Killeen v Combined Communications Network Pty Ltd [2011] FCA 27 (31 January 2011)

Last Updated: 31 January 2011

FEDERAL COURT OF AUSTRALIA

Killeen v Combined Communications Network Pty Ltd [2011] FCA 27

Citation:	Killeen v Combined Communications Network Pty Ltd [2011] FCA 27
Parties:	GREGORY KILLEEN v COMBINED COMMUNICATIONS NETWORK PTY LTD (ACN 080 990 978), AUSTAXI GROUP PTY LTD (ACN 116 209 057) and DIRECTOR-GENERAL OF THE DEPARTMENT OF TRANSPORT AND INFRASTRUCTURE
File number:	NSD 496 of 2010
Judge:	EDMONDS J
Date of judgment:	31 January 2011
Catchwords:	DISABILITY DISCRIMINATION – jurisdiction conferred by s 46PO of Australian Human Rights Commission Act 1986 (Cth) in consequence of termination of complaint alleging unlawful discrimination pursuant to s 46PH(1)(i) – claims for relief against alleged direct and indirect contravention of ss 9.1 and 9.3 of the Disability Standards for Accessible Public Transport 2002 (Cth) – by consent separate question ordered to be determined prior to trial as to proper construction of ss 1.11, 9.1 and 9.3 of the Disability Standards – whether appropriate to answer question where only limited facts agreed or found but where determination of answer may lead to bringing proceeding to a swift conclusion. Held: Question to be determined; and answered ‘no’.
Legislation:	Australian Human Rights Commission Act 1986 (Cth) ss 46PH(1)(i), 46PH(2), 46PO Disability Discrimination Act 1992 (Cth) Acts Interpretation Act 1901 (Cth) Federal Court Rules O 29 r 2 Disability Standards for Accessible Public Transport 2002 (Cth) ss 1.11, 9.1, 9.3

Cases cited:	Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334 cited CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCATrans 242; (1997) 187 CLR 384 cited Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405 cited Cooper Brookes (Wollongong) Pty Limited v Federal Commissioner for Taxation [1981] HCA 26; (1981) 147 CLR 297 cited IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 cited Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 cited White v Designated Manager of IP Australia (No 2) [2008] FCA 816; (2008) 171 FCR 15 cited
Date of hearing:	1 December 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	66
Counsel for the Applicant:	Mr A Robertson SC with Ms K Eastman
Solicitor for the Applicant:	Public Interest Advocacy Centre

Solicitor for the First Respondent:

Douglas Lawman

Counsel for the Third Respondent:	Ms NL Sharp
Solicitor for the Third Respondent:	TressCox Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 496 of 2010

BETWEEN:	GREGORY KILLEEN Applicant
AND:	COMBINED COMMUNICATIONS NETWORK PTY LTD (ACN 080 990 978) First Respondent AUSTAXI GROUP PTY LTD (ACN 116 209 057) Second Respondent DIRECTOR-GENERAL OF THE DEPARTMENT OF TRANSPORT AND INFRASTRUCTURE Third Respondent

JUDGE:	EDMONDS J
DATE OF ORDER:	31 JANUARY 2011
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The proceedings be listed for further directions on 28 February 2011 at 9:30 a.m.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 496 of 2010

BETWEEN:	GREGORY KILLEEN Applicant
AND:	COMBINED COMMUNICATIONS NETWORK PTY LTD (ACN 080 990 978) First Respondent AUSTAXI GROUP PTY LTD (ACN 116 209 057) Second Respondent DIRECTOR-GENERAL OF THE DEPARTMENT OF TRANSPORT AND INFRASTRUCTURE Third Respondent

JUDGE:	EDMONDS J
DATE:	31 JANUARY 2011
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. This application invokes the jurisdiction of the Court under s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (‘the AHRCA’) in consequence of the termination of a complaint by the applicant alleging unlawful discrimination by the first and second respondents and causing, instructing, inducing, aiding or permitting an act that is unlawful by the third respondent under the Disability Discrimination Act 1992 (Cth) (‘the DDA’). The complaint was terminated because the President of the Australian Human Rights Commission (‘the Commission’) was satisfied that there is no reasonable prospect of the matter being settled by conciliation (s 46PH(1)(i) of the AHRCA). In accordance with s 46PH(2) of the AHRCA, the President notified the applicant in writing, dated 11 March 2010, of that decision and of the reasons for that decision.
2. The applicant has quadriplegia and is totally reliant on an electric wheelchair for mobility. He uses an electric wheelchair which at all relevant times has measured 1250 mm in length, 700 mm in width and 1350 mm in height when occupied by the applicant. The applicant relies on wheelchair accessible taxis (‘WATs’) as his main form of transport.
3. By his application, the applicant claims, inter alia:

(1) A declaration that the first and second respondents contravened ss 9.1 and 9.3 of the Disability Standards for Accessible Public Transport 2002 (Cth) (‘Disability Standards’).

(2) A declaration that the third respondent caused, instructed, aided or permitted the first and second respondents to contravene ss 9.1 and 9.3 of the Disability Standards.

(3) An order directing the first and second respondents to modify vehicles to be used as wheelchair accessible taxis purchased from 28 November 2008 to comply with the requirements of ss 1.11, 9.1 and 9.3 of the Disability Standards.

(4) An order directing the third respondent to publish a Wheelchair Accessible Taxi Measurement Protocol that conforms with ss 1.11, 9.1 and 9.3 of the Disability Standards.

(5) An order directing the third respondent not to issue licences under the Passenger Transport Act 1900 (NSW) to wheelchair accessible taxis that do not conform with ss 1.11, 9.1 and 9.3 of the Disability Standards.

SEPARATE QUESTION

4. On 8 October 2010, by consent the Court ordered pursuant to O 29 r 2 of the Federal Court Rules that the following question be heard and determined separately prior to trial:

‘On their proper construction, are sections 1.11, 9.1 and 9.3 of the Disability Standards for Accessible Public Transport 2002 (Cth), in their application to accessible taxis, satisfied by a three dimensional space for a single wheelchair which space:

1. is 800 mm by 1300 mm at any point in a horizontal plane; and

2. has a height of 1410 mm at any point above that horizontal plane?’

DISABILITY STANDARDS

5. The Disability Standards were formulated by the Minister (Commonwealth Attorney-General) pursuant to s 31(1) of the DDA and commenced on 23 October 2002. They establish minimum accessibility requirements to be met by operators of public transport conveyances and providers of infrastructure and premises. They set out requirements in relation to issues such as access paths, manoeuvring areas, ramps and boarding devices, allocated spaces, handrails and doorways. Section 32 of the DDA makes it unlawful for a person to contravene a disability standard.
6. Section 1.2 of the Disability Standards provides that ‘[t]he [DDA] seeks to eliminate discrimination, “as far as possible”, against people with disabilities’ and ‘[t]he purpose of these Standards is to enable public transport operators and providers to remove discrimination from public transport services’.
7. Section 1.4(2) provides that ‘[t]hese Standards apply to all operators and the conveyances they use to provide public transport services. They also apply to providers ...’.
8. Section 1.5 provides that ‘[t]hese Standards are accompanied by Guidelines. Passengers, operators and providers need to consult the Guidelines when interpreting these Standards’.
9. Section 1.12 defines a ‘conveyance’ as including a ‘taxi’.
10. Section 1.20 defines the term ‘operator’ to mean ‘a person organisation (including the staff of the organisation) that provides a public transport service to the public or to sections of the public. A public transport service may have more than one operator’.
11. Section 1.22 defines the term ‘provider’ to mean ‘a person or organisation that is responsible for the supply or maintenance of public transport infrastructure. A provider need not be an operator’.
12. Section 1.23(1) provides that ‘[a] public transport service is an enterprise that conveys members of the public by land, water or air’.
    
13. Section 1.11 defines the term ‘allocated space’. It states:

‘1.11 Allocated space

An allocated space is a three dimensional space that can accommodate a wheelchair or similar mobility aid.’

14. Part 9 of the Disability Standards deals with allocated space. Section 9.1 is entitled ‘Minimum size for allocated space’. Section 9.1 states:

‘9.1 Minimum size for allocated space

The minimum allocated space for a single wheelchair or similar mobility aid is 800 mm by 1300 mm (AS1428.2 (1992) Clause 6.1, Clear floor or ground space for a stationary wheelchair).

Conveyances Premises Infrastructure
except dedicated except airports that do
school buses and not accept regular public
small aircraft transport services

15. The Disability Standards incorporate some Australian Standards. Section 1.6(c) of the Disability Standards prescribes some of the additional requirements of Australian Standard 1428.2 (Design for access and mobility. Part 2: Enhanced and additional requirements - Buildings and facilities, 1992) (‘Australian Standard 1428.2’) for transport premises, infrastructure and conveyances.
16. Clause 6.1 of Australian Standard 1428.2 states:

‘6.1 Clear floor or ground space for a stationary wheelchair The minimum clear floor or ground space required to accommodate a single stationary wheelchair and occupant shall be 800 mm by 1300 mm (see Figure 1). The minimum clear floor or ground space for wheelchair may be positioned for forward or parallel approach to an object (see Figure 1). Clear floor or ground space for wheelchairs may be part of the knee space required under the objects. [Bold in original; italics emphasis added.]

17. Section 9.3 of the Disability Standards is entitled ‘Minimum head room’. Section 9.3 applies to accessible taxis. It states:

‘9.3 Minimum head room

(1) The minimum head room in an allocated space is 1410 mm.

Note See section 12.5 in relation to minimum doorway opening.

(2) For a conveyance entering service on or after 1 January 2013, the minimum head room is 1500 mm.

Conveyances

• Accessible taxis’

18. Section 12.5 of the Disability Standards is entitled ‘Vertical height of doorways’.

‘12.5 Vertical height of doorways

(1) Doorways must have an unobstructed vertical height of at least 1400 mm.

Note See section 9.3 in relation to internal head room.

(2) For a conveyance entering service on or after 1 January 2013, the minimum unobstructed doorway height must be 1500 mm.

Conveyances

• Accessible taxis’

THE PARTIES’ RESPECTIVE POSITIONS

19. The applicant submitted that on the proper interpretation of ss 1.11, 9.1 and 9.3 of the Disability Standards, the answer to the above question is ‘no’ on the basis that the space should measure 800 mm by 1300 mm at all points in the horizontal plane and should measure 1410 mm at all points above the horizontal plane. In other words, it is the applicant’s position that the three dimensional space is required to have no intrusions into the allocated space such that it is a rectangular prism.
20. On the hearing of the separate question on 1 December 2010 there was no appearance on behalf of the first respondent, but in written submissions it took no position because it contended it is not an ‘operator’ of WATs and would not be affected by the outcome if the separate question was answered ‘no’ (as the applicant contended). As to whether the separate question is hypothetical, as contended by the third respondent, the first respondent accepted that it was potentially hypothetical.
21. The first respondent’s written submissions read:

‘If the Applicant’s interpretation of the standards is accepted, the Applicant concedes that the question of whether the First Respondent is an “operator” is a matter that must be determined (but later). This demonstrates a “cart before horse” approach to this litigation. [The Applicant] seeks an order against “operators” directing them to modify vehicles if the separate question is answered “no”. If the First Respondent is not an “operator” no such order can or ought be made and the separate question (at least against the First Respondent) would have served no purpose.’

22. The first respondent says:

‘[I]t agreed to the question being set down because (a) it contends it is not affected by the outcome and (b) the answer to the separate question may bring the matter to a swift conclusion.’

23. The third respondent’s position may be summarised as follows:

(1) The Disability Standards do not apply directly to the third respondent since he is not an ‘operator’ (or a ‘provider’): s 1.4(2).

(2) The first respondent denies that it is an ‘operator’ of a public transport service.

(3) The third respondent does not admit that the first or second respondent is an ‘operator’.

(4) Unless the applicant can establish that the first respondent and/or the second respondent are ‘operators’, his action is doomed to fail.

(5) The third respondent did not agree with the applicant’s interpretation of ss 1.11, 9.1 and 9.3 of the Disability Standards. However, the third respondent did not contend that the question should be answered ‘yes’. The third respondent submitted that the answer is:

‘No, but sections 1.11, 9.1 and 9.3 of the Disability Standards, in their application to accessible taxis, are satisfied by a three dimensional space which measures 800 mm by 1300 mm at the ground and has head room of 1410mm measured from the ground.
Provided these requirements are satisfied, the three dimensional space need not be a rectangular prism and encroachments are permitted into the horizontal plane measuring 800 mm by 1300 mm at points above the ground.’

THE APPLICANT’S SUBMISSIONS IN SUPPORT OF HIS POSITION

24. Senior counsel for the applicant observed that there was not a lot more to be said about the question than had been put in the applicant’s written submissions. They are paraphrased below.
25. The applicant contended that the words in ss 1.11, 9.1 and 9.3 of the Disability Standards should be given their plain and ordinary meaning. Read together, these sections require a three-dimensional space measuring 800 mm in width, 1300 mm in length and 1410 mm in height.
26. The requirement set out in s 9.3 in relation to head room refers to the height throughout the entire allocated space. According to the applicant, this results in a practical application of the Disability Standards. It recognises that different wheelchair users will have different heights and will sit differently and in different wheelchairs.
27. The applicant contended that the preferred interpretation of the relevant sections of the Disability Standards requires an allocated space within a WAT that is a three-dimensional space with dimensions of 800 mm in width, 1300 mm in length and 1410 mm in height. The applicant contended that the three-dimensional space is required to have no intrusions into the allocated space, such that it is a rectangular prism.
28. Thus the allocated space for a single wheelchair is, according to the applicant, a three-dimensional space with a height of 1410 mm at all points above a horizontal plane measuring 800 mm by 1300 mm.
29. The alternative interpretation of the relevant sections, which the applicant submitted was wrong, does not require a rectangular prism. On this alternative view, provided the head room height is 1410 mm in the area where the passenger’s head is, the requirements are met; the head room height is not required to be 1410 mm throughout the area above the floor space area. This interpretation also permits intrusions into the allocated space.
30. According to the applicant, his interpretation of the relevant sections of the Disability Standards promotes the purpose and object of the DDA (see [6] above), consistently with the interpretation required by s 15AA(1) of the Acts Interpretation Act 1901 (Cth).
31. Reference was made to CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCATrans 242; (1997) 187 CLR 384 at 408, where Brennan CJ, Dawson, Toohey and Gummow JJ said:

‘[T]he modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses “context” in its widest sense to include such things as the existing state of the law and the mischief ... the statute was intended to remedy.’

32. In the present matter, the mischief, according to the applicant, is provision of accessible public transport for persons with a disability.
33. The purpose of the DDA is to eliminate discrimination against people with disabilities, whilst the Disability Standards aim to remove discrimination in the area of public transport. WATs, the subject matter of these proceedings, are undoubtedly an attempt to assist in the elimination of discrimination for people with disabilities in the area of taxi services. The applicant submitted that the purpose of the DDA and the Disability Standards is not furthered by the alternative interpretation of ss 1.11, 9.1 and 9.3 of the Disability Standards.
34. The applicant contended that if it is accepted that there is ambiguity in the meaning of the relevant sections of the Disability Standards, namely, to what area the minimum head room requirement in s 9.3 applies, then the section should not be construed narrowly as only referring to a height at a single point. Such a construction results in wheelchair users, including the applicant, being unable to use a taxi service that was specifically designed for people with disabilities.
35. Moreover, any such construction would favour substance over form. Although the words ‘head room’ could be regarded as referring to the area above which any passenger’s head is located, this would undermine the purpose of the Disability Standards, and the DDA, namely, to make public transport accessible to persons with disabilities.
36. Further, the applicant contended, a construction that does not lead to an unintended or impractical result is to be preferred. In the present matter, ss 1.11, 9.1 and 9.3 of the Disability Standards should not be interpreted to lead to the result that vehicles which are intended to carry passengers with wheelchairs cannot meet its purpose: Cooper Brookes (Wollongong) Pty Limited v Federal Commissioner for Taxation [1981] HCA 26; (1981) 147 CLR 297 at 320 – 321.
37. Still further, anti-discrimination legislation, including the DDA, is protective and remedial in nature. According to the applicant, it should be given a broad and beneficial construction. Reference was made to IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1, where Kirby J stated at 58:

‘Especially where important human rights are concerned, protective and remedial legislation should not be construed narrowly lest courts become the undoers and destroyers of the benefits and remedies provided by such legislation.’

38. Finally, the applicant observed that the DDA and the Disability Standards give effect to a range of international human rights obligations. In cases concerning human rights legislation which refer to international human rights instruments, the applicant contended that the Court should construe the provisions in issue in a manner which accords with Australia’s obligations.

THE THIRD RESPONDENT’S SUBMISSIONS IN SUPPORT OF HIS POSITION

39. The third respondent submitted that the applicant’s submissions failed to refer to the Guidelines which must be considered in order to properly construe the ‘allocated space’ provisions in the Disability Standards (see [8] above).
40. The Guidelines deal with ‘Allocated Space’ in Div 1 (ss 9.1 to 9.4) of Pt 9. Section 9.1 of the Guidelines provides:

‘(1) Two assumptions underlie the Disability Standards. First, that some passengers will use large mobility aids such as powered wheelchairs ...

(2) Thus, the Disability Standards require that specific space be allocated on conveyances to accommodate passengers using wheelchairs or similar mobility aids.’

The third respondent contended that s 9.1 is recognition of the fact that there is no standard size wheelchair or mobility aid. A decision has therefore been made to nominate a ‘specific space’ to be allocated to accommodate passengers using mobility aids. That a specific space has been nominated has the obvious consequence that some larger mobility aids may simply not fit into that specified space.

41. Section 9.3 of the Guidelines relevantly provides:

‘(1) The Disability Standards use the minimum 800 mm by 1300 mm dimensions for allocated space from AS1428.2 (1992) even though it was accepted, at the time of preparing the Disability Standards, that the source data may have been dated.

(2) Although the introduction of these limits on public transport may mean that manufacturers will restrict the dimensions of their product wherever possible, operators and providers should be equally prepared for a future revision of Australian Standards to increase the dimensions.

(3) Consequently, the Taskforce strongly recommends that operators and providers offer additional area in allocated spaces, particularly extra length, and take care to ensure that manoeuvring areas involving awkward angles of approach are similarly generous.’

According to the third respondent, s 9.3 also reflects acceptance of the fact that not all wheelchairs and mobility aids will be able to fit into the allocated space.

42. The third respondent submitted that there were three vices in the approach the applicant had taken to the interpretation of ‘allocated space’ for the purpose of the Disability Standards.
43. The first vice in the applicant’s approach is to read words into the Disability Standards. Section 1.11 defines an ‘allocated space’ as a three-dimensional space. It does not define an allocated space as a ‘rectangular prism’. A three-dimensional space need not be a rectangular prism.
44. The second vice in the applicant’s approach is to ignore express words in s 9.1. Section 9.1 of the Disability Standards relevantly provides:

‘The minimum allocated space for a single wheelchair or similar mobility aid is 800 mm by 1300 mm (AS 1482.2 (1992) Clause 6.1, Clear floor or ground space for a stationary wheelchair).’ (Underline emphasis added.)

45. The highlighted portion of that section must be given some effect, since a court construing a statutory provision must strive to give meaning to every word of the provision. See, for example, Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405 at 414 per Griffith CJ and Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [71] per McHugh, Gummow, Kirby and Hayne JJ. The effect that it is to be given is dictated by s 1.6 of the Disability Standards, which relevantly provides:

‘These Standards:

...

(c) prescribe some of the additional requirements of Australian Standard 1428.2 (Design for access and mobility, Part 2: Enhanced and additional requirements – Buildings and facilities, 1992) for transport premises, infrastructure and conveyances ...’ (Emphasis added.)

46. By virtue of s 1.6 of the Disability Standards, s 9.1 of the Disability Standards prescribes cl 6.1 of AS1428.2 (1992). ‘Prescribe’ in this sense is to be understood as laying down a rule. Thus, the size of the allocated space is to be measured by applying cl 6.1 of AS1428.2 (1992). This proposition is reinforced by s 1.10 of the Guidelines, which relevantly provides:

‘(1) It is intended that the Disability Standards be read in conjunction with certain industry guidelines such as Australian Standards (AS) ...

(2) If provisions of ... AS1428.2 (1992) are applied by the Disability Standards, they must be complied with by public transport services in all States and Territories.’

47. Clause 6.1 of AS1428.2 (1992) is important in this case because it is clear from that provision that the size of the allocated space is one determined at ground level.
48. The third respondent contended that the highlighted portion of cl 6.1 reproduced in [16] above, indicates that there may be encroachments into the space along the vertical plane. That is confirmed by figure 1(b), which shows an object encroaching.
49. According to the third respondent, it is also relevant to note that s 9.1 of the Disability Standards applies to all conveyances (except dedicated school buses and small aircraft and all infrastructure except certain airports). It does not just apply to taxis, which may well be the conveyances with the most confined spaces. In the case of other conveyances and infrastructure, the issue of encroachment may not have been so significant and that may explain why it was considered appropriate to define the width and length of the allocated space by reference to clear floor or ground space.
50. The applicant’s third vice is to misconstrue s 9.3 of the Disability Standards. Section 9.3 refers to ‘minimum head room’. It does not refer to the height throughout the entire allocated space. If that was the intention, it would have been easy enough to say so. There is no reason that ‘head room’ should not be given its plain and ordinary meaning.
51. In the result, the third respondent submitted that the applicant’s contention that ss 1.11, 9.1 and 9.3 of the Disability Standards when ‘read together’ produce a result where an allocated space is a rectangular prism measuring 800 mm in width, by 1300 mm in length and 1410 mm in height’ ignores express words used in each of those sections and reads in words that simply are not there. Such an approach does not, as the applicant suggested, give those provisions their ‘plain and ordinary meaning’. It is the third respondent’s construction which ascribes ss 1.11, 9.1 and 9.3 of the Disability Standards their plain and ordinary meaning.
52. The third respondent acknowledged that it is true that the modern approach to statutory construction involves consideration of statutory context (including the mischief to which the statute is directed) in the first instance: CIC Insurance Ltd at 408. See also Project Blue Sky Inc at [69]; and that it may be readily accepted that the Disability Standards should be interpreted in such a way as to eliminate discrimination as far as possible (cf s 1.2 of the Disability Standards). But an appeal to this purpose does not advance the applicant’s argument when there is clear recognition in the Guidelines that not all wheelchairs or other mobility devices will fit in the allocated space. There are limits. The task for the Court is to properly construe those limits.
53. The third respondent referred to what Gordon J said in White v Designated Manager of IP Australia (No 2) [2008] FCA 816; (2008) 171 FCR 15 at [19]:

‘[T]he purposive approach to statutory construction is not a carte blanche licence to courts to depart from unambiguous plain meaning. While purpose may sometimes be used to add, subtract, or clarify words in a statute or regulation (Saraswati [1991] HCA 21; 172 CLR 1 at 22),

... where the text of a legislative provision is grammatically capable of only one meaning and neither the context nor any purpose of the Act throws any real doubt on that meaning, the grammatical meaning is “the ordinary meaning” to be applied. A court cannot depart from “the ordinary meaning” of a legislative provision simply because that meaning produces anomalies[.]’

THE APPLICANT’S SUBMISSIONS IN REPLY

54. The applicant made a number of submissions in reply. The more pertinent are summarised below.
55. The applicant pointed out that the third respondent’s reference to the Guidelines does not include a reference to s 12.3. It provides:

‘12.3 Entry into conveyances

The intent of the Disability Standards is that passengers using mobility aids should be able to enter conveyances without having to lower their heads or change their normal posture.’

The applicant submitted that s 12.3 of the Guidelines is relevant as it supports the applicant’s contention that the height of the allocated space should be 1410 mm throughout the entire allocated space. Although the head room is distinct to the vertical height of doorways, if the vertical height of doorways is to be ‘an unobstructed vertical height of at least 1400 mm’ (s 12.5 of the Disability Standards) and passengers should not have to lower their heads or alter their normal posture to enter a taxi, then it followed, according to the applicant, that the height of the allocated space immediately inside the doorway of a taxi, that is, the three-dimensional allocated space, should also be 1410 mm.

56. The applicant acknowledged that one of the assumptions underlying the drafting of the Disability Standard was that larger wheelchairs and mobility aids might not be accommodated within the allocated space (see the third respondent’s submissions at [40] and [41] above). However, the applicant observed, the Disability Standards were designed to accommodate the vast majority of wheelchairs and mobility aids. The Australian Standard AS1428.2 (1992), to which the third respondent refers to as being prescribed by the Disability Standards, was drafted based on research so that the requirements were suitable for 90% of users (Australian Standard 1428.2, p 2).
57. According to the applicant, the third respondent seemed to imply that the applicant’s difficulty in accessing WATs is due to the size of his wheelchair. The applicant submitted that his difficulty accessing WATs is not due to the size of his wheelchair (which is not unusually large and measures approximately 1350 mm in length), but rather the interpretation of the Disability Standards adopted by the third respondent. The applicant submitted that the third respondent’s interpretation does not meet the requirements of 90% of users.
58. The applicant submitted that it was not clear, from the words of the last sentence in cl 6.1 of Australian Standard 1428.2 upon which the third respondent relied in support of the contention that there can be encroachments into the allocated space (see the third respondent’s submissions at [48] above), that those words, or figure 1(b), support such a contention. The applicant observed that cl 5 of Australian Standard 1428.2 seems to confirm that encroachments into spaces are not permitted. Clause 5 provides: ‘The dimensions given throughout this Standard shall not be reduced by projecting skirtings, kerbs, handrails or other fixtures’. This, the applicant contended, supports his interpretation that the allocated space inside a WAT should not have any encroachments.

ANALYSIS

59. Consistent with the third respondent’s position outlined in [23(1) – (4)] above, but inconsistently with the fact that the third respondent consented to the order made on 8 October 2010 for the hearing and determination of the question in [4] above separately prior to trial, counsel for the third respondent pressed the argument that, in the absence of an agreed statement of facts beyond those contained in [2] above and the jurisdictional facts in [1] above, in particular the absence of agreement or a finding that the first and second respondents are ‘operators’, determination of the question could only give rise to a hypothetical answer and, in these circumstances, it was open to the Court, after hearing argument, to order that it is inappropriate to answer the question on the basis that it is hypothetical. Reference was made to passages in the joint judgment in the High Court in Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334 at [45], [47], [48] and [49].
60. I am of the view that this argument has considerable force but, upon consideration, I have decided to decline the invitation inherent in the argument, principally for two reasons:

(1) The making of the order was consented to by the third respondent in the first place; and

(2) second, as an exercise in case management, I am of the view that a substantive answer to the question may bring the proceeding to a swift conclusion.

I have therefore decided to proceed with the determination of the question.

61. Unfortunately, the question as framed calls only for an affirmative or negative answer. Both the applicant and the third respondent contend that it should be answered in the negative. I agree, but it is their respective processes of reasoning in support of that answer where the real difference between them resides. Without a substantive consideration and determination of the preferable interpretation of ss 1.11, 9.1 and 9.3 of the Disability Standards, the answer will have no utility as a case management mechanism. In those circumstances, my second reason for deciding to proceed with the determination of the question (see [60(2)] above) – an exercise in case management which may bring the proceeding to a swift conclusion – would not be realised.
62. I am unable to agree with the applicant’s contention that, on their proper construction, ss 1.11, 9.1 and 9.3 of the Disability Standards, in their application to WATs, can only be satisfied by a three-dimensional space that measures 800 mm by 1300 mm at all points in the horizontal plane and that measures 1410 mm at all points above the horizontal plane; in other words, that the Disability Standards require, as a minimum, that the ‘allocated space’ as defined be a rectangular prism with no encroachments.
63. On the other hand, there can be no doubt, in my view, that s 9.1 of the Disability Standards, by virtue of s 1.6(c) of the Disability Standards and cl 6.1 of Australian Standard 1482.2, requires the ‘allocated space’ to have a clear floor or ground space having a minimum measurement of 800 mm by 1300 mm. The reference to ‘clear’ is a reference to clear of objects encroaching at the ground level. So much was conceded by the third respondent.
64. It can also be accepted, in my view, that s 9.1 of the Disability Standards, by virtue of s 1.6(c) of the Disability Standards and cl 6.1 of Australian Standard 1482.2, permits encroachments into the horizontal plane above the clear floor or ground space provided such encroachments do not –

(1) prevent or impede full utilisation of the clear floor or ground space by the wheelchair and occupant; or

(2) require wheelchair occupants to lower their heads or change their normal posture in the course of entering the WAT to the point of final position.

I do not accept the third respondent’s submission, in the course of oral argument, that encroachments into the horizontal plane above the clear floor or ground space have no limitation. The limitation in (1) is to be inferred from cl 5 of Australian Standard 1428.2 (see [58] above) and the limitation in (2) is to be inferred from s 12.3 of the Guidelines (see [55] above). The limitation in s 12.3 of the Guidelines is by reference to the words ‘enter conveyances’, not just the doorway of those conveyances.

65. In my view, s 9.3 of the Disability Standards when it refers to ‘minimum head room’ of 1410 mm is referring to the height between the floor or ground space and the ceiling space in those parts of the vertical plane through which the head and shoulders of the wheelchair occupant will pass or stand from first accessing the WAT to and including the point of final position. It does not require the height between the floor or ground space and the ceiling space to be not less than 1410 mm in all parts of the vertical plane.
66. For the reasons set out in [62] to [65] inclusive, I would answer the question ‘no’.
    

I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

A/g Associate:

Dated: 31 January 2011