FEDERAL COURT OF AUSTRALIA
King v Jetstar Airways Pty Ltd (No 2) [2012] FCA 8
IN THE FEDERAL COURT OF AUSTRALIA | |
| Applicant | |
AND: | Respondent |
DATE OF ORDER: | |
WHERE MADE: |
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The respondent's interlocutory application to vary the costs capping order be dismissed.
3. Subject to the costs capping order made by Moore J, the applicant pay the respondent's costs of the application.
4. Each party bears its own costs of the respondent's interlocutory application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
NEW SOUTH WALES DISTRICT REGISTRY | |
GENERAL DIVISION | NSD 1171 of 2009 |
BETWEEN: | SHEILA KING Applicant
|
AND: | JETSTAR AIRWAYS PTY LTD Respondent
|
JUDGE: | ROBERTSON J |
DATE: | 13 JANUARY 2012 |
PLACE: | SYDNEY |
REASONS FOR JUDGMENT
Introduction
1 Mrs Sheila King has a physical disability and requires a wheelchair to aid her mobility. In August 2008 she wished to book to travel from Adelaide to Brisbane on Jetstar Airways Pty Ltd ("Jetstar"), flight JQ 769, to depart at 9.45am on 23 September 2008. The aircraft was an Airbus 320 ("A320").
2 Mrs King was told by Jetstar's operative that she could not travel on that flight as two other passengers requiring wheelchair assistance had already made bookings for that flight so that the limit for such passengers had been reached.
3 The principal issue in this case arises under s 24 of the Disability Discrimination Act 1992 (Cth) ("the Act") as then in force: did Jetstar unlawfully discriminate against Mrs King on the ground of her disability?
The statutory provisions
4 The objects of the Act as then in force were set out in s 3:
(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.
5 Section 24 of the Act was in the following terms, so far as relevant:
24 Goods, services and facilities
(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.
6 "Services" was defined in s 4(1) to include services relating to transport or travel.
7 "Discriminate" and "disability discrimination" had the meaning given by ss 5 to 9, relevantly as follows:
5 Disability discrimination
(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.
6 Indirect disability discrimination
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 the discriminator requires the aggrieved person to comply with a requirement or condition:
(a) with which a substantially higher proportion of persons without the disability comply or are able to comply; and
(b) which is not reasonable having regard to the circumstances of the case; and
(c) with which the aggrieved person does not or is not able to comply.
7 Disability discrimination—palliative and therapeutic devices and
auxiliary aids
For the purposes of this Act, a person (discriminator) discriminates against another person with a disability (aggrieved person) if the discriminator treats the aggrieved person less favourably because of the fact that the aggrieved person is accompanied by, or possesses:
(a) a palliative or therapeutic device; or
(b) an auxiliary aid;
that is used by the aggrieved person, or because of any matter related to that fact, whether or not it is the discriminator’s practice to treat less favourably any person who is accompanied by, or is in possession of, and is the user of:
(c) such a palliative or therapeutic device; or
(d) such an auxiliary aid.
8 Thus, as explained in the joint judgment of Gummow, Hayne and Heydon JJ in Purvis v New South Wales (2003) 217 CLR 92 ("Purvis") at [186], the provisions of ss 5 and 6 give content to the clause "to discriminate against another person on the ground of the other person’s disability" in s 24(1) of the Act.
9 In the same judgment their Honours considered s 5 and said:
[217] What is meant by the reference, in s 5(1) of the Act, to "circumstances that are the same or are not materially different"? Section 5(2) provides some amplification of the operation of that expression. It identifies one circumstance which does not amount to a material difference: "the fact that different accommodation or services may be required by the person with a disability." But s 5(2) does not explicitly oblige the provision of that different accommodation or those different services. Rather, s 5(2) says only that the disabled person's need for different accommodation or services does not constitute a material difference in judging whether the discriminator has treated the disabled person less favourably than a person without the disability.
[218] The Commission submitted that s 5(2) had greater significance than providing only that a need for different accommodation or services is not a material difference. It submitted that, if a school did not provide the services which a disabled person needed and later expelled that person, the circumstances in which it expelled the person would be materially different from those in which it would have expelled other students. In so far as that submission depended upon construing s 5, or s 5(2) in particular, as requiring the provision of different accommodation or services, it should be rejected. As the Commonwealth rightly submitted, there is no textual or other basis in s 5 for saying that a failure to provide such accommodation or services would constitute less favourable treatment of the disabled person for the purposes of s 5.
10 "Auxiliary aid" was defined to mean:
equipment (other than a palliative or therapeutic device) that provides assistance to a person with a disability to alleviate the effect of the disability.
There was no dispute that in this case the definition included a wheelchair.
11 The expression "unjustifiable hardship", used in s 24(2), had the meaning given by s 11 of the Act as follows:
11 Unjustifiable hardship
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.
12 The relevant principle of interpretation was recently stated by the High Court in AB v Western Australia (2011) 281 ALR 694 at [24]:
The injunction contained in s 18 of the Interpretation Act 1984 (WA) is relevant to the task of construing the provisions of the [Gender Reassignment] Act [2000 (WA)]. Moreover, the principle that particular statutory provisions must be read in light of their purpose was said in Waters v Public Transport Corporation (1991) 173 CLR 349 to be of particular significance in the case of legislation which protects or enforces human rights. In construing such legislation “the courts have a special responsibility to take account of and give effect to the statutory purpose”. It is generally accepted that there is a rule of construction that beneficial and remedial legislation is to be given a “fair, large and liberal” interpretation: IW v City of Perth (1997) 191 CLR 1 at 12 per Brennan CJ and McHugh J, at 39 per Gummow J, referring to Coburn v Human Rights Commission [1994] 3 NZLR 323 at 333.
Section 18 of the Interpretation Act 1984 (WA) provided:
In the interpretation of a provision of a written law, a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object.
It was, relevantly, in the same terms as s 15AA of the Acts Interpretation Act 1901 (Cth).
13 I also note what was said in the joint judgment of Gummow, Hayne and Heydon JJ in Purvis (above) at [198] and following (footnotes omitted):
[198] In so far as those [international] instruments were said to bear upon the proper construction of the Act, however, it is necessary to notice an important respect in which the subject of disability discrimination differs from some other forms of discrimination. Central to the operation of the Sex Discrimination Act and the Racial Discrimination Act 1975 (Cth) is the requirement for equality of treatment. A central purpose of each of those Acts is to require that people not be treated differently on the ground of sex or race. Difference in sex or race is identified as a generally irrelevant consideration.
[199] By contrast, disability discrimination legislation necessarily focuses upon a criterion of admitted difference. The abilities of a disabled person differ in one or more respects from that range of abilities which is identified as falling within the band described as "normal". It follows that disability legislation must be understood from the premise that the criterion for its operation is difference. That has important consequences, not only for the lessons that may be learned from the way in which other legislatures or deliberative bodies have identified the problems that should be considered, but also for the proper understanding of the solutions that have been devised by those other bodies to answer the problems identified.
[200] Since the Act was enacted in Australia, legislation enacted in other jurisdictions has sought to give effect not just to a principle requiring equality of treatment but to what is sometimes called a "substantive conception of equality", in which the purpose is "to prevent or compensate for disadvantages". (Many of the international instruments to which we were taken must also be understood in that way.)
[201] Concepts of "difference", "disability" and "disadvantage" all depend upon comparisons. They assume that there is a person, or a group of persons, with whom it is useful and relevant to draw the comparison which is implicit in describing one person as "different", or "disabled", or "disadvantaged". Obviously, the utility and relevance of the comparison depends upon why it is being made. Different comparisons may have to be drawn according to whether the purpose is limited to ensuring that persons situated similarly are treated alike, or the purpose is wider than that. In particular, if the purpose of legislation is to ensure equality of treatment, the focus of inquiry will differ from the inquiry that must be made if the relevant purposes include ensuring equality in some other sense, for example, economic, social or cultural equality.
[202] "Substantive equality" directs attention to equality of outcome or to the reduction or elimination of barriers to participation in certain activities. It begins from the premise that "in order to treat some persons equally, we must treat them differently". Obviously there are many ways in which "substantive equality" can be defined and there are many different ways in which legislatures may seek to achieve it.
[203] The principal focus of the Act, however, is on ensuring equality of treatment. In this respect it differs significantly from other, more recent, forms of disability discrimination legislation. In particular, for present purposes, it is important to notice that, unlike the Disability Discrimination Act 1995 (UK) (the 1995 UK Act), the Americans with Disabilities Act 1990 (the ADA) or the European Community Directive for "establishing a general framework for equal treatment in employment and occupation", the Act does not explicitly oblige persons to treat disabled persons differently from others in the community. The Act does not, for example, contain provisions equivalent to ss 5 and 6 and ss 28B-28G of the 1995 UK Act which expressly oblige employers and educational authorities to make "reasonable adjustments" to accommodate disabled persons.
. . .
[207] None of the considerations just mentioned denies the importance of giving full effect to the indirect disability discrimination provisions of the Act. Well before the Parliament's enactment of the Act, the Sex Discrimination Act or the Racial Discrimination Act, it had been recognised in the United States that, in some cases, nominally equal treatment can disguise discrimination. As Gaudron and McHugh JJ were later to point out in Castlemaine Tooheys Ltd v South Australia, to proceed as if there is no difference, even though there is a relevant difference, may be discriminatory. But as later developments in connection with affirmative action and reverse discrimination legislation in the United States reveal, there is considerable room for debate about when apparently "equal" treatment is to be understood as being discriminatory and apparently unequal treatment is not.
14 Jetstar placed reliance on those paragraphs. However, in Catholic Education Office v Clarke (2004) 138 FCR 121 ("Clarke"), Sackville and Stone JJ, with whom Tamberlin J agreed, said of these dicta:
[92] In evaluating these comments it is necessary to take into account that Purvis was not argued as a case of "indirect disability discrimination" of a kind covered by s 6 of the DD Act. As Gleeson CJ noted, s 6(b) (the unreasonableness requirement) would have created a difficulty for the appellant in Purvis (at [3]). The joint judgment specifically stated (at [207]) that none of the considerations to which their Honours had referred "denies the importance of giving full effect to the indirect disability discrimination provisions of the [DD Act]". Their Honours also explicitly recognised (at [207]) that:
" ... there is considerable room for debate about when apparently "equal" treatment is to be understood as being discriminatory and apparently unequal treatment is not."
[93] The reasoning in the joint judgment in Purvis does not support the proposition that the appellants appeared to be urging, namely that the DD Act should be construed so as to preclude any requirement that an educational authority "discriminate positively" in favour of a disabled person. The concept of "positive discrimination" is itself of uncertain scope and does not provide a sure guide to the construction of the statutory language, in particular to s 6 of the DD Act. As McHugh J remarked of a comparable provision, arguments based on any concept of discrimination outside the statutory definition are not legitimate aids to the construction of the term "reasonable": Waters v Public Transport Commission, at 400. In any event, it is not appropriate to approach the task of statutory construction from a pre-determined position which rules out a particular result regardless of the language used by Parliament. There is no substitute for analysing the words of the enactment, having regard to the stated objectives of the legislation and the statutory context: IW v City of Perth (1997) 191 CLR 1 at 12, per Brennan CJ and McHugh J.
15 It will also be necessary to consider the basis of the Court's jurisdiction under the Australian Human Rights Commission Act 1986 (Cth) ("the AHRC Act"). The relevant provisions were:
46PO Application to court if complaint is terminated
(1) If:
(a) a complaint has been terminated by the President under section 46PE or 46PH; and
(b) the President has given a notice to any person under subsection 46PH(2) in relation to the termination;
any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Magistrates Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.
(2) . . . .
(3) The unlawful discrimination alleged in the application:
(a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or
(b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.
(4) If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:
(a) an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;
(b) an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;
(c) . . . ;
(d) . . .
(e) . . . ;
(f) an order declaring that it would be inappropriate for any further action to be taken in the matter.
16 Mrs King did not seek relief by way of damages as compensation. She sought a declaration, a published apology and a direction that the Jetstar not repeat or continue the conduct that she alleged was in breach of the Act against her.
Procedural history
17 The procedural history is significant because, by s 46PO(1) of the AHRC Act, it determines the jurisdiction of the Court. The question under s 46PO(3) of the AHRC Act is whether the unlawful discrimination alleged in the application to the Court was the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or whether 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.
18 Jetstar contended that the s 6 and the s 24(1)(b) claims by Mrs King could not be pursued in this Court because they were not referred to in the terminated complaint.
19 A copy of Mrs King's complaint to the Australian Human Rights Commission formed Attachment B to the notice dated 17 August 2009 under s 46PH(2) of the AHRC Act in relation to the termination of her complaint by the delegate of the President. Her complaint took the form of an e-mail sent on 15 August 2008. I do not set it out as establishing the truth of its contents, because some of its contents proved controversial in the proceedings before me, but it was in the following terms:
I wish to make a complaint of discrimination against Jet Star Airlines under the DDA.
On the 12th August I paid for and made a confirmed booking under Jet Star reference S2MHCE to take me on a flight JQ769 from Adelaide to Brisbane. At that time I was returning from giving a presentation at the Australian Rehabilitation & Assistive Technology's ‘Creating Value Through Participation’ conference in Adelaide. I live in Hervey Bay Queensland.
My itinerary was that the Jet Star booking from Adelaide to Brisbane would connect with the Qantas Link flight QF2380 to take me to the Fraser Coast where I live.
On telephoning Jet Star this morning to confirm that I was taking my wheelchair I was told that I could not take my own wheelchair on the plane and that all of their wheelchairs had been booked and therefore there was no way I could go on that flight.
I ticked the necessary box for a wheelchair when I did my booking, but I'm now advised by JetStar that before I bought my flight I should have telephoned to ensure that I could take my wheelchair. This was news to me as I have never done so before and they confirmed that there is nothing on their web site stating that this is required to be done.
20 Also relevant as indicating the unlawful discrimination that was, or the acts, omissions or practices that were, the subject of the terminated complaint is the response of Jetstar dated 5 December 2008. Again, I do not set it out as establishing the truth of its contents, because some of that proved controversial in the proceedings before me, but it included the following:
Ms King has made a number of complaints, in which she alleges the following:
∙ she booked travel on 12 August 2008 via jetstar.com on Jetstar flight JQ769 for travel on 23 September 2008 from Adelaide to Brisbane but when she later telephoned to confirm that she could take her wheelchair in the aircraft cabin, she was advised that Jetstar's limit of 9 wheelchairs per flight had been reached;
∙ she was advised that she could not take her wheelchair in the aircraft cabin; an
∙ she was required to make alternative arrangements to travel from Adelaide to Brisbane on a more expensive flight with another airline.
. . .
Whilst it is possible for two passengers to book wheelchair assistance per flight on jetstar.com by indicating a requirement for a wheelchair on-line at the time of booking, I confirm that Ms King's booking did not unfortunately record a request for a wheelchair. In any event, Ms King needed to contact Jetstar Reservations to advise Jetstar of her requirements regarding wheelchair assistance (which is addressed further below).
. . .
Passengers who require wheelchair assistance must contact Jetstar Reservations prior to their scheduled travel to advise Jetstar of the level of assistance they require. At the time Ms King made her booking, information regarding this requirement could be found on jetstar.com under "Important Information: Limited Special Assistance" on the "Select Flights" page and under "Ask Jetstar " found at the bottom of "Home" page on jetstar.com. The information is also found in sections 4.5 and 5.3 of Jetstar's Conditions of Carriage.
Jetstar has since reviewed its web site in relation to the information it provides regarding its limited special services.
21 The application to this Court filed on 16 October 2009 sought orders for declarations in respect of contraventions of the Act, it being claimed that the conduct of Jetstar was unlawful discrimination in breach of ss 5, 6, 7, 23, 24 and 32. The application sought an order directing Jetstar to cease enforcing its policy of limiting the number of passengers who require wheelchair assistance to two passengers per flight. The grounds were stated in the accompanying affidavit sworn by Mrs King on 14 October 2009.
22 The statement of claim, as amended in the course of the hearing, was in substance as follows: the effect of Jetstar's conduct was to refuse Mrs King the service constituted by flight JQ 769. Alternatively, the effect of Jetstar's conduct was to impose a term or condition on which Mrs King would be permitted to travel on flight JQ 769, that is, that she not use a wheelchair or that she not require wheelchair assistance in boarding and disembarking the aircraft. The pleading then referred to Jetstar's practice of accepting no more than two passengers requiring wheelchair assistance on its domestic flights using A320 aircraft.
23 Mrs King withdrew her claim that the conduct was in contravention of the Disability Standards for Accessible Public Transport 2002 (Cth). She also withdrew her claim that there was a breach of s 23 of the Act relating to refusal of access to premises.
24 The parties referred to Simplot Australia Pty Ltd v Human Rights and Equal Opportunity Commission (1996) 69 FCR 90; Travers v New South Wales [2000] FCA 1565; Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573; Turner v State of Victoria (Department of Human Services) [2011] FCA 459 and Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118 ("Dye"). For a summary of the principles I refer to the judgment of the Full Court in Dye at [43]-[48].
25 The point of reference in s 46PO(3) is the unlawful discrimination alleged in the application to the Court: it is that which must either be the same as or the same in substance as the unlawful discrimination that was the subject of the terminated complaint or which must arise out of the same or substantially the same acts, omissions or practices that were the subject of the terminated complaint. I emphasise the alternative. It is sufficient if the unlawful discrimination alleged in the application to the Court arises out of the same or substantially the same acts, omissions or practices that were the subject of the terminated complaint
26 I therefore reject Jetstar's submission that if the unlawful discrimination the subject of the terminated complaint was only within s 5 and not s 6 the applicant could not rely on indirect discrimination in this Court. This is because in this case 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.
27 Similarly, the point of the amendment dated 1 November 2011 was to bring in s 24(1)(b) to include an allegation that Jetstar's conduct discriminated against Mrs King in imposing one or other terms or conditions on which Mrs King would be permitted to travel on flight JQ 769, those terms or conditions being, first, that she not use a wheelchair and, second, that she not require wheelchair assistance in boarding and disembarking the aircraft.
28 In my view, s 46PO(3) does not prevent an amendment which does no more than put a different legal complexion on the same or substantially the same acts, omissions or practices. In the present case, so far as concerns the amendment, because no different acts, omissions or practices were pleaded, s 46PO(3)(b), at least, was satisfied.
29 I note that in the amendment application Senior Counsel for Mrs King expressly stated that there was to be no further written or oral evidence by virtue of the amendment. He also stated that the terms and conditions referred to in the then proposed amendment could not be termed as contractual in nature. Senior Counsel also accepted that it was for the applicant to show at an evidentiary level what those non-contractual terms and conditions were. Lastly Senior Counsel said the amendment would not involve any additional cross examination of the respondent's witnesses. I do not state these matters in order to suggest that there should be a minute comparison between the facts in the terminated complaint and the facts in the application to the Court but because this was the basis on which the amendment application was put and, so as to prevent prejudice to the respondent, the basis upon which I allowed it.
Application of the Act
30 There was some debate before me as to the application of the Act to Jetstar in the circumstances of this case.
31 Section 12 of the Act was, relevantly, in the following terms:
12 Application of Act
(1) In this section:
. . .
limited application provisions means the provisions of Divisions 1, 2 and 3 of Part 2 other than sections 20, 29 and 30.
(2) . . .
(3) . . .
(4) The limited application provisions have effect as provided in . . . the following provisions of this section and not otherwise.
. . .
(8) The limited application provisions have effect in relation to discrimination against a person with a disability to the extent that the provisions:
(a) give effect to the Convention; or
(b) give effect to the Covenant on Civil and Political Rights; or
(c) give effect to the International Covenant on Economic, Social and Cultural Rights; or
(d) relate to matters external to Australia; or
(e) relate to matters of international concern.
(9) The limited application provisions have effect in relation to discrimination by a foreign corporation, or a trading or financial corporation formed within the limits of the Commonwealth, or by a person in the course of the person’s duties or purported duties as an officer or employee of such a corporation.
(10) Without limiting the effect of subsection (9), the limited application provisions have effect in relation to discrimination by a trading or financial corporation formed within the limits of the Commonwealth, or by a person in the course of the person’s duties or purported duties as an officer or employee of such a corporation, to the extent that the discrimination takes place in the course of the trading activities of the trading corporation or the financial activities of the financial corporation, as the case may be.
(11) . . .
(12) The limited application provisions have effect in relation to
discrimination in the course of, or in relation to, trade or commerce:
(a) . . . ; or
(b) among the States; or
(c) . . . ; or
(d) . . . .
. . .
32 The debate centred on that application of the Act which depended on the external affairs power: s 12(8) of the Act and s 51(xxix) of the Constitution.
33 If that had been the only constitutional head of power relied on it might have been necessary for me to analyse the Convention or the Covenants or the other matters listed in s 12(8). However this analysis is unnecessary in light of the straightforward application of the “limited application provisions”, which included ss 11 and 24, in the present case. Those provisions had effect in relation to discrimination by a trading corporation formed within the limits of the Commonwealth (ss 12(9) and 12(10) and s 51(xx) of the Constitution) and in relation to discrimination in the course of or in relation to interstate trade or commerce (s 12(12)(b) and s 51(i) of the Constitution).
34 On those bases at least I find that the "limited application provisions" applied to Jetstar. It was not suggested that Jetstar was not such a trading corporation or that the flight in question was not in interstate trade or commerce.
The facts
35 There was a limited factual dispute between the parties as to the acts said to constitute discrimination. There was a larger factual dispute between them as to whether any requirement or condition which might constitute indirect discrimination was "not reasonable" and whether the provision of the services would impose "unjustifiable hardship" on Jetstar.
36 On 9 June 2008, a travel agent made a booking for two passengers (neither of them being Mrs King) for flight JQ 769 from Adelaide to Brisbane on 23 September 2008 at 9.45am. On the same day a wheelchair assistance code was added to their booking.
37 Mr Lobascher, Jetstar's Client Solutions Coordinator, gave evidence that once a passenger had advised Jetstar of his or her specific needs, the passenger was assigned a code, including the Special Service Requests codes for wheelchair assistance: WCHR, WCHS and WCHC. In each case the WCH signified wheelchair, while:
R signified Ramp, where the passenger needed assistance due to the distance from and to the aircraft (such as between check-in and boarding). A passenger with this code was able to ascend and descend steps unassisted and could make his or her own way within the aircraft cabin to and from the seat.. In Jetstar's Commercial Policy & Procedures Manual, version 5.1 printed on 24 August 2010 but which applied in August 2008 (“Jetstar's Manual”), WCHR had the short description "Can Climb Stairs";
S signified Steps, where the passenger could not ascend/descend steps unassisted. If there was no aerobridge available, a passenger lift would be used to lift the passenger between the tarmac to the top of the aircraft stairs. A passenger under this code could make his or her own way within the aircraft cabin to and from the seat. In Jetstar's Manual, WCHS had the short description "Can’t Climb Stairs";
C signified Cabin Seat and was the code used for passengers who were generally immobile and may require assistance with transfer into or out of the aircraft seat. In Jetstar's Manual, WCHC had the short description "Chair Bound".
38 In August 2008, passengers who booked a flight using Jetstar's website could select "wheelchairs" under a Special Service Request.
39 On 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. I find that when Mrs King used Jetstar's website she did not request, or indicate that she required, wheelchair assistance for her proposed travel, that is, she did not select "wheelchairs" under a Special Service Request.
40 On the same day, Mrs King paid $132 to Jetstar by credit card and once the credit card was accepted she got an e-mail back from Jetstar. Attached to the e-mail was her itinerary. A "Jetstar Itinerary" showed the same date.
41 I find that pages 3 to 7 of Mrs King's travel itinerary were included in what was e-mailed to her and those pages were in the form exhibited to the affidavit of Mr Lobascher of 2 November 2011.
42 Next, Mrs King's evidence was that she telephoned Jetstar on 13 August 2008 about her travel arrangements for 23 September 2008 on JQ 769. Jetstar submitted that this conversation did not take place. I find that such a conversation did take place because on 14 August 2008 Mrs King wrote to Jetstar asking for a refund. That request referred to a telephone conversation which must have taken place by the date of the letter.
43 On 15 August 2008 Mrs King sent an e-mail to the Australian Human Rights Commission lodging a complaint.
44 Jetstar's contemporaneous written record showed a telephone conversation with Mr Eddie Al-Dabbagh, a Jetstar operative, on Saturday 16 August 2008 which contained a complaint by Mrs King to the effect that she “was told that she can not take a Wheel chair with her to the flight booked as the max limit has been reached.” Mrs King advised “she was not aware there are Limited places for Wheel chairs and she can not travel without one. Adv pax we can move her for free to next available flight but pax declined”.
45 This was the second area of dispute in that Mrs King's evidence was that that conversation occurred on 14 August 2008.
46 I find that the telephone conversation between Mrs King and Mr Al-Dabbagh occurred on 16 August 2008 because that is the date supported by the contemporaneous documents being the records of Jetstar and Mrs King's correspondence in support of her complaint, and it is also the date to which Mrs King deposed in her two earlier affidavits.
47 However I do not regard this dispute, or the resolution of it, as being significant to the substantive issues in the case.
48 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. Mrs King declined the offer of an alternative flight.
49 A substantial consideration in Mrs King's choice of airline was the price of the fare. A Virgin Blue invoice showed the date 16 August 2008 for the same travel from Adelaide to Brisbane on 23 September 2008 but at a fare of $40 more. Mrs King took this flight.
50 In August 2008, Jetstar had a "Limited Special Assistance" page on its website. It stated, relevantly:
Customers who require wheelchair assistance must advise Jetstar that they have a disability and require assistance at the booking stage.
Customers requiring wheelchair assistance can book their flights through Jetstar.com or by contacting Jetstar Reservations. If flights are booked through Jetstar.com, customers must also contact Jetstar Reservations to advise Jetstar of their mobility limitations (as described below).
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.
In order for us to understand the level of assistance required, customers must advise Jetstar through Jetstar Reservations (either at the time of booking via telephone or after making your booking via jetstar.com) about their level of mobility and in particular, which of the options below most accurately describes their mobility limitation: Please identify from the following:
A: I am unable to walk to the gate lounge, however I am able to ascend and descend the stairs without assistance.
B: I am unable to walk to the gate lounge and I am unable to ascend and descend the stairs without assistance.
C: I will require full assistance to the gate lounge and to board the aircraft.
At the Airport
All customers travelling with a wheelchair must check-in 2 hours prior to flights departing from a domestic terminal and 3 hours prior to flights departing from an international terminal.
Jetstar provides customers with a wheelchair in which to transfer at check-in. Jetstar customer service staff will assist in the transfer into the wheelchair, using Jetstar's approved transfer method of slide boards and slide cloths.
If required, a Jetstar customer service staff member will then escort a customer who requires wheelchair assistance from check-in through security to their boarding gate. If the customer is travelling with a carer/companion who is willing to escort the customer, a Jetstar customer service staff member will organise to meet the customer(s) at the boarding gate.
Baggage: The customer's wheelchair must be checked-in as baggage. Wheelchairs or mobility aids are carried free of charge on Jetstar services and are carried in addition to the baggage allowances applicable to the customer's travel itinerary. When a customer has more than one wheelchair or mobility aid(s), the second mobility aid will be charged as excess baggage. This includes wheelchairs, electric wheelchairs and electric scooters.
In-flight
Customers who have mobility limitations will be given priority when boarding the aircraft and will be provided with an individual safety briefing.
On board all of our aircraft there is one aisle wheelchair that can be used to access the aircraft aisle. Jetstar staff will assist customers to transfer to and from the aisle wheelchair using Jetstar's approved transfer method of slide boards and slide cloths.
Jetstar staff will use the aisle wheelchair to assist customers between the aircraft door and the aircraft seat when boarding and disembarking and/or to assist a customer to and from the bathroom during flight.
Due to aviation safety regulations, customers with mobility limitations will not be allocated an exit row seat.
51 I now turn to 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. This is relevant both to the identification of the “service” for the purposes of the 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.
52 Mrs King had the capacity to walk with assistance a distance of 10 metres and no more and about three metres without assistance, in either case at a substantially slower pace than normal walking speed. Mrs King's preference was to do the minimal amount of walking that she needed to do and her preferred way of moving around was to use her wheelchair.
53 Mrs King therefore would have needed assistance to move around the airport and it would have been impossible for her to so move unless she had assistance.
54 In September 2008 when Mrs King wished to travel between Adelaide and Brisbane she wished to travel only with her collapsible manual wheelchair rather than a more substantial electric wheelchair. That involved checking in the collapsible wheelchair at the check-in desk and a Jetstar staff member would have assisted Mrs King to transfer to an aisle chair, a narrower type of wheelchair. Another member of the airline staff would have taken Mrs King's collapsible manual wheelchair to put it on the relevant baggage ramp. Mrs King also would have needed some assistance from a Jetstar staff member to put any check-in luggage on the baggage ramp.
55 Mrs King also would have needed assistance from a Jetstar staff member to take her and the wheelchair through the security process although this would not have involved Mrs King needing to get out of her wheelchair and move independently.
56 Once through the security clearance, the next step at which Mrs King would have needed assistance from the staff of Jetstar was to take her in the aisle chair to the relevant departure gate. At the departure gate it would not have been necessary for anybody to wait with Mrs King until the flight was ready to be called.
57 From the departure lounge, where an aerobridge was used, which was the case at Adelaide airport, a staff member of Jetstar would have assisted by moving the wheelchair to the front entrance of the aircraft and then Mrs King would have been assisted out of the wheelchair for the step between the aerobridge and the aircraft. Thereafter Mrs King would have made her way to her seat by putting one hand on one seat and one hand on the other. For that reason her practice was to try to book a seat as close to the front of the aircraft as possible to minimise the amount of walking involved.
58 Alternatively, where the aircraft was at a stand-off bay and an aerobridge was not used, which I find was the case for the majority of Jetstar's flights, the staff member of Jetstar would have assisted Mrs King from the departure lounge to the door which allowed access to the tarmac. In some cases this involved taking her in a roundabout way to various lifts that were a small distance further from the departure gate. In some cases there would be a wheelchair accessible bus so that Mrs King could walk up the ramp but she needed assistance to move on and off the bus. Whether a bus was used or not, Mrs King would be taken to a place on the tarmac so that she could use a passenger lifter. The passenger lifter would be moved to a particular position at the front of the aircraft. Mrs King was wheeled to the front of the lifter, she got out of the wheelchair, walked into the passenger lifter, held the grab rail and stood up in the passenger lifter, sometimes with a person from the airline in the lifter with her, while another staff member operated the lifter from ground level. The passenger lifter lifted Mrs King up to about 2 metres off the ground so that a Jetstar staff member could then open the front of the passenger lifter gate for Mrs King to exit the lifter by going around three sides of the lifter platform and onto another small platform. She then entered the front door of the aircraft. When it had been raining and the surfaces were slippery Mrs King used the staff member in the lifter to give her assistance to walk across the platform.
59 Once seated in the plane, if Mrs King had hand luggage she would use the assistance of the flight attendants to stow any hand luggage in the overhead cabin, although she did not remember having had enough luggage to stow in an overhead locker. For the duration of the flight Mrs King did not require any assistance.
60 To disembark, once the other passengers had disembarked Mrs King walked to the front of the aircraft using the seat arms and then she would sit and wait for a member of the airline staff to bring a wheelchair to the front door of the aircraft.
61 Where an aerobridge was used the staff member took Mrs King from the aeroplane along the aerobridge and to the arrival lounge. If the airline did not have the staff available, Mrs King had to sit and wait. It might be a different staff member who took Mrs King to the baggage carousel.
62 Where there was no aerobridge, the passenger lifter was brought to the aircraft and the reverse of the earlier process was carried out so that Mrs King was assisted from the row of seats nearest to the aircraft door to the aircraft door and into the passenger lifter where she was lowered on to the tarmac. She was then assisted out of the passenger lifter into the aisle chair which was on the tarmac and wheeled by a member of the airline staff across the tarmac until she reached the arrival lounge. At that point it was common for her to wait for another staff member of the airline to wheel her to the baggage carousel.
63 Given her level of mobility disability it was impossible for Mrs King to do any of those tasks without assistance from the airline staff and maybe three or four different members of the airline staff helping her through the whole of the process from check-in to disembarkation and collecting her luggage.
64 Once Mrs King was at the carousel she then waited for the wheelchair to come out at a separate entrance next door to the carousel and a member of staff opened out the wheelchair. Mrs King was assisted out of the aisle chair and into her wheelchair. She was not always so assisted by a member of the airline. If the airline staff member waited for Mrs King to collect her wheelchair then that member of staff would also collect her baggage. Once she had her bags, Mrs King could get herself outside to the taxi rank or to the vehicle of whoever was collecting her.
65 Mr Lobascher said that Jetstar provided assistance to passengers requiring wheelchair assistance, wherever operationally possible, at the stages of booking; after booking and prior to arrival at the airport; at the airport including at check-in, from check-in to the gate and from the gate to the aircraft; during the flight/on board the aircraft; and after the flight – from the aircraft to the baggage claim area.
66 Mr Lobascher summarised the additional tasks to be completed at the airport for passengers requiring wheelchair assistance. These were checking in a wheelchair; transfer from wheelchair to Jetstar wheelchair; from check-in to the gate; from gate to aircraft and, after the flight, from the aircraft to the baggage claim area.
67 In broad terms these additional tasks to which Mr Lobascher referred were similar to those which Mrs King described in her evidence. His evidence which supplemented Mrs King's was as follows.
68 Once the passenger advised Jetstar of his or her specific needs, the passenger was assigned a code, including the Special Service Requests codes. Jetstar used the codes to make arrangements for special assistance to be provided at the airport, where a Jetstar staff member met the passenger at check-in and assisted them to the gate.
69 Mr Lobascher said that passengers with specific needs could use any check-in counter to check-in for that flight. However passengers with specific needs were unable to use the electronic check-in or web check-in because they were required to confirm their specific needs, the level of assistance requested and provide any documentation required to travel with Jetstar at the check-in desk.
70 Jetstar staff may assist passengers who require or request assistance from check-in to the gate at the point of security screening. Those passengers underwent screening by way of a pat down search by a security officer and may require X-ray or explosive trace detection testing. A manual pat down took longer than a metal detector scan.
71 Passengers requiring wheelchair assistance board the aircraft only through the forward door. This was because it was not safe to use the passenger lifter at the rear door and because passengers requiring assistance were seated at or near the front of the aircraft to ensure assistance could be provided to them during the flight if necessary.
72 Both Mrs King and Jetstar tendered estimates of the time these activities would take.
73 Mrs King's estimates were done when she was travelling out of Hervey Bay and on a Virgin Blue flight and were not done using Jetstar. They were not done in 2008. They involved a stopwatch only up to Mrs King getting on the passenger lifter and were otherwise an estimate based on Mrs King's usual experience with Virgin Blue.
74 Mrs King said that to transfer from her mobility aid to an aisle chair took about two minutes; to be wheeled through security to the gate in the departure lounge took approximately five minutes and boarding an aircraft using an aerobridge took about two and a half minutes from the departure lounge to the aircraft door. She was then assisted from the aircraft door to the row of seats nearest to the aircraft door by holding onto the arm of a staff member for stability when walking and that process took approximately one and a half minutes. Once she reached the row of seats nearest to the aircraft door she was able to walk unassisted to her designated seat. This took approximately one minute. These times for assistance therefore totalled 11 minutes where there was an aerobridge.
75 Where there was no aerobridge Mrs King was wheeled from the gate in the departure lounge across the tarmac to an electronic lift and this took approximately two minutes. Being put into the passenger lift took approximately two minutes. She did not refer in her affidavit to the time in the passenger lift. These additional times total at least four minutes less the two and a half where an aerobridge was used. These times for assistance therefore totalled at least twelve and a half minutes where no aerobridge was used.
76 Mrs King's general estimate was that it would take about five minutes to travel from the check-in counter to her designated seat but that time was increased by the time she spent waiting for staff members of the airline to meet her at different stages of the boarding to assist. When disembarking it would take approximately five minutes for her to travel from her designated seat in the aircraft to the baggage carousel and this time also was increased by the time she spent waiting for staff members of the airline to meet her at different stages of the disembarkation to assist.
77 I next consider Mr Lobascher's study and time estimates.
78 In December 2010 and February 2011 Mr Lobascher conducted what he called a time and motion study of the steps required to board and disembark passengers requiring wheelchair assistance. The study was conducted for use in the present proceedings. He conducted the study at Melbourne Tullamarine airport when the aircraft was parked at a stand-off bay with boarding via the front and rear stairs rather than at a gate using an aerobridge and stairs. Mr Lobascher said that the tests were performed using real passengers to ensure accuracy. Melbourne Tullamarine airport represented, he said, a reasonable average of the distances and complexities found in Jetstar's domestic airports. The study recorded only the tasks involved in Jetstar staff interacting with the passenger from check-in to the aircraft door.
79 Mr Lobascher undertook the study at Tullamarine for two days in December 2010 and one day in January 2011. On each day there were multiple time recordings and the WCHR and WCHS case studies were an average of the time taken for each sector. The WCHC category was done at a later stage, in February 2011, because on the days of conducting the tests in December 2010 those passengers who had self identified as WCHC passengers were, according to Mr Lobascher, actually WCHS passengers.
80 Mr Lobascher's study estimated that for boarding WCHR passengers it took between approximately nine and ten minutes to provide a passenger with assistance from check-in to the base of the aircraft stairs. This did not include use of the passenger lifter which would add approximately another four minutes.
81 For disembarking WCHR passengers it took approximately six minutes to provide assistance from the aircraft to baggage claim. This did not include use of the passenger lifter. For disembarking, use of a passenger lifter would add between two and three minutes.
82 For boarding WCHS passengers, Mr Lobascher's study indicated that it took between approximately 13 and 14 minutes to provide a passenger with assistance from check-in to boarding the aircraft.
83 For disembarking WCHS passengers it took approximately nine minutes to provide assistance from the aircraft to baggage claim. Whether embarking or disembarking, for WCHS passengers these estimated times included the passenger lifter.
84 For boarding WCHC passengers the approximate time taken was between 17 and 18 minutes to provide assistance from check-in through to boarding.
85 For disembarking WCHC passengers the approximate time taken to provide assistance was nine minutes from the aircraft to the baggage claim.
86 These studies did not include the additional time taken to return the wheelchairs to their starting positions to allow them to be used by another passenger.
87 If more than one passenger needed to be assisted Jetstar staff would relay by moving one passenger, coming back and then moving the next passenger. This was said to be particularly problematic where there was a significant distance between check-in and boarding gate and Mr Lobascher gave the examples of approximately 1.5 kilometres at Adelaide airport and 1 kilometre at Brisbane airport.
88 Passenger lifters were used to transfer passengers requiring wheelchair assistance from the tarmac to the aircraft at most of the airports from which Jetstar operated. However, there was one airport which was an exception to this. At Adelaide airport all aircraft boarded using aerobridges (and possibly rear stairs) and there were no stand-off bays for boarding. Thus there were no passenger lifters at Adelaide airport.
89 Aerobridges were only used exclusively at Adelaide airport and were used in some cases at other capital city airports, although that was not Jetstar's preference. The majority of Jetstar flights were boarded using stand-off bays.
90 Jetstar could not use a passenger lifter where the aircraft was parked at an aerobridge.
91 Mr Lobascher said that the time taken to board passengers requiring wheelchair assistance from the gate to the aircraft door using an aerobridge was between one and two minutes depending on the length of the aerobridge. There was the same amount of time taken to transfer passengers from check-in to the gate and to the baggage claim as estimated in the time and motion study. Mr Lobascher also said that using the aerobridge involved additional time for WCHC passengers to be transferred from a manual wheelchair to an aisle wheelchair to the aircraft seat and back again. In cross-examination Mr Lobascher agreed that it was certainly quicker for wheelchair passengers to embark and disembark through an aerobridge than through a passenger lifter and fewer staff were required to board or disembark passengers in a wheelchair through an aerobridge rather than through a passenger lifter.
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.
95 I find 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.
96 The findings I make in relation to the times for assistance are as follows. For passengers designated WCHR, 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, 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, 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 for the purposes of s 24
99 The next factual matter the subject of dispute was the identification of the service for the purposes of s 24 of the Act.
100 Mrs King wished to travel by air and she wished to be assisted onto the aircraft. I have set out above the assistance with which she would have been provided.
101 Mrs King submitted that Jetstar offered air passenger transport services and Jetstar directly discriminated against her by refusing to provide her with the service of flight JQ 769 for travel on 23 September 2008. Alternatively, Mrs King submitted, Jetstar discriminated against her in the terms or conditions on which it provided the service of flight JQ 769 for travel on 23 September 2008. On this formulation the service was flight JQ 769.
102 Jetstar submitted that the services had to be identified as a question of fact and identified with precision. Reference was made to IW v City of Perth (1997) 191 CLR 1 ("IW") at 16-17 and Waters v Public Transport Corporation (1991) 173 CLR 349 ("Waters") per McHugh J at 404-405.
103 Jetstar submitted that the service in issue was not simply a transport/travel service between Adelaide and Brisbane on JQ 769. By its very nature, a Jetstar flight between Adelaide and Brisbane would have a limited number of seats. It was not a service on demand but the service was necessarily limited to that specifically offered by Jetstar based on its scheduling and timetables. The service of conveying a person between one location and another, it was submitted, was travel on a particular flight, from a particular location and at a particular time. If there were no seats available on a flight, then there was no service which could be provided. It did not follow that simply because a flight had sold out that a person had been refused a service. The Act did not require a person to provide a new, varied or different service: Scott v Telstra Corporation Ltd (1995) EOC 92-717 ("Scott") at 78,398; Waters at 361; IW at 17, 24 and 45; Wood v Calvary Hospital [2005] FMCA 799 at [23] appeal dismissed: Wood v Calvary Health Care ACT Ltd (2006) 155 FCR 489.
104 The submission continued that the service sought by Mrs King was not simply travel on JQ 769 on the particular day. Mrs King sought services in addition to a seat on a flight from Adelaide to Brisbane. In August 2008 Mrs King raised or enquired about special assistance services which were a specific class of services offered by Jetstar to a specific class of persons. In this respect, it was submitted, she sought a service over and above the services provided to customers without a mobility disability.
105 It was Mrs King's requirements for assistance and the meeting of them by Jetstar staff, which I have set out above, which constituted the "services" for which Jetstar contended.
106 The submission further continued that the evidence showed that Jetstar offered special assistance services but those services were limited. In the same way that there were a limited number of seats on any flight, there were a limited number of special assistance services on a flight. In this case, it was submitted, the limited special assistance was no longer a service available on JQ 769 on 23 September 2008 as on 9 June 2008 other customers requiring special assistance had booked on the particular flight. If Mrs King had booked prior to 9 June 2008 the special services would have been available to her. Jetstar did not refuse to provide a service which by 12 August 2008 was no longer being offered for that flight. Thus it was submitted that there was no refusal to provide a service.
107 In reply Mrs King maintained her submission that the service was travel on flight JQ 769 between Adelaide and Brisbane on 23 September 2008. It was the transportation of Mrs King from one destination to the other that she and all other passengers were provided with. No passenger was entitled to purchase from Jetstar a discrete part of that service: they were bound to accept the same service.
108 In answer to Jetstar's submission that the service in question was that of special assistance services to persons with a mobility disability, in addition to a seat on the flight, which special services were unavailable, Mrs King submitted that all passengers required assistance at some level to board an aircraft. In the same way as aligning stairs or aligning an aerobridge, without which no Jetstar passengers could board the aircraft, the alleged special assistance services should be seen as activities which facilitated the use of the relevant service of air travel on that flight. Special assistance was not an end in itself but rather was a means to providing the actual service, namely flight travel.
109 It followed, Mrs King submitted, that the need for special assistance was not a "service" that she was refused but rather, given Jetstar's limits on the provision of special assistance as a means to facilitating the provision of the ultimate service, Mrs King was denied carriage on the flight.
110 Mrs King also contended that a person with a mobility disability may require additional or different assistance in the provision of the overall service and Mrs King sought to rely on s 5(2) of the Act. It was submitted that the fact that a person with a mobility disability may require additional or different assistance in the provision of the overall service was addressed by that subsection. Mrs King submitted that to separate general services of air travel and special services for people with a mobility disability rendered s 5(2) redundant.
111 Mrs King relied on the judgement of McHugh J in Waters at 405 and submitted that at no point did his Honour suggest that the specific service was "assisting persons with their tickets" rather than the provision of public transportation by tram.
112 Waters concerned a direction by the Minister for Transport for Victoria to introduce "scratch tickets" to be validated by the traveller making a scratch mark on the ticket in a designated place to indicate the journey being undertaken, and the removal of conductors from some trams. It was alleged that the introduction of scratch tickets and the removal of conductors constituted discrimination against the complainant in particular and against impaired persons generally. Section 29(1) of the Equal Opportunity Act 1984 (Vic) was in similar terms to s 24 of the Act.
113 Mason CJ and Gaudron J held at 361 that it was open to the Board to identify the service provided by the Corporation with more or less particularity and in the context of the complaints with respect to the removal of conductors the Board might have identified the service as the provision of transport by trams, some of which had conductors and some of which did not. Deane J relevantly agreed with Mason CJ and Gaudron J.
114 Brennan J's analysis was in the minority. His Honour identified the relevant service by referring, at page 373, to the special services provided by conductors for the disabled and the general tram service available to the travelling public. By withdrawing conductors from modern trams, the Corporation refused to perform the special services theretofore available to the disabled. However in so acting, Brennan J said, the Corporation treated the disabled and the general public alike for the special services which had been provided by conductors had never been available to those who were not disabled. In my view, there is a strong similarity between the approach of Brennan J to the identification of the relevant service and the submissions of Jetstar in the present case.
115 At page 394 Dawson and Toohey JJ said that the description of the service provided by the respondent was a question of fact to be determined by the Board and it was clearly open to the Board to define the service provided by the respondent as public transport.
116 McHugh J, at 404-405, said that the goods or services which must be identified are those goods or services which are relevant to the complainant: before there could be a finding of discrimination by a person in relation to the provision of goods or services, therefore, the relevant goods or services must be identified with sufficient precision to relate them to the facts of the case and the issues which arise for determination. McHugh J held that the Board erred in law in assuming that the relevant services were "the public transport system". The generality of that identification of the services went far beyond what was relevant to the facts and issues of the case.
117 In IW, the Perth City Council had refused to provide planning approval for the use of premises as a daytime drop-in centre for persons who were HIV positive.
118 Brennan CJ and McHugh J held, at 17-18, that the Council did not provide a service of giving planning approvals.
119 However Dawson and Gaudron JJ, at 22-24, held that the relevant provision should be construed as widely as its terms permitted. In particular, "services", a word of complete generality, should not be given a narrow construction unless that was clearly required by definition or by context. Thus their Honours said that the word "services", in its ordinary meaning, was apt to include the administration and enforcement by the City of Perth of the Planning Scheme. That being so, the Tribunal was correct in holding that "in administering a town planning scheme…, regulating the use of land…, securing provision for traffic…, and generally implementing or enforcing measures directed to the amenity of the area,… the City of Perth [was] providing a service to residents". Their Honours held that, within the context of s 66K(1) of the Equal Opportunity Act 1984 (WA), a person who provided a service by exercising a discretion to grant or withhold approval may discriminate against a person in the exercise of that discretion by refusing to exercise it at all (para (a)), by imposing terms and conditions (para (b)), or by exercising it in a particular manner (para (c)).
120 Toohey J, at 28, held that it was too narrow to say that the only service provided by the Council was the consideration of an application for approval and that it had provided the service by considering the application. His Honour held that it was the disposition of the application which either provided or refused the service and that the appellant's real case was that in exercising its discretion in the disposition of the application the Council acted in a discriminatory manner.
121 Gummow J, at 39, held there was ample authority that remedial legislation was to be accorded "a fair, large and liberal" interpretation rather than one which was "literal or technical". Those phrases were of importance, particularly in construing the term "services". His Honour held, applying Farah v Commissioner of Police of the Metropolis [1998] QB 65 at 83, that the Council was providing services whether it granted or refused a particular application for consent.
122 Kirby J, at 72, held that the better construction of the word "services", read in its context, was that it included the provision by a local government body, such as the Council, of a planning decision to alter the permissible use of premises, without which such use would be unlawful.
123 Mrs King also relied on Ball v Silver Top Taxi Service Ltd [2004] FMCA 967; (2005) EOC 93-370 for the proposition that the service was the same whether the company was providing a taxi for a wheelchair passenger or not, even though the company provided extra staff and procedures for people in wheelchairs. That case however does not assist because the respondent Silver Top conceded that the services provided by it were services that could be characterised as "services relating to transport or travel" for the purposes of s 4(1) of the Act.
124 Mrs King submitted that, as noted in IW at 18, "not every process or activity which results in a benefit or advantage to an individual is a service that is provided to that individual". In my view however the context with which Dawson and Gaudron JJ were there dealing was the process by which the Council considered applications for planning approvals. Their Honours immediately followed the observation on which Mrs King relied with the following:
When the deliberative and quasi-judicial nature of the application process is identified and analysed, it cannot sensibly be described as a "helpful activity" provided by the Council to applicants for planning approval. The Council is an adjudicator, not a servant of an applicant.
125 In answer to these submissions, Jetstar submitted that the evidence demonstrated that the services required by a customer using a wheelchair were significantly different to a customer without a wheelchair when it came to check-in, assistance within the airport, boarding and disembarking an aircraft. Mrs King's complaint was not about a discrete part of the service but was assistance from check-in to her seat on the flight and then on arrival from her seat to collection of baggage. Mrs King did not want just the service of transportation on JQ 769 between Adelaide and Brisbane Mrs King specifically said that she did not want to travel on JQ 769 on 23 September 2008 unless those special services, collectively and cumulatively, were provided. These were the services, Jetstar submitted, Mrs King considered she had been refused.
126 As to s 5(2) of the Act, Jetstar submitted that the reference to Purvis at [104] was to a dissenting judgment and the majority rejected the contention that the subsection may impose an obligation of reasonable accommodation: at [203], [217]-[219]. I accept this submission. I have set out above the relevant paragraphs of Purvis which make clear the effect of s 5(2). However I did not understand Mrs King's submission to involve the imposition of an obligation of reasonable accommodation.
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
130 Mr Lobascher gave the following evidence which I accept.
131 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. I have set out above the most relevant parts of the "Limited Special Assistance" page on Jetstar's website as at August 2008.
132 Mr Lobascher said that all of 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.
133 My examination of the PTS showed that the time permitted by it for assisting passengers requiring assistance, within the Turnaround Time for A320 flights of 30 minutes, was very limited.
134 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.
135 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.
136 Mr Lobascher also said that 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.
137 Across the airline, for the 2008/2009 financial year there were a total of 53,480 flights. In the same period there were 25,525 requests for wheelchair assistance, out of a total of 27,757 requests for special needs assistance. Per departure therefore there was an average of 0.519 passengers requiring assistance and 0.477 passengers requiring wheelchair assistance. 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.
138 Mr Lobascher also gave evidence about the delays concerning on-time performance recorded in a Jetstar electronic database. Mr Lobascher said that he referred almost continually in his work to this database as delays and cancellations formed a large basis of the complaints received at Jetstar. From that database, for the financial year 2009/10, Mr Lobascher worked out the number of flights that were delayed where one or more of the reasons was a passenger who required assistance with a wheelchair, the figure being 1,839.
139 Mr Lobascher said that all flight delays, however long or short they might be, were recorded. The electronic database was partially automated and partially manual. The manual components were the selection of a delay code, that is, the reason for the delay, and the entry in a free text field of comments. Up to three delay codes could be recorded for any delay and they were registered as C1, C2 and C3. Each delay code had next to it the amount of delay that was attributable to that code.
140 Mr Lobascher said there were some limitations to the data. Because it was a manual process, the data relied on the Jetstar staff members recording the delay and also recording a delay with the right code. Code 181 was used where there was a delay caused by less than three passengers requiring wheelchair assistance in a Turnaround Time (across two flights) and that code was also used for delays caused by passengers requiring medical clearance and other delays caused by pre-boarding passengers. The majority of delays using code 181 were because of delays associated with passengers requiring wheelchair assistance. Code 182 was used where there was a delay caused by the handling of more than three passengers requiring wheelchair assistance in a Turnaround Time (across two flights).
141 The database showed a departure any time after the scheduled departure time, even if it was a delay of one minute. It showed delays in departures and arrivals, the timing columns including scheduled arrival and scheduled departure and actual arrival and actual departure. However Mr Lobascher said he did not see how a passenger requiring assistance could delay arrival if there was no delay on departure.
142 In terms of the raw data, Mr Lobascher generally looked at the codes rather than going into the entries to ascertain whether they correlated with the codes. Mr Lobascher accepted that the data might include information that had nothing to do with wheelchairs. He was not responsible for putting the textual entries into the documents. The codes referred to specific assistance and the greatest majority of specific assistance Jetstar provided was with wheelchairs but, Mr Lobascher accepted, it was difficult to then delineate the data further.
143 Mr Lobascher did not know the number of delays caused by persons requiring different types of wheelchair assistance from the data that he had seen. For example, he did not know whether persons who could not walk up stairs caused more delay than those who could or whether persons who could transfer to their own seat caused more delays than those who could not. Mr Lobascher said there were many delays recorded in the document that affected on-time performance but he could not say that he knew the comments on the document were correct.
144 In my view the electronic database for the financial year 2009/10 does 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. Nevertheless, the database does 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. Although Mr Lobascher did not himself make the text entries under "Remarks" I see no reason to assume that the entries were not accurate, so far as they went. For example, Mr Lobascher accepted that the data also included information that had got nothing to do with wheelchairs but more generally there was a distinct element of subjectivity as to when one of the two wheelchair related codes should be used.
145 In addition, the electronic database does not assist in showing whether a high percentage of the 57,056 flights for financial year 2010 were delayed by reason of a passenger or passengers requiring wheelchair assistance. The figure was approximately 3% at most but of course this was in the context of the limit of two passengers requiring wheelchair assistance per flight and there is no basis for concluding that that limit was not effective to prevent a greater number of delays.
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.
147 I accept that Mr Lobascher's job did not involve considering or assessing from a financial or operational perspective having more than two wheelchair assisted persons on a flight. That was the purpose of the evidence of Mr Dal Pra and Mr Moore, to which I now turn.
148 Mr Dal Pra was the Chief Operating Officer for Jetstar. He gave evidence that 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. He had no role in drafting the practice as it existed at the commencement of Jetstar's business.
149 Mr Dal Pra said that Jetstar operated on an entirely different cost model to a full service airline like Qantas. Jetstar's business model was based on providing consistently lower fares to the leisure market and value based markets.
150 In September 2003 Mr Dal Pra was part of the project investigation team which led to the formation of Jetstar. He said that significant research was undertaken to get Jetstar's low-cost business model right. 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). Revenue drivers included stimulating markets through low fares and unbundling the product so that customers only pay for what they wanted.
151 Mr Dal Pra said that Jetstar provided a number of limited services, including streamlined airport services which included limited check-in, crew and airport groundstaff. He also referred to strict timeframes such as closing check-in to domestic flights at 30 minutes prior to departure, advising passengers to be at the boarding gate 30 minutes before departure and completing boarding at five minutes prior to departure with doors closed at four minutes to allow an on-time departure. Another limited service Mr Dal Pra referred to was "providing limited assistance to passengers with specific needs".
152 Mr Dal Pra's evidence was that Jetstar was able to provide point-to-point air travel on a very low cost because of an operational system based around short "turnaround times" between flights and high aircraft utilisation. Jetstar did not have the systems, staff or facilities to provide the same level of assistance to its passengers as provided by full service airlines.
153 Mr Dal Pra said that every Jetstar aircraft had an agreed minimum Turnaround Time. If Jetstar failed to meet the agreed Turnaround Times, this impacted directly on Jetstar's On Time Performance (OTP), that is, the performance against the published schedule for flights. Jetstar measured every flight and its adherence to the Turnaround Time. Jetstar had a target of 85% OTP for all flights. This was measured as the percentage of flights which arrived within 15 minutes of the scheduled arrival time and those figures were reported to the Commonwealth Department of Infrastructure and Transport.
154 Mr Dal Pra's evidence was that there were not any variants to the Precision Timing Schedule ("PTS") and the PTS remained the same for aircraft regardless of the operational differences such as whether there was an aerobridge available for boarding or not. Having many versions of the PTS would not be practical or reasonable. Jetstar used a single PTS for the whole network rather than customising it per airport to keep it simple for all staff as the more complexity, the more the opportunity for errors to be made by staff. This was particularly important for flight crew who may fly various sectors in one day at a number of airports. Flight crew could operate to any of the 18 domestic airports on any given day.
155 Mr Dal Pra explained that Jetstar applied a different approach in relation to A330 flights. He said that in August and September 2008 for A330 flights, Jetstar was able to accommodate up to 9 passengers requiring wheelchair assistance. There were a number of reasons for Jetstar's different approach for A330 flights. First, there was a much longer turnaround time, being a minimum of 70 minutes, so that there was more time to assist passengers, including passengers requiring wheelchair assistance. Second, because the A330 was generally used for international flights and only very rarely for domestic flights, the A330 was more likely to be boarded by aerobridge. Third, check-in closed one hour prior to departure so there was more time to transport wheelchairs and passengers requiring wheelchair assistance from the check-in area to the gate. Fourth, there were more cabin crew, Customer Services Officers and ground handlers to assist with passengers’ boarding and disembarkation. Fifth, A330 flights had higher aircraft utilisation than A320 flights because they generally flew two long haul sectors per day and there was therefore less time on the ground when the aircraft was not flying. Sixth, there were two aisles on A330 aircraft in comparison to one on an A320 aircraft which meant that more passengers requiring wheelchair assistance could be boarded or transferred to their seat at the same time. In addition, other passengers could be boarded more quickly with two aisles. Thus the limit in respect of wheelchair assisted passengers was aircraft type specific.
156 An A320 will have typically 177 to 180 passengers while an A330 will have up to 303 passengers. Mr Dal Pra said the key difference was that the A320 was a single aisle aircraft but the A330 was a widebodied dual aisle aircraft.
157 Mr Dal Pra said that due to the way low-cost airlines in particular operate with high utilisation, delay on one flight had a significant impact on the OTP of other flights on that day, that is, there was a "domino" effect because, for example, a delay on the 10 am flight from Sydney to Brisbane would impact on the subsequent flight at 12 noon from Brisbane to Melbourne and further subsequent flights across the day because of Jetstar's high utilisation of aircraft and airport assets, staff numbers and short Turnaround Times.
158 Mr Dal Pra said that a single delay could have a large impact on OTP. This was due first to boarding gate availability at the departure airport and at the arrival airport because the aircraft had arrived late and another aircraft was scheduled to be using the same gate. Second, it was also due to staff availability, because if one aircraft was delayed then two aircraft may be at the airport at the same time and require the same staff at the airport. Third, it was due to cancellations caused by flight curfews at the curfew airports of Adelaide, Gold Coast, Newcastle and Sydney. It was also due to airport congestion and to cancellations where delays caused the crew to risk exceeding their maximum allowable operating hours.
159 Mr Dal Pra said there was a financial impact of delays including additional labour and ground handling costs, the cost of additional fuel if Jetstar needed to speed up aircraft in flight to try to make up the delays and the cost of over nighting passengers and crew if Jetstar missed the curfew.
160 There was also a significant impact on passengers who may be inconvenienced by the "domino" effect of the delay on one flight across all flights for the day. A delay in OTP had a significant adverse impact on customer perception of the Jetstar brand. There was also a significant inconvenience to customers who had booked other flights or other transport and also on Jetstar customers' family members or friends. There was also significant impact on Jetstar's business and professional customers who might be late to meetings or other important events due to delays.
161 Customer inconvenience adversely impacted on Jetstar's brand and ultimately the profitability of the airline because a customer may associate the inconvenience with the brand and not choose to book a Jetstar flight in the future. Jetstar's market research showed that the actual arrival time compared to the scheduled arrival time was a high priority for customers and impacted customer retention and the reputation of the airline.
162 Flight scheduling was critical to OTP 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.
163 Mr Dal Pra said that 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 OTP, the resulting cancellations and the resulting negative customer service would not be tolerable.
164 If there was to be an increase in Customer Services Officers and ground staff, without reduction in staff because of reduced flights, Mr Dal Pra estimated that for the 2009/10 financial year one extra Customer Services Officer per departure would cost approximately $4.6 million across the Jetstar Australian domestic network and one extra ramp agent per departure would also cost approximately $4.6 million on the basis of a reasonable minimum average rostered hours per person per departure of two hours.
165 Mr Dal Pra gave evidence as to the consequences of a five minute increase to the Turnaround Time and as to the consequences of a ten minute increase to the Turnaround Time. He referred to calculations by Jetstar's scheduling team 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.
166 These calculations were prepared using two methods of analysis: (a) working through the Jetstar flight schedule and the different routes/flights taken by aircraft across the day and assessing the individual impact to each line of domestic flying and (b) mathematically testing the logic of (a) using average "block times", Turnaround Times and aircraft utilisation figures. The estimates using the former, operational, approach assumed maintaining the current schedule while the estimates using the latter, calculated, approach assumed overhauling the schedule to accommodate an additional passenger requiring wheelchair assistance on each A320 flight.
167 Turning to the underlying calculations, they were first done on the assumption that to accommodate an additional passenger requiring wheelchair assistance would add 10 minutes to the turnaround.
168 The estimates using the calculated approach were done by reference to turns per aircraft per day, utilisation per aircraft per day not including turn times, average turn time per sector and an additional turn time required for an additional passenger requiring wheelchair assistance of 10 minutes. A figure of approximately 20 sectors lost was reached per 50 aircraft per day. The corresponding figure per 35 aircraft per day was a loss of approximately 14 sectors.
169 That figure was then revisited assuming a five minute increase in turn time and I infer that this was done following Mr Lobascher's time and motion study. There were no further figures derived from the calculated approach but only from the operational approach. The reassessment referable to a five minute increase for one additional passenger requiring wheelchair assistance on embarkation resulted in a loss of sectors in the 20-30 range, albeit at the lower end of that range. The time required per turn was said to be contingent on the mobility of the passengers. In the case of a full quadriplegic for example, that passenger would require more than five minutes as a full chair lift and escort was required. The key driving factor of the analysis was said to be no allowance for any additional flights beyond midnight (outside the current schedule) due to crewing inefficiencies that develop, that is, any post-midnight sign off resulted in a loss of that crew for the next day.
170 This evidence was necessarily concerned with estimates. There was no proof that there would be three or more prospective passengers on each flight who would require wheelchair assistance but I am satisfied that removing the limit of two such passengers would be likely to have the consequences of which Mr Dal Pra gave evidence.
171 I accept 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.
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.
174 Mr Moore was the Group Chief Financial Officer of Jetstar. On the assumption that there was to be no limit to the number of passengers who required a wheelchair in boarding or disembarking any flight and that this would increase Jetstar's Turnaround Time for A320 flights, Mr Moore calculated the possible cost to the business.
175 He assumed that the Turnaround Time would be increased by no less than 5 minute blocks. He also assumed that 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.
176 On the assumptions I have referred to above, Mr Moore calculated the impact on profit as a percentage of domestic earnings before interest and tax for the financial year 2010. Mr Moore's analysis showed that a five minute increase in Turnaround Time would reduce Jetstar's domestic profitability "by greater than approximately 48%". A 10 minute increase in Turnaround Time would reduce Jetstar's domestic profitability "by greater than approximately 72%". These calculations were based on the 12 months to June 2010. Mr Moore also calculated the profit impact from the cancellation of 20 domestic flights per day flowing from an additional five minutes on every Turnaround Time and the profit impact from the cancellation of 30 domestic flights per day flowing from an additional 10 minutes on every turnaround time. In each case it was tens of millions of dollars, the latter figure being higher than the former. In each case this was excluding additional costs associated with additional assistance to any increased number of passengers requiring wheelchair assistance, such as staffing or equipment costs.
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.
Discrimination
Section 24(1)(a)
178 The s 24(1)(a) issue as pleaded was that under s 5 of the Act, Jetstar's conduct in informing Mrs King she could not travel on JQ 769 was discriminatory in that Mrs King was treated less favourably than a passenger who did not have a mobility disability that required the use of a wheelchair. This was also put as Mrs King being refused the service JQ 769 on the ground of her disability.
179 Mrs King submitted that the essential elements of direct discrimination were less favourable treatment, involving a comparison of her actual treatment with the treatment of a real or hypothetical passenger without her disability in the same circumstances, or involving a comparison of her treatment with a disability to the way she would have been treated if she did not have the disability. The other element, it was submitted, was causation.
180 It was then submitted that the task of comparing the treatment of Mrs King with the way in which Jetstar would treat a person without Mrs King's mobility disability was straightforward because it was clear that Jetstar would have carried Mrs King on flight JQ 769 if Mrs King had not required wheelchair assistance.
181 Jetstar submitted that at the time of Mrs King's booking, in mid August 2008, the limited special assistance was no longer a service available on JQ 769 for 23 September 2008. If two customers requiring wheelchair assistance were already booked on a particular flight then alternative arrangements would be offered. It was then submitted that one cannot be refused goods if the goods have already been sold. Section 24(1)(a) was premised on the services in issue being available to be provided.
182 Jetstar further submitted that it did not refuse to provide a service which by 12 August 2008 was no longer being offered for that flight. Mrs King was not refused limited special assistance on other flights where the service was still being offered. Jetstar did not cancel Mrs King's booking for JQ 769 and offered to find an alternative flight. Jetstar did not refuse to provide its services generally to Mrs King. Instead Jetstar offered Mrs King an alternative flight. There was therefore no refusal to provide a service.
183 Jetstar's submissions on this point turned on the identification of the wheelchair assistance as a separate service for the purposes of s 24 of the Act. I have already held that the service was flight JQ 769 from Adelaide to Brisbane on 23 September 2008.
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.
187 Mrs King also submitted that Jetstar imposed a requirement or condition on potential passengers, that requirement or condition being that the passenger not require wheelchair assistance in boarding and disembarking the aircraft. This formulation replaced the requirements or conditions pleaded in the statement of claim which were:
(a) that the passenger not use a wheelchair as a mobility aid; or
(b) that the passenger not require mobility assistance in boarding and disembarking the aircraft.
188 Mrs King relied on Clarke (above) which established, amongst other things, that the question of whether the alleged discriminator has imposed a requirement or condition on persons wishing to use the services is a question of fact: Clarke at [102] applying Waters.
189 Sackville and Stone JJ in Clarke also identified two further propositions to be derived from Waters, as follows:
[103] Second, the expression "requirement or condition" in s 6 of the DD Act should be construed broadly to include any form of qualification or prerequisite, although the actual requirement or condition should be formulated with some precision: Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 at 185, per Dawson J; at 195-196, per McHugh J; Waters v Public Transport Commission, at 393, per Dawson and Toohey JJ; at 406-407, per McHugh J. In this respect, the legislation should be given a generous interpretation and an alleged discriminator should not be permitted to evade the statutory prohibition or [sic] indirect discrimination by defining its services so as to incorporate the alleged requirement or condition: Waters v Public Transport Commission at 394, per Dawson and Toohey JJ.
[104] Third, an alleged discriminator may be found to insist on compliance with a "requirement or condition" within s 6 even though the requirement or condition is not explicitly imposed. It is sufficient for the requirement or condition to be implicit in the conduct which is said to constitute discrimination: Waters v Public Transport Commission at 360, per Mason CJ and Gaudron J; at 393, per Dawson and Toohey JJ; at 407, per McHugh J. Hence in Waters v Public Transport Commission itself, it was held to be open to the Victorian Equal Opportunity Board to find that the removal of conductors from Melbourne's trams amounted to a requirement or condition that disabled people could fully avail themselves of the services only if they could use the trams without the assistance of conductors: see at 361, per Mason CJ and Gaudron J.
190 As to the alleged requirement or condition that the passenger not use a wheelchair as a mobility aid, in my view there was no such requirement or condition because, as a matter of fact, it was Mrs King's need for wheelchair assistance which had the result that travel on JQ 769 on 23 September 2008 was refused.
191 As to the alleged requirement or condition that the passenger not require mobility assistance in boarding and disembarking the aircraft, I do not see any difference between the pleaded term and condition and the reformulation in Mrs King's outline of submissions: wheelchair assistance and mobility assistance were, on the facts of this case, the same.
192 Because I have found that Jetstar discriminated against Mrs King by refusing to provide to her the services on the basis that Jetstar treated Mrs King less favourably than in the same circumstances Jetstar would treat a person without the disability (direct discrimination) I have difficulty in analysing the same events as Jetstar requiring Mrs King to comply with a requirement or condition, that requirement or condition being that she not require mobility assistance in boarding and disembarking the aircraft (indirect discrimination).
193 This must underlie the references in the authorities to direct and indirect discrimination being treated as mutually exclusive: Waters at 392-393 and 400-402; Australian Medical Council v Wilson (1996) 68 FCR 46 ("Wilson") at 47, 55 and 74; Walker v Victoria (Department of Education and Early Childhood Development) (2011) 279 ALR 284 at [28] ("Walker"). No doubt also this is why Mrs King put her direct and indirect discrimination cases in the alternative.
194 If the service had not been refused then I accept that Waters indicates that an analysis in terms of a requirement or condition would have been available. That case was conducted on the basis that to the extent that discrimination was involved it was because the scratch tickets and driver-only trams involved the imposition of a requirement or condition with which a substantially higher proportion of unimpaired persons could or did comply then impaired persons. It was accepted in the High Court that the scratch tickets did involve the imposition of a requirement or condition. One remaining question was whether there was a requirement or condition involved in the removal of conductors.
195 Mason CJ and Gaudron J held at 361 that once the service provided by the Corporation was identified by the Board as public transport as affected by the changes directed, it was open to find that the removal of conductors from some trams involved the imposition of a condition that the complainants could fully avail themselves of the tram service only if they could use trams without the assistance of conductors, a condition of that nature falling within the ordinary conception of "requirement or condition" and thus within s 17(5)(a).
196 Dawson and Toohey JJ said at 393 it was open to characterise the removal of conductors from some trams as imposing on users of those trams a requirement or condition that they travel on them without the assistance of a conductor.
197 McHugh J at 407 said that in the context of providing goods or services, a person should be regarded as imposing a requirement or condition when that person intimated, expressly or inferentially, that some stipulation or set of circumstances must be obeyed or endured if those goods or services were to be acquired, used or enjoyed. As to the alleged requirement or condition concerning the removal of conductors from some of the Corporation's trams, McHugh J said that a person could use the services provided by the Corporation's trams only if that person was prepared, inter alia, to endure using the trams without the assistance of conductors. That being so, it was no misuse of ordinary language to hold that the Corporation imposed a requirement or condition on persons using its trams if the services provided were characterised as the provision of trams.
198 In case I am wrong in my finding that there was no requirement or condition I shall consider the balance of s 6 of the Act.
199 I reject the submission put by Jetstar that it was necessary to have direct evidence that a requirement or condition was imposed on Mrs King and, in particular, that there should have been cross examination of Jetstar's witnesses about whether any requirement of the kind alleged by Mrs King was imposed on her. It follows from Waters that such a requirement or condition may be implicit.
200 As to paragraph 6(a) of the Act, which refers to a requirement or condition with which a substantially higher proportion of persons without the disability comply or are able to comply, Mrs King submitted that it was a matter of common knowledge of which the Court could take judicial notice that a substantially higher number of persons without Mrs King's mobility disability did not require wheelchair assistance in boarding and disembarking an aircraft. Mrs King submitted that she was not privy to Jetstar's bookings on JQ 769 and the number of seats available as at 12 August 2008 to people who did not require wheelchair assistance. However, it was submitted, the issue was not number, but proportion. It was not difficult to consider that 100% of a base group of potential passengers for the flight who did not require wheelchair assistance were able to comply with the condition and that this was a higher proportion than the number of people with Mrs King's disability of not being able to travel more than a few metres without a wheelchair who were able to comply with a condition that they not require wheelchair assistance.
201 Jetstar submitted that Mrs King was required to adduce evidence of the relevant base groups or pools of customers who could comply with the requirement or condition. The identification of the proper base group was critical to Mrs King's claim. It was not a matter which could be determined by the Court without evidence. Jetstar submitted it was for Mrs King to adduce evidence of: (a) the number of customers with a mobility disability; (b) the number of customers without a mobility disability; (c) the number of customers with a mobility disability who could comply with the requirement; and (d) the number of customers without a mobility disability who could or did comply. Jetstar did not accept that the Court should or could take judicial notice that this element had been satisfied. Jetstar referred to Walker (above).
202 Mrs King responded to this criticism by submitting first that it was a matter of inherent logic, on the basis that the application of the wheelchair practice could only apply to those who required special assistance. Mrs King also submitted that because an A320 will typically have around 177 passengers on the flight and Jetstar would provide wheelchair assistance to only two, it followed that the other 175 passengers were able to fly on the flight and able to comply with a requirement that they not require wheelchair assistance.
203 Jetstar's response was that these matters were based on assumptions none of which was supported by any evidence and there was no cross examination of Jetstar's witnesses on this point. Mrs King's submissions did not cure her failure to prove this element of s 6(a).
204 It was common ground that the total number of passengers on JQ 769 was the denominator, the dispute was as to the numerator.
205 Although I understand the force of Jetstar's submissions as to the lack of evidence of the relevant base groups, which in many cases would be fatal, in the present case I infer that a substantially higher proportion of persons on JQ 769 without the disability complied or were able to comply with the requirement or condition that they not require mobility assistance in boarding and disembarking the aircraft even though there was no direct evidence of the number of passengers on that particular flight.
206 As to paragraph 6(c) of the Act, which refers to a requirement or condition with which the aggrieved person does not or is not able to comply, Jetstar conceded that if Mrs King's various formulations of the requirement or condition could be accepted, Mrs King required assistance to travel and therefore could not comply.
207 In my view, on the assumption I have made that there was, as a matter of fact, a requirement or condition that Mrs King not require mobility assistance in boarding and disembarking the aircraft, the real dispute between the parties on the indirect discrimination limb of the case centred on the question of whether the requirement or condition was not reasonable having regard to the circumstances of the case: s 6(b) of the Act.
208 Mrs King accepted that she had the onus of establishing that the requirement or condition was not reasonable having regard to the circumstances of the case: see Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78 at 111D ("Commonwealth Bank") and the authorities there cited. She submitted that the weighing process led to the conclusion that the requirement that a passenger not require wheelchair assistance when Jetstar already held two wheelchair bookings was unreasonable on consideration of the following:
(i) passengers without disabilities, who have an impact on the operations of Jetstar, for example families with children, are not subject to a quota;
(ii) people with mobility disabilities and their families would benefit from having access to airline passenger services not subject to a quota, because they would have the same degree of choice as people without mobility disabilities;
(iii) the detriment suffered by Mrs King of having restrictions on her access to the same choice of airline and flight (including low-cost services) as other passengers who do not have disabilities;
(iv) the detriment suffered by people with mobility disabilities and their families of having their access to airline passenger services subject to a limit of two wheelchair passengers per flight.
209 Mrs King submitted that Jetstar had used a method of retrospective analysis to indicate the reasonableness of the wheelchair practice in 2008. Jetstar's method of illustrating reasonableness should be given minimal weight to discount what was otherwise an opaque arbitrary limit, with no demonstrated effect on turnaround times or on time performance. Even if the evidence demonstrated now that the limit was reasonable it did not establish that the limit was reasonable and justified at the time it was created or in 2008.
210 Jetstar submitted that the assessment was directed to whether the requirement or condition that Mrs King not require mobility assistance in boarding and disembarking the aircraft was not reasonable and not to whether the alleged discriminator could have made a better decision or a more informed decision.
211 Jetstar submitted that the activity in issue was the operation of a low fare airline and the specific activity of boarding and disembarking customers on and off an aircraft. The evidence showed that the aircraft was an A320 which usually carried up to 177 passengers; that in 2008/2009 Jetstar operated 53,480 flights and received 27,757 requests for special assistance; in 2008/2009 there were 25,525 requests for wheelchair assistance, being 93% of all assistance; and on average this was 0.477 per flight.
212 Thus it was submitted that there was no evidence to support a finding that there was a demand for wheelchair assistance for more than two passengers on a flight on a regular or continual basis. There was no evidence that customers requiring wheelchair assistance were being regularly or consistently unable to access that service. There was thus no evidence that the demand outstripped the need or the requests being made on a regular basis. Mrs King's experience showed that there was only one out of 18 or 19 occasions when she could not fly on her preferred flight. There was no evidence which supported the need for unlimited numbers on every flight. There was no evidence that more than two was regularly required.
213 Jetstar also submitted that the reasons for the limit were clear. As a low-cost airline, Jetstar operated on a schedule which provided for a 30 minute turnaround time for A320 flights. This meant that there were potentially four customers per turnaround time being two disembarking the aircraft and two boarding the aircraft. Mrs King's evidence showed that the time taken for her to board or disembark aircraft was significantly longer than a passenger who did not need the same level of assistance.
214 Jetstar submitted that the issue was not whether the turnaround time should be altered or the schedule changed but rather whether the requirement or condition was appropriate and adapted to the activity of boarding and disembarking customers within the set schedule and turnaround times. There was no evidence which put in issue that boarding and disembarking a customer requiring wheelchair assistance took longer than a customer who did not require that assistance. There was no evidence to suggest that the type of assistance offered to customers using wheelchairs was other than necessary and appropriate.
215 Jetstar submitted that the performance of the activity of boarding or disembarking passengers requiring assistance could not be done within the set turnaround times without imposing the requirement or condition.
216 Jetstar also submitted that it was relevant to compare the position of the A320 aircraft with the A330 aircraft in respect of which different considerations applied and where the requirement or condition was not imposed. The matters set out in Mr Dal Pra's affidavit, which were not challenged, explained why it was possible to operate an A330 aircraft with a different time limit to the A320 aircraft and without the requirement or condition.
217 Jetstar submitted that Mrs King had advanced no evidence to support her allegation that the impugned requirement was not reasonable in the circumstances of the case. Jetstar submitted that reasonableness was only concerned with the reasonableness of the impugned requirement or condition with which the aggrieved person could not comply. It was concerned with whether the requirement was reasonable at a particular point in time in the past.
218 In Clarke at [115] it was said that the relevant principles were well settled and included that the test of reasonableness was an objective one which required the Court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the condition or requirement, on the other: Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251 at 263, per Bowen CJ and Gummow J; Waters v Public Transport Commission at 395-396, per Dawson and Toohey JJ; at 383, per Deane J. Since the test was objective, the subjective preferences of the aggrieved person were not determinative, but may be relevant in assessing whether the requirement or condition was unreasonable: Commonwealth v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74 at 82-83, per Lockhart J. The Court must weigh all relevant factors.
219 Further, the test of reasonableness was less demanding than one of necessity, but more demanding than a test of convenience: Styles at 263. It followed that the question was not whether the decision to impose the requirement or condition was correct, but whether it had been shown not to be objectively reasonable having regard to the circumstances of the case: Australian Medical Council v Wilson (1996) 68 FCR 46 at 61-62, per Heerey J; Commonwealth Bank at 112-113, per Sackville J.
220 The criterion of reasonableness turns upon the identification of the requirement "to comply with a requirement or condition": it is the requirement which is subject to the test of reasonableness: State of New South Wales v Amery (2006) 230 CLR 174 at [15].
221 In my view, for the reasons which follow, Mrs King has failed to show that Jetstar required her to comply with a requirement or condition, being that she not require mobility assistance in boarding and disembarking the aircraft, which was not reasonable having regard to the circumstances of the case.
222 I take into account that in relation to the flight in question Mrs King suffered some detriment but I also take into account that for approximately 18 out of the 19 flights she took with Jetstar the requirement or condition did not impose a detriment. It was not shown that this result was driven by any requirement on Mrs King to make a booking many months in advance of the proposed flight. I take into account that the average demand for wheelchair assistance by passengers is below 0.5 per flight. There was no evidence of unfulfilled demand by passengers or prospective passengers for wheelchair assistance. There was no evidence of detriment to any wider number of people.
223 I also take into account that Jetstar is a low-cost airline. This has the consequence that not as many services are available as a full cost airline. It is relevant on this aspect of the case, in my opinion, that the wheelchair assistance services are of a substantial kind and duration. I also take into account that where Jetstar required Mrs King to comply with the requirement or condition, alternative arrangements, for example on a different Jetstar flight, were available. That is why I have said that Mrs King suffered some detriment in being unable to travel on flight JQ 769.
224 I accept Jetstar's submission that the reasons for the limit were clear: Jetstar operated on a schedule which provided for a 30 minute turnaround time for A320 flights. I accept that given the 30 minute turnaround time and the time needed to provide wheelchair assistance, a limit of two passengers requiring wheelchair assistance embarking and two such passengers disembarking was not shown to be not reasonable. I am not satisfied that boarding or disembarking passengers requiring wheelchair assistance could be done within the set turnaround times without imposing the requirement or condition.
225 Bearing in mind that Mrs King bore the onus on this issue I note that there was no evidence which put in issue that boarding and disembarking a passenger requiring wheelchair assistance took longer than a passenger who did not require that assistance. There was no evidence to suggest that the type of assistance offered to passengers using wheelchairs was other than necessary and appropriate.
226 I have noted Mrs King's submission that passengers without disabilities, who have an impact on the operations of Jetstar, for example families with children, are not subject to a quota but there is no detailed evidence about this matter and I do not give it any weight.
227 I have also noted Mrs King's submission that people with mobility disabilities and their families would benefit from having access to airline passenger services not subject to a quota, because they would have the same degree of choice as people without mobility disabilities. But that does not seem to me to go directly to whether the requirement or condition was not reasonable having regard to the circumstances of the case.
228 Lastly, I do not assume, as was implicit in Mrs King's submissions on this part of the case, that the requirement or condition was not reasonable at the time Jetstar adopted the practice of having a maximum number of two passengers requiring wheelchair assistance on any A320 flight. It was for Mrs King to establish, on the assumption I have made that there was a requirement or condition, that in August or September 2008 the requirement or condition was not reasonable having regard to the circumstances of the case. Contrary to Mrs King's submission, the evidence did not establish that the "arbitrary limit of two wheelchairs, once chosen, becomes part of the operational structure which is then used to create and modify further practices and procedures".
Auxiliary aid discrimination
229 The discrimination case was also put by reference to auxiliary aid discrimination. It was pleaded that Jetstar's conduct in informing Mrs King that she could not travel on JQ 769 was discriminatory in that Mrs King was treated less favourably because she was accompanied by or possessed a wheelchair. In light of my earlier conclusion as to direct discrimination, I shall set out my conclusions on this part of Mrs King's case briefly.
230 The question posed by s 7 is whether Jetstar treated Mrs King less favourably because of the fact that she was accompanied by or possessed a wheelchair that she used or because of any matter related to that fact.
231 In my view Jetstar did not discriminate against Mrs King, being a person with a disability, because of the fact that she was accompanied by or possessed a wheelchair that she used. The reason for the discrimination was that she needed assistance rather than the fact that she had a wheelchair. Notwithstanding confusion as to the facts in early communications between the parties, there was no relevant limit on the number of wheelchairs on the flight. Such a limit may have engaged s 7 of the Act.
232 Further, in relation to the statutory expression "because of any matter related to" the fact that Mrs King was accompanied by or possessed a wheelchair, in my view it would be straining the statutory language to say that the assistance Mrs King needed was a matter related to the fact of accompaniment by or possession of a wheelchair.
233 Although reliance on s 24(1)(b) was the subject of the contested application to amend the statement of claim, there was relatively little attention directed to that provision in submissions.
234 In the statement of claim as amended it was pleaded that in breach of s 24 Jetstar discriminated against Mrs King in imposing as a term or condition on which Mrs King would be permitted to travel on flight JQ 769 that she not use a wheelchair or that she not require wheelchair assistance in boarding and disembarking the aircraft.
235 Jetstar submitted that Mrs King had not adduced any evidence of the terms and conditions on which the services were provided. Mrs King had not adduced evidence that the alleged terms and conditions pleaded were terms and conditions of any contract she had with Jetstar in August 2008. If the services were simply travel by air, then, Jetstar submitted, the only terms and conditions of the service were the standard written terms and conditions of carriage.
236 Jetstar also submitted that s 24(1) of the Act was concerned only with discrimination in the provision of services which the alleged discriminator provided generally and had no application to complaints about an alleged failure to provide specific services which by their nature were only used by specific classes of persons.
237 I was not taken to any specific authority for the proposition that s 24(1)(b) was limited to contractual terms. Indeed, as I have already set out, the basis of the amendment was that the pleading did not involve contractual terms and conditions. But to so limit the scope of that expression would be inconsistent with the judgment of Gummow, Hayne and Crennan JJ in Amery at [66]-[68] where their Honours said:
"Terms or conditions of employment"
[66] It is convenient to commence consideration of the relationship between ss 24(1)(b) and 25 of the AD Act [Anti-Discrimination Act 1977 (NSW)] by focusing upon s 25(2)(a) . That provision prohibits discrimination by an employer against an employee on the ground of sex "in the terms or conditions of employment" which the employer affords the employee. Accordingly, it is unlawful for an employer, within the terms or conditions of employment afforded an employee, to require of that employee compliance with a requirement or condition of the nature identified in s 24(1)(b). It may be thought that the words "terms or conditions of employment", as they appear in s 25(2)(a), set some outer limit upon the range of stipulations by employers which may constitute, for the purposes of that provision, when read with s 24(1)(b) , a "requirement or condition".
[67] During oral argument, counsel for the respondents directed the attention of the Court to the decision upon the AD Act of Lee J in Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47. His Honour there said that the expression "terms or conditions of employment which he affords him", which then appeared in s 25(2)(a) of the AD Act, was at 55:
"not restricted to the matter of the terms of contract of employment, but being designed to encompass as well, all those demands and requirements, and benefits and concessions in the actual employment which the employee must comply with or can accept as the case may be."
[68] The concept of indirect discrimination posited by provisions such as s 24(1)(b) was said in Styles 34 to be "concerned not with form and intention, but with the impact or outcome of certain practices". Accordingly the earlier statement by Lee J may be accepted as correct. However, it is a matter of some importance that, in construing the text of s 25(2)(a) , Lee J should have used the words "actual employment". This is because the term "employment" may, in certain situations, denote more than the mere engagement by one person of another in what is described as an employer-employee relationship.
238 I am not persuaded that in the circumstances of this case specific evidence needed to be adduced as to the terms and conditions on which the services were provided.
239 However I reject the submission that Jetstar imposed as a term or condition on which Mrs King would be permitted to travel on flight JQ 769 that she not use a wheelchair. On the facts as I have found them, that issue did not arise.
240 I also reject the submission that Jetstar imposed as a term or condition on which Mrs King would be permitted to travel on flight JQ 769 that she not require wheelchair assistance in boarding and disembarking the aircraft. As I have found, Mrs King's need for assistance constituted the basis for refusal to provide the travel service with which she wished to be provided rather than a term or condition on which the service would be provided.
241 The claim based on s 24(1)(b) of the Act fails.
Unjustifiable hardship
242 I turn to consider the question of unjustifiable hardship. I accept that 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: see generally Cooper v Human Rights and Equal Opportunity Commission (1999) 93 FCR 481 at 491.
243 I note at the outset 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.
244 It was common ground that the respondent Jetstar had the onus of proof on this question. It sought to discharge that onus by reference to its particular operating circumstances for an A320 aircraft.
245 It will also be recalled that s 11 required that all relevant circumstances of the particular case are to be taken into account including, in this case, 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. There was no action plan given to the Commission under s 64.
246 In Hills Grammar School v Human Rights and Equal Opportunity Commission (2000) 100 FCR 306 at [48], a judicial review case, Tamberlin J said the question had been correctly posed by the Commissioner as being whether any hardship was of such a nature or degree in the circumstances of the case as to be unjustifiable. This required a weighing of relevant factors which he was bound to take into account. Moreover in making these remarks the Commissioner was applying the approach taken by Sir Ronald Wilson in Scott (above). In that case Sir Ronald said, at [62]-[63]:
All relevant circumstances are to be taken into account, including the nature of the benefit or detriment, the effect of the disability, and the financial circumstances of and cost to the respondent in eliminating the discrimination.
In my opinion, the content of the term "unjustifiable hardship" will depend upon the circumstances of each case.
247 Mrs King gave evidence of the difficulty caused to her by the application of the practice. In the circumstances of this case it caused her to change to another airline at a cost of $40 more, so she could meet her connecting flight home.
248 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.
249 Jetstar submitted that unjustifiable hardship operated on the premise that the service in issue should have been provided. It was therefore proper to consider the impact on Jetstar of having to provide wheelchair assistance to an unlimited number of passengers rather than to a maximum of two passengers per flight. It was also necessary to consider the whole of Jetstar's operations at the relevant time in August and September 2008.
250 Jetstar submitted that there was no evidence to suggest that in August and September 2008 people with a mobility disability, or their families, would have benefited in any particular way or any material way if Jetstar had provided wheelchair assistance to an unlimited number of passengers. Mrs King had not adduced any evidence of what the nature of any benefits might have been at that time. Further there was no evidence that any person, apart from Mrs King, was adversely affected by the limit of two passengers per flight requiring wheelchair assistance in August and September 2008.
251 Jetstar submitted that the evidence showed that assistance to an unlimited number of passengers requiring wheelchair assistance on any flight in Australia could not have been provided within the existing turnaround times and schedule. If provision had to be made for the possibility that on every flight more than two passengers would require assistance for boarding and disembarking and associated services of the kind described by Mrs King, then the schedules would have to have been revised and longer turnaround times provided. The evidence showed that this would have resulted in Jetstar operating fewer flights and this was a detriment to passengers generally because there would have been less choice for flights in the Australian domestic air travel market.
252 Jetstar relied on the evidence of Mr Moore that if the changes to the schedule resulted in fewer flights then there would have been an impact on profit. It was then submitted that Jetstar would have to either accept the loss in profit or seek to recover it by an increase in the cost of its airfares as well as the associated decrease in the choice of routes, destinations and frequency of flights or maintain those numbers with an associated increase in operating costs. Jetstar submitted that this was a relevant detriment to be taken into account.
253 Jetstar also submitted that whether or not the rationale for the practice or the limit of two passengers requiring wheelchair assistance was arbitrary or the result of study was not a relevant consideration for unjustifiable hardship: the rationale for the policy was not a factor which determined whether there was unjustifiable hardship. Jetstar submitted that actual demand and use of wheelchair assistance was a more reliable indicator than whether there was some theoretical study when the airline was starting up.
254 Jetstar also submitted that this was not a case where the unjustifiable hardship turned on a one-off capital expense – such as the cost of installing a ramp or providing particular equipment which could be assumed to resolve the issue or ensure that the person with a disability could access the service in issue. Thus it was not a question merely of spending more money but the financial circumstances of the airline if it had to use a different business model and in effect alter the nature of its services. It was also relevant that the turnaround times were set by schedules which were made well in advance by the scheduling department. The schedules were central to the operation of the airline. The schedules determined a wide range of operational matters. The PTS made it plain there was no capacity to add minutes into the schedule, let alone the minutes required to board and disembark more than four passengers requiring assistance in a turnaround time.
255 In my view 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. However I take into account here that 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 18 or 19.
256 It is also relevant in my view that 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. The point is that, 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.
257 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.
258 As to the effect of the disability (s 11(b)), little attention was paid to this in submissions but I take into account that the effect of the disability of Mrs King and other persons with a disability seeking to board or disembark an A320 aircraft operated by Jetstar would be that they would have required wheelchair assistance to board or disembark from the aircraft. The time taken to have provided that assistance in the context of the 30 minute turnaround time for an A320 was substantial. In turn this leads to the factors relevant to Jetstar's provision of that assistance in circumstances where the limit of two passengers boarding and two passengers disembarking an A320 aircraft no longer applied.
259 Also relevant in the present circumstances is the estimated impact on Jetstar's operations. I repeat here what I have said in [172] above. I refer here to Jetstar's low cost model, the importance to that model of short turnaround times and the estimated effect on those turnaround times of permitting an unlimited number of passengers requiring wheelchair assistance on each A320 flight. I also take into account the consequential estimated effects in a revised schedule of an estimated increased turnaround time of five minutes on the number of flights each day in light of operational constraints. I have taken into account the lowest of the numbers I have referred to above, that is, a loss of approximately 14 sectors per day.
260 It is also relevant 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.
261 As to the financial circumstances and the estimated amount of expenditure required to be made by Jetstar (s 11(c)), I take into account Jetstar's total revenue and that the profit impact expressed as a percentage of Jetstar's total revenue for the financial year 2010 was a low single figure and that expressed as a percentage figure for total domestic revenue for the financial year 2010 the number was a higher but still a single figure.
262 I also take into account that on the estimates I have accepted the annual profit impact flowing from an additional five or ten minutes on every scheduled Turnaround Time would have been adverse and substantial. In each case this was excluding additional costs associated with additional assistance to any increased number of passengers requiring wheelchair assistance, such as staffing or equipment costs.
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.
Jetstar's interlocutory application in relation to the costs cap
265 On 12 August 2010 Moore J made the following orders:
1. Pursuant to Order 62A rule 1 of the Federal Court Rules, the parties’ recoverable costs in these proceeding be capped at $20,000 on the following conditions:
(a) the Applicant withdraws her claims in paragraphs 11 and 13 of the Statement of Claim filed on 24 November 2009 in respect of sections 23 and 32 of the Disability Discrimination Act 1992 (Cth);
(b) the Applicant will defer prosecuting her case for the relief sought in Order (iii) of the Application filed on 16 October 2009 pending the Court’s finding on liability and any orders with respect to sections 5, 6, 7 and 24 of the Disability Discrimination Act;
(c) this Order does not apply to any further hearing and associated preparation in relation to the Applicant pursuing a claim for the relief with respect to Order (iii) of the Application filed on 16 October 2009;
(d) after the Applicant's evidence has been filed and served, the parties have leave to apply to the Court for the purpose of determining whether the Applicant's claims in paragraphs 5, 6 and 7 of the Claim in respect of section 6 of the Act should be covered by this Order;
(e) after the Applicant's evidence has been filed and served, the Respondent may apply to increase the quantum of Order 1 of these orders from $20,000 to $30,000; and
(g) the Order takes effect from 16 October 2009.
266 Order (iii) of the Application filed on 16 October 2009, referred to in paragraphs 1(b) and 1(c) above of the orders made by Moore J, was a claim for an order directing Jetstar to cease enforcing its policy of limiting the number of passengers who require wheelchair assistance to two passengers per flight, and remove the said criterion from the website maintained by Jetstar.
267 At that time Order 62A of the Federal Court Rules provided, relevantly:
1 Power to order maximum costs
The Court may, by order made at a directions hearing, specify the maximum costs that may be recovered on a party and party basis.
2 Excluded costs
A maximum amount specified in an order under rule 1 shall not include an amount that a party is ordered to pay because the party:
(a) has failed to comply with an order or with any of these Rules; or
(b) has sought leave to amend its pleadings or particulars; or
(c) has sought an extension of time for complying with an order or with any of these Rules; or
(d) has otherwise caused another party to incur costs that were not necessary for the economic and efficient:
(i) progress of the proceedings to trial; or
(ii) hearing of the action.
. . .
4 Variation of order
If, in the Court’s opinion, there are special reasons, and it is in the interests of justice to do so, the Court may vary the specification of maximum recoverable costs ordered under rule 1.
268 Jetstar applied for an increase to the costs cap to $30,000 "because the discovery application made by the Applicant on 30 September 2011… has caused Jetstar to incur additional legal costs."
269 The affidavit in support of the interlocutory application identified the additional legal costs as being "because of the lateness of the application, the urgency that responding to it then involved, and the unnecessary scope of the requested documents meant that the discovery was not able to be delegated and supervised in the manner in which we would ordinarily undertake such a task." Instead of a junior lawyer doing much of the work a senior associate had to principally deal with the matter with only limited assistance able to be afforded by more junior lawyers.
270 The same affidavit contained a calculation or estimate of Jetstar's costs arising from the discovery application as approximately $24,500 exclusive of GST. No further detail was given. In particular this figure did not identify the additional costs incurred by virtue of a senior associate rather than a junior lawyer doing most of the work.
271 Mrs King submitted that the conditions upon which leave was granted to Jetstar to apply for the costs cap to be increased were limited and did not include the current circumstances. She also submitted that order 1(b) reflected an intention that any application for a variation of the costs cap order should have occurred after Mrs King's evidence had been filed but prior to any further costs being incurred.
272 Jetstar submitted that the costs capping order made by the Court on 12 August 2010 was not intended to apply to the costs incurred in relation to excessive requests for discovery such as Mrs King's interlocutory application for discovery. Jetstar also submitted that its application had been made promptly.
273 In the view I take, I do not need to resolve the question of the scope of the order although, given its limited nature, Jetstar's application would in my view fall within O 62A r 2(d). I also do not need to resolve the question of whether Jetstar's application should have been brought earlier. My reasons are as follows.
274 In relation to Mrs King's discovery application, by order dated 28 October 2011 I reserved the costs of the application.
275 I have had regard to the late date (26 September 2011) of the request for 27 categories of documents, the course of the hearing of the discovery application on 21 October 2011 and to the orders for discovery which I then made, which were more limited than the 27 categories originally contended for by Mrs King. I have also had regard to the earlier unresolved references to requests for discovery on behalf of Mrs King.
276 I have noted Jetstar's submission, which I accept as approximately accurate, that I rejected five out of the 27 categories, Mrs King did not press a further eight, there were no documents in relation to two of the categories and for the remainder I made orders but in narrower terms than the documents sought. I also note that the total number of documents produced was less than two lever arch folders, although wider searches would have had to have been made.
277 In my opinion, responsibility for the lateness of the application for discovery was not a matter which, in terms of costs, should be attributed to Mrs King. This was the matter relied on by Jetstar in its application. Further, in my view success in terms of the categories of discovery, considered as a question of substance rather than merely numbers, was even as between the parties.
278 Taking these matters into account, I order that each party bear her or its own costs of and relating to the discovery application.
279 It follows that given the limited basis upon which Jetstar sought to increase the costs cap I refuse that interlocutory application. I make no order for the costs of that application.
Conclusion
280 The substantive application should be dismissed with costs. I also order that Jetstar's interlocutory application be dismissed with no order as to costs.
I certify that the preceding two hundred and eighty (280) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson. |
Associate:
