr Moore, Jetstar’s Group Chief Financial Officer, related to the financial year 2010, the primary judge explained why he could not accept Mr Moore’s calculations as accurate but that they nevertheless provided a basis for finding that the adverse profit impact would have been substantial (at [177]).

53        Contrary to ground 2.10, the primary judge did not err in taking into account that the benefit to Mrs King would have been in respect of one flight out of 18 or 19 (at [255]). There was evidence that Jetstar enforced the two wheelchair practice since the commencement of its operations and that Mrs King had been a passenger on 18 or 19 occasions without any problem by reason of her need for wheelchair assistance. The primary judge was thus correct to take this fact into account.

54        For these reasons, there is no scope in this case for acceptance of Mrs King’s submission that the primary judge’s process of fact finding miscarried. The observations in Sharma v Legal Aid (Qld) [2002] FCAFC 196; (2002) 115 IR 91 at [40] do not assist the case for Mrs King. Nor does the summary of principles about the drawing of inferences in Gama v Qantas Airways Limited (No 2) [2006] FMCA 1767 at [7]-[9] referring to the decisions in Carr v Baker (1936) 36 SR (NSW) 301 at 306-307 and Jones v Dunkel (1959) 101 CLR 298 at 305 (amongst others).

Ground 3

55        Ground 3 involves the contention that the primary judge gave inadequate reasons for his decision. The essence of the contention is that the primary judge summarised Mrs King’s case at [248] but thereafter failed to give adequate reasons for rejecting those submissions. Again, the arguments falter when confronted by the reasons the primary judge gave.

56        The primary judge recorded the competing submissions about the arbitrary nature of the two wheelchair practice at [248] and [253]. Jetstar did not submit that the practice was not arbitrary; it submitted that arbitrariness was irrelevant. It is apparent that the primary judge was cognisant of the lack of evidence about the origins of the practice and, as a result, expressly noted that what Mrs King described as ex post facto justification evidence had to be treated with care (at [94]). It is also apparent that the primary judge accepted Jetstar’s submission not that arbitrariness was irrelevant (otherwise there would have been no reason for the requirement of care in dealing with the evidence) but that actual demand was a better indication of detriment and benefit than a (non-arbitrary) practice developed as a result of an up-front study rather than actual operations (at [253] and [257]).

57        The primary judge knew that Jetstar had not provided an action plan to the Disability Discrimination Commissioner, as Mrs King had so submitted and the primary judge so observed at [245]. The lack of an action plan did not have to be referred to again in order to deal with the submissions for Mrs King. The primary judge had also already dealt with the issue concerning retrospectivity at [94], [95], [146], [173] and [177], amongst other places. The findings the primary judge had made earlier in the judgment did not have to be repeated for the purpose of his analysis of the competing submissions in order to discharge the obligation to give adequate reasons. Mrs King’s submissions about the unreliability of the evidence concerning delay had also been dealt with at length and rejected by the primary judge for the reasons he gave including at [93]-[98] and [144]-[173]. The fact that the primary judge relied on these findings in respect of the issue of unjustifiable hardship does not found a case of inadequate reasons. The same answer is required to the assertion of inadequate reasons in respect of the financial analysis allegedly not relating to the year 2008. The primary judge dealt with that issue at [174]-[177]. The lack of evidence as to how and why the number of two had originally been selected is merely another way of saying the two wheelchair practice was arbitrary and thus advances the case for Mrs King no further.

58        The statement of principles about the adequacy of reasons on which the submissions for Mrs King relied, that in Hunter v Transport Accident Commission (2005) 43 MVR 130; [2005] VSCA 1 at [21], cited with approval in Police Federation of Australia v Nixon (2011) 198 FCR 267; [2011] FCAFC 161 at [67], may be accepted. On a fair reading it cannot be doubted that consistent with those principles the primary judge dealt with the substantial points which had been raised, made findings on material questions of fact, referred to the evidence upon which those findings were based, and provided an intelligible explanation of the process of reasoning that led from the evidence to the findings and from the findings to the ultimate conclusion as required. The contention of inadequate reasons is without substance and thus cannot be accepted.

Declaration

59        It was submitted for Mrs King that, as the primary judge in fact found discrimination by Jetstar against Mrs King at [186] of the reasons, the primary judge should have made (and this Court should make) a declaration to that effect. The submission is not well-founded. The primary judge found discrimination in accordance with the definition in s 5 and the terms of s 24(1)(a) of the Disability Discrimination Act. Section 24(1)(a), however, proscribed unlawful discrimination only. Section 24(2) provided that it was not unlawful to discriminate if the defence of unjustifiable hardship was established. Jetstar established this defence. Accordingly, there was no unlawful discrimination by Jetstar against Mrs King and no contravention of s 24(1)(a). Nor can there be any breach of s 5, as the declaration sought for Mrs King contemplated. Section 5 provides a definition of discrimination. The structure of the Disability Discrimination Act, which made discrimination in the provision of services unlawful only if the person providing the service did not establish unjustifiable hardship, militates against the making of any declaration as sought by Mrs King. We are not satisfied such a declaration could be made in the circumstances.

CONCLUSION

60        For the reasons given above the appeal must be dismissed. Costs would ordinarily follow the event. If either party wishes to be heard on costs they may do so by written submissions and directions will be made accordingly.

Associate:

Dated:    23 August 2012