Bradley v State of New South Wales [2002] NSWADT 11 (1 February 2002)

Last Updated: 16 May 2002

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL EQUAL OPPORTUNITIES DIVISION

CITATION: Bradley -v- State of New South Wales [2002] NSWADT 11

PARTIES: APPLICANT

David Bradley

RESPONDENT

State of New South Wales

FILE NUMBERS: 25 of 1998

HEARING DATES: 08/10/2001

SUBMISSIONS CLOSED: 08/10/2001

DECISION DATE: 01/02/2002

BEFORE: Hennessy N (Deputy President)Mooney L - MemberLau L - Member

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997

Anti-Discrimination Act 1977

Crown Proceedings Act 1988

Disability Discrimination Act 1992 (Cth)

CASES CITED: Crewdson -v- New South Wales Health Department Medical Appeals Panel (EOD) [2001] NSWADTAP 11

Wentworth v Wentworth & Ors [2000] NSWCA 350

Rajski v Powell (1987) 11 NSWLR 522

Sirros v Moore & Ors [1975] 1QB 118

Tredinnick -v- Wentworth Area Health Service [2000] NSWADT 172

Assal v Department of Health Housing and Community Services (1992) EOC 92-409

State Electricity Commission of Victoria v Rabel & Ors (1998) 1 VR 102

Reyes-Gonzalez v Sydney Institute of Technology (1998) NSWEOT (6 March 1998)

Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 Khan v Macquarie University and Webster [1999] NSW ADT 100

Langley v Niland & Anor at 107

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; 1964 112 CLR 125

Tannock v State of New South Wales [1999] NSWADT 31 (11 May 1999)

Ravel v Plastral Fidence Pty Ltd [1999] NSWADT 18

Australian Iron and Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165

Waters v Public Transport Corporation (1991) EOC 92 390

British Columbia (Public Service Employee Relations Commission) v The Government of the Province of British Columbia as represented by the Public Service Employee Relations Commission [1999] 3 SCR 3

Scott & Anor v Telstra Corporation Limited (1995) EOC 92-717

Druett and Cooper v State of New South Wales No H99/6 and H98/70, Human Rights and Equal Opportunity Commission, 17 April 2000

APPLICATION: Dismissal of complaint - frivolous, vexatious, misconceived or lacking in substance

Joinder of parties

MATTER FOR DECISION: Preliminary matter

APPLICANT REPRESENTATIVE: APPLICANT

In person

RESPONDENT REPRESENTATIVE: RESPONDENT

C Ronalds, barrister

ORDERS: 1. The applicant's application to join the Director General, Attorney General's Department as a party to these proceedings is refused.

2. The respondent's application that the complaint be dismissed is refused.

3.The matter to be listed for hearing in consultation with the Registrar.

Reasons for Decision:

Introduction

1 On 13 March 1998, the President of the Anti-Discrimination Board (ADB) referred a complaint from Mr Bradley to the Tribunal under s 94(1) of the Anti-Discrimination Act 1977 (AD Act). The complaint alleged discrimination on the ground of disability in the provision of goods and services.

2 Between February and April 1996 Mr Bradley was the plaintiff in proceedings under the Family Provisions Act 1982 heard in the Equity Division of Supreme Court by Master McLaughlin. Mr Bradley has a hearing impairment. He alleges that he was discriminated against on the ground of his disability because the respondent failed to provide him with Assistive Listening Systems (ALSs) such as audio loop listening systems or infra red listening systems to assist him to hear the proceedings. He alleges that he asked for a suitable ALS to be provided but he (and/or his legal representative) were told that no such equipment existed and, on another occasion, that it could not be found. He also alleges that suitable ALSs were available at the time and should have been provided to him on request.

Three preliminary applications

3 These proceedings concern two preliminary applications by the respondent and one by the applicant. The respondent's first application is to strike out paragraphs 9, 10 and 11 of the applicant's Points of Claim. The respondent's second application is for the complaint to be dismissed pursuant to s 111 of the (AD Act) or s 73(5)(h) of the Administrative Decisions Tribunal Act 1997 (ADT Act) on the basis that it is misconceived or lacking in substance.

4 The applicant's application is to join the Director General, Attorney-General's Department as a respondent to these proceedings.

Joinder of party

5 Mr Bradley submitted that a second respondent should be joined to these proceedings, namely the Director General, Attorney General's Department. Ms Ronalds, representing the respondent, submitted that the State of NSW (Attorney General's Department) was the correct and only respondent.

6 Section 5(1) of the Crown Proceedings Act 1988 (NSW) states that:

Any person, having or deeming himself, herself or itself to have any just claim or demand whatever against the Crown (not being a claim or demand against a statutory corporation representing the Crown) may bring civil proceedings against the Crown under the title "State of New South Wales" in any competent court.

7 Section 5 of the AD Act states that "This Act binds the Crown not only in right of New South Wales but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities."

8 These provisions establish that the `State of New South Wales' is a correct respondent in relation to Mr Bradley's complaint. The Director-General, Attorney General's Department, would have been a correct respondent had the matter related to employment in the Attorney General's Department. (See s 4A AD Act.) This matter relates to the provision of goods and services. There are no special provisions in the AD Act which nominate a particular person or office as the correct respondent in relation to matters involving the provision of goods and services by state government departments. Consequently s 5 of the Crown Proceedings Act applies and the Director General, Attorney General's Department, is not joined as a respondent to these proceedings. (See also Crewdson -v- New South Wales Health Department Medical Appeals Panel (EOD) [2001] NSWADTAP 11.)

Application to strike out parts of the Points of Claim

9 The respondent applied to have paragraphs 9, 10 and 11 of the Points of Claim struck out. Those paragraphs are set out below:

9. The complainant's solicitor advised Master McLaughlin at the commencement of proceedings on 29 February 1996 that the complainant was severely hearing impaired. The Master gave permission for the Complainant to sit at the bar table during proceedings, but made no attempt to otherwise accommodate the complainant's disability. The Master did not advise the Complainant of the existence of Audio Loop or Infra Red Assistive Listening Systems.

10. The complainant was not advised on subsequent hearing days, 1 March 1996, 9 April 1996, 10 April 1996 or 11 April 1996 by the Court that Audio Loop or Infra Red Assistive Listening Systems were available to accommodate his disability.

11. The complainant suffered distress, humiliation and loss of professional prestige during the course of the proceedings because of the Respondent's failure to accommodate the complainant's disability. The complainant was disadvantaged by being unable to hear the Master or Counsel clearly. The complainant was unable to hear most of the proceedings, and became exhausted and disorientated such that he was unable to provide proper instructions throughout the proceedings.

10 The application to strike out these paragraphs was made on three grounds:

that Master McLaughlin who heard the matter, is protected by the principle of judicial immunity in relation to anything that occurred in the court room or that is contained in his decision;

that the Tribunal has no jurisdiction to hear certain allegations in the Points of Claim because they were not referred to the Tribunal by the President of the Anti-Discrimination Board; and

in any case, Mr Bradley did not suffer any detriment as a result of any act of the Master.

Judicial immunity

11 Before looking more closely at the principle of judicial immunity, one point should be clarified. Mr Bradley did not lodge a complaint of discrimination against Master McLaughlin, nor has he sought to join him as a party to these proceedings.

12 Ms Ronalds submitted that Master McLaughlin is protected by the principle of judicial immunity and that as a consequence of that protection Mr Bradley cannot rely on any thing that occurred in the hearing room or any matters referred to in the reasons for decision.

13 We accept the first part of Ms Ronald's submission and find that Master McLaughlin is protected by the principle of judicial immunity in the same way as a judge of the Supreme Court would be protected. Authority for this conclusion can be found in the following extract from Wentworth v Wentworth & Ors [2000] NSWCA 350 Fitzgerald JA said at [58] that:

If judicial immunity is afforded to a judge in respect of his or her exercise of the court's power and jurisdiction, there is no rational justification for denying the same immunity to a master or a registrar when he or she performs judicial functions in the exercise of the court's jurisdiction and powers. The rationale behind the doctrine of judicial immunity is equally applicable to Judges and court officers. See 4 Halsbury's Law of England, vol. 1, para. 206; Najjar 25 NSWLR 224, 249 (Clarke JA). It is the nature of the function being performed and the connection of that function with the judicial process which determines whether or not immunity attaches.

14 In the present case we assume that Master McLaughlin was hearing and determining the matter pursuant to s 118 of the Supreme Court Act 1970 which applies to divisional masters. That section states that:

(1) In this section, divisional master means, in relation to any Division, a master or acting master assigned to the Division or a master or acting master directed by the Chief Justice to act in the Division.

(2) A divisional master may exercise such powers of the Court in the Division as are, by or under this or any other Act, conferred upon a master assigned to the Division.

(3) A judgment given or an order made by a divisional master in any Division may be set aside or varied by the Court.

(4) Subject to subsection (3), a judgment given or an order made or direction given by a divisional master in any Division shall have effect as a judgment or order or direction of the Court in the Division, whether or not the judgment, order or direction is within the powers mentioned in this section of the divisional master.

(5) A divisional master in any Division shall constitute the Court in that Division for the purpose of the exercise of the powers mentioned in subsection (2).

15 Consequently Master McLaughlin was performing judicial functions in the exercise of the court's jurisdiction. In this role, he is protected by the principle of judicial immunity.

16 Judicial immunity is a common law principle developed in England as long ago as 1346. (See Rajski v Powell (1987) 11 NSWLR 522 at 528 per Kirby P.) Courts have acknowledged the rule in common law jurisdictions since that date. In Rajski v Powell, the Court of Appeal quoted a typical version of the principle as enunciated by Aickin J in an unreported decision, Durack v Gassior (High Court of Australia, 13 April 1981):

. . . No action may be brought under our legal system against judges for acts done in the course of hearing or deciding cases which come before them (p 538 per Priestley JA).

17 Priestley JA added at p 539 that "there is some room for argument about the way in which the test should be stated when there is a supportable allegation that the judge was without jurisdiction to do the act complained of." Since there is no such allegation in this case, we do not need to explore that issue.

18 In the celebrated House of Lords case of Sirros v Moore & Ors [1975] 1QB 118 at 136 Lord Denning said at that judicial immunity was necessary "so that he (or she) should be able to do his (or her) duty with complete independence and free from fear." (Words in brackets added.)

19 The principle of judicial immunity relates to the conduct of a judge (or equivalent) while performing judicial functions, such as hearing and determining a case. Such a person, including Master McLaughlin in this case, is absolutely immune from civil liability for all his or her judicial acts unless he or she acts without jurisdiction. (See Olowofoyeku A, Suing Judges: A study of Judicial Immunity, Clarendon Press, Oxford 1993 at 59.)

20 Our conclusion from this analysis is that Master McLaughlin is not liable for anything he did or failed to do in the course of the proceedings involving Mr Bradley, nor is he liable for anything that appears in his written decision. Furthermore, the respondent is not vicariously liable for any acts or omissions of Master McLaughlin. Vicarious liability of employers and principals is dealt with in s 53 of the AD Act. That section provides that:

(1) An act done by a person as the agent or employee of the person's principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act.

(2) If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability.

(3) Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act.

(4) For the purposes of subsection (1), the principal or employer of a volunteer or unpaid trainee who contravenes Part 2A is the person or body on whose behalf the volunteer or unpaid trainee provides services.

21 The respondent is neither the employer nor the principal of Master McLaughlin so it cannot be vicariously liable for any of Master McLaughlin's acts or omissions. The relationship between the State and judicial officers was explored in Rajski v Powell (1987) 11 NSWLR 522 Kirby P at 530:

It is fundamental to our constitutional arrangement that judges (and now magistrates) are completely independent of the Executive Government, including the Attorney-General.

Essential to the notion of vicarious responsibility is the power to direct and control. Such power is absent in the relationship between the Attorney-General and judicial officers . . . Indeed it is fundamental to our arrangements for the administration of justice that no such power should exist . . .

22 We accept that neither Master McLaughlin, nor the respondent, is liable for anything Master McLaughlin did or failed to do in the course of the proceedings involving Mr Bradley or in relation to anything that appears in the written decision. However, that is not to say that everything that happened during the course of the proceedings, or that is recorded in the decision, should be excised from Mr Bradley's complaint. If the Tribunal finds Mr Bradley's complaint to be substantiated, we may award damages or some other remedy against the respondent pursuant to s 113 of the AD Act. In assessing damages (and perhaps in formulating other remedies) it will be relevant to take into account evidence of what occurred during and after the hearing and what is recorded in the decision. On the basis of these conclusions, the passages underlined which relate to allegations that Master McLaughlin breached the AD Act, are struck from the Points of Claim. The passages which are not underlined remain because they may be relevant to other issues.

9. The complainant's solicitor advised Master McLaughlin at the commencement of proceedings on 29 February 1996 that the complainant was severely hearing impaired. The Master gave permission for the Complainant to sit at the bar table during proceedings, but made no attempt to otherwise accommodate the complainant's disability. The Master did not advise the Complainant of the existence of Audio Loop or Infra Red Assistive Listening Systems.

10. The complainant was not advised on subsequent hearing days, 1 March 1996, 9 April 1996, 10 April 1996 or 11 April 1996 by the Court that Audio Loop or Infra Red Assistive Listening Systems were available to accommodate his disability.

11. The complainant suffered distress, humiliation and loss of professional prestige during the course of the proceedings because of the Respondent's failure to accommodate the complainant's disability. The complainant was disadvantaged by being unable to hear the Master or Counsel clearly. The complainant was unable to hear most of the proceedings, and became exhausted and disorientated such that he was unable to provide proper instructions throughout the proceedings.

Jurisdiction of Tribunal

23 In paragraph 4(c) of their Points of Defence, the respondent alleged that the allegations in paragraphs 9, 10 and 11 that Master McLaughlin discriminated against Mr Bradley do not form part of the complaint which is before the Tribunal. Consequently the Tribunal has no jurisdiction to inquire into this alleged conduct.

24 This point was not explored at the hearing. We presume that it relates to the fact that no complaint of discrimination was made against Master McLaughlin. Our conclusions in relation to judicial immunity make it unnecessary to explore this submission further at this stage. We accept that the allegations of discrimination against Master McLaughlin cannot form part of Mr Bradley's complaint.

No detriment suffered by any act of Master McLaughlin

25 Ms Ronald's final submission on this point was that Mr Bradley suffered no detriment as a result of any act or omission of Master McLaughlin. As we have concluded that Master McLaughlin is not liable for his acts or omissions, it is unnecessary for us to come to any view on this issue.

Section 111 application

26 The second preliminary application made by the respondent was for the complaint to be dismissed pursuant to s 111 of the AD Act or s 73(5)(h) of the Administrative Decisions Tribunal Act 1997 (ADT Act). Section 111 of the AD Act states that:

(1) Where, at any stage of an inquiry, the Tribunal is satisfied that a complaint is frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be entertained, it may dismiss the complaint.

(1A) The Tribunal may dismiss a complaint if satisfied that the person or (in the case of a complaint made on behalf of more than one person) each person on whose behalf the complaint was made does not wish to proceed with the complaint.

(1B) The Tribunal may amend a complaint made on behalf of more than one person to remove a person as a person on whose behalf the complaint was made if the Tribunal is satisfied that the person does not wish to proceed with the complaint.

(2) Where the Tribunal dismisses a complaint under this section, it may order the complainant to pay the costs of the inquiry.

(3) Nothing in this section limits the generality of the powers conferred on the Tribunal by Chapter 6 of the Administrative Decisions Tribunal Act 1997.

27 Section 73(5)(h) of the ADT Act, which is within Chapter 6, states that:

The Tribunal may dismiss at any stage any proceedings before it if it considers the proceedings to be frivolous or vexatious or otherwise misconceived or lacking in substance.

28 Section 111(3) of the AD Act states that "Nothing in this section limits the generality of the powers conferred on the Tribunal by chapter 6 of the Administrative Decisions Tribunal Act 1997". Section 73(5)(h) is found in chapter 6 of the ADT Act. Consequently the two provisions can operate concurrently.

29 The grounds for dismissal in this case are that the complaint is either "misconceived" or "lacking in substance." The respondent does not rely on "any other reason" (which appears only in the AD Act provision) as a ground for dismissal. As there is no substantive difference between the two sections, the Tribunal can apply either the provisions of the AD Act or the ADT Act as outlined above. We choose to apply s 111 of the AD Act.

30 As the respondent pointed out in submissions to the Tribunal, the approach taken by the Tribunal in previous applications of this kind is usefully summarised in Tredinnick -v- Wentworth Area Health Service [2000] NSWADT 172 at [32] to [36]:

The terms "misconceived" and "lacking in substance" have been considered by many courts and tribunals in the context of interpreting anti-discrimination legislation at both the State and the Commonwealth levels: see for example Assal v Department of Health Housing and Community Services (1992) EOC 92-409; State Electricity Commission of Victoria v Rabel & Ors (1998) 1 VR 102; Reyes-Gonzalez v Sydney Institute of Technology (1998) NSWEOT (6 March 1998); Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73; and Khan v Macquarie University and Webster [1999] NSW ADT 100.

While there is no commonly accepted definition, we consider it is appropriate to describe a complaint as "misconceived" or " lacking in substance" if it can be demonstrated that there exists no factual basis for the allegations, or that the allegations lack merit: see Langley v Niland & Anor at 107; Reyes-Gonzales v Sydney Institute of Technology at 6 .

We are also of the view that a Tribunal should exercise its discretion to dismiss a complaint summarily with exceptional caution and only if the circumstances clearly warrant such action (see General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; 1964 112 CLR 125; Tannock v State of New South Wales [1999] NSWADT 31 (11 May 1999)). The need for caution is even more apparent in cases where a s 111(1) application is made prior to the adducing of the Applicant's evidence at the substantive hearing.

In the circumstances of the present case, in order to ascertain whether the complaint is "misconceived" or "lacking in substance", we propose to take the Applicant's foreshadowed evidence at its highest, so as to enable us to determine whether he could possibly substantiate a complaint under the Act : see Prakash v Bobb Borg Enterprises Pty Ltd at 13-14; Ravel v Plastral Fidence Pty Ltd [1999] NSWADT 18.

In essence, if we are of the view that the conduct complained of could not possibly amount to a contravention of the relevant provisions of the Act, we are bound to find the complaint is either "misconceived" or "lacking in substance". If we are not so persuaded, clearly this ground of the Respondent's application under s 111(1) of the Act must fail. (Emphasis added)

Summary of Mr Bradley's evidence

31 On the basis of the pleadings, the following matters are agreed:

The respondent provides registry functions for the Supreme Court of New South Wales and is responsible for the provision of Supreme Court services and facilities.

Mr Bradley has a disability as defined by the AD Act, namely a hearing impairment.

Mr Bradley was the plaintiff in Supreme Court of NSW Equity Division proceedings No 1229 of 1992 which were heard on 29 February, 1 March, 9 April, 10 April and 11 April 1996.

32 Mr Bradley's evidence is contained in the following material:

a) Statement of David Bradley dated 13 January 1999;

b) Statement of John McEnroe (solicitor for Mr Bradley) dated 11 January 1999;

c) Statement of R.W. Cameron (counsel for Mr Bradley) dated 7 January 1999;

d) Sydney Hospital Emergency Department Clinical Records dated 29 February and 9 April 1996;

e) Letter from Catherine Brown dated 26 April 1996;

f) Statement of Denis Wakefield dated 20 January 1999;

g) Further statement of David Bradley dated 20 July 2001.

33 At its highest, this evidence shows that:

Mr Bradley is assisted to hear more clearly by audio loop listening systems and infra red listening systems. Where these kinds of devices are installed he is able to hear clearly more than 80% of the time.

Mr Bradley contacted the respondent in February 1996, prior to the hearing of the matter, to enquire whether the court room allocated for his case would contain Assistive Listening Systems in order to accommodate his hearing impairment. Mr Bradley was advised that no such facilities existed.

Mr Bradley's solicitor, Mr John McEnroe, contacted the respondent in February 1996, prior to the hearing of his client's matter, to enquire whether the court room allocated to Mr Bradley's case would contain Assistive Listening Systems in order to accommodate Mr Bradley's hearing impairment. Mr McEnroe was advised that the equipment exists, but its whereabouts was unknown.

On 29 February 1996, prior to the commencement of the proceedings, Mr Bradley and his solicitor asked the Court Officer assigned to the hearing whether a hearing-audio loop facility was available. She told him that as far as she knew, the court room does not have such facilities.

Mr Bradley attended court on 29 February, 1 March, 9 April, 10 April and 11 April 1996 without the benefit of Audio Loop or Infra Red Assistive Listening Systems;

Mr Bradley was unable to follow clearly and precisely what was happening during the proceedings;

Mr Bradley's blood pressure increased during cross-examination and the matter was adjourned. He attended Sydney Hospital Casualty for treatment.

The hearing took two and half days longer than it should have. That delay is attributable to Mr Bradley's inability to clearly hear the questions asked in cross-examination.

Being unable to hear the Master or counsel clearly disadvantaged Mr Bradley. Mr Bradley was unable to hear most of the proceedings and became exhausted and disorientated such that he was unable to provide proper instructions throughout the proceedings. Mr Bradley's hearing impairment and court case experience exacerbated his other illnesses and has prolonged his recovery unduly. He suffered distress, humiliation and loss of professional prestige and increased legal costs during the course of the proceedings because of the respondent's failure to accommodate his hearing impairment.

By reason of the conduct the complainant suffered loss and damage.

34 One allegation of fact by Mr Bradley which requires further discussion is the allegation that "Assistive Listening Systems including infra red hearing equipment were available at the time for use by parties with a hearing impairment in Supreme Court proceedings provided sufficient notice is given." This allegation appears to be derived from a publication dated February 15 March 1995 called "Access-Pals" (Places with Assisted Listening Systems) produced by Self Help for Hard of Hearing People (SHHH). Page 18 of that document indicates that the Law Courts have infra red systems. A contact address and phone number is given. In addition, the publication "SHHH", published by SHHH Australia in February 1995 and entitled "Infra-red Assistive Listening Devices in NSW Law Courts" states that:

In order to assist hearing impaired persons who may be required to attend court proceedings the NSW Attorney General's Department has provided a number of infra-red assistive listening devices.

You should contact The Clerk of the Court (Local, District or Supreme) in which the hearing is to take place. He/she will then contact The Clerk of the Court, Level 4 Downing Centre, Liverpool St, Sydney, who will arrange for a system to be made available.

35 This evidence, although hearsay, is corroborated to some extent by Mr McEnroe's evidence that he contacted the Court's Administration Office at the Downing Centre and asked for assistive listening equipment to assist a hearing impaired witness. The officer dealing with the inquiry said words to the effect of "That equipment exists, but its whereabouts is not known to me."

36 The respondent referred to the statement of John Castellan, Deputy Chief Executive Officer of the Supreme Court (dated 11 March 1999) during the course of the hearing. That evidence states that in February 1996 an administrative officer would arrange for ALSs to be obtained from the Attorney General's Department on request.

37 Mr Ronalds submitted that one inference that could be drawn from Mr Castellan's statement was that the Supreme Court had the opportunity to make "hearing loop" and "infra-red" systems available to it if requested. Such systems were not available to be provided to Mr Bradley on this occasion when requested for the purpose of his hearing.

38 The evidence in relation to the existence and availability of ALSs is not conclusive. On the basis of the evidence at its highest, the respondent had access to ALSs which were available for use by people with a hearing impairment. There is no evidence at this stage from which an inference can be drawn about whether ALSs had ever been provided to any person with a hearing impairment prior to Mr Bradley's initial request in February 1996. There are clearly two possibilities. One is that ALSs had been provided to litigants with hearing impairments prior to that date and the other is that such equipment had not been provided. Because this may be a critical issue in determining whether the alleged treatment is in breach of the AD Act, and if so, whether the alleged treatment amounts to direct or indirect discrimination, we have assumed for the purposes of these proceedings that both possibilities should be considered.

Relevant legislation

39 The relevant provisions are s 49B of the AD Act. So far as is relevant to these proceedings, that section provides that:

(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if, on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, the perpetrator:

(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have such a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

(2) . . .

(3) . . .

(4) A reference in this section to persons who have a disability ("the particular disability") is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.

40 Mr Bradley stated at the hearing that he was alleging both direct and indirect discrimination on the ground of disability in the provision of goods and services by the respondent. Authorities differ as to whether direct and indirect discrimination are mutually exclusive. Brennan and Dawson JJ in Australian Iron and Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165 and Dawson, Toohey and McHugh JJ in Waters v Public Transport Corporation (1991) EOC 92 390 expressed the view that direct and indirect discrimination are mutually exclusive. Mason CJ and Gaudron J in Waters v Public Transport Corporation (1991) EOC 92 390 at 78,673 expressed the opposite view. Their Honours added that "In the United States and Canada anti-discrimination statutes expressed in general terms that do not draw any distinction between direct and indirect discrimination have been consistently construed as applying to both forms of discrimination." The view of the Canadian Supreme Court as expressed in British Columbia (Public Service Employee Relations Commission) v The Government of the Province of British Columbia as represented by the Public Service Employee Relations Commission [1999] 3 SCR 3 is that the conventional approach of categorising discrimination as direct and indirect should be replaced by a unified approach. This matter may need to be further explored at the substantive hearing.

41 Section 4A provides that disability need not be the only, or even the dominant, reason for the treatment:

If:

(a) an act is done for 2 or more reasons, and

(b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of this Act, the act is taken to be done for that reason.

42 Section 49M provides that disability discrimination is unlawful in relation to the provision of goods and services:

(1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability:

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

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

(2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services.

43 "Services" are defined in s 4 to include:

(a) services relating to banking, insurance and the provision of grants, loans, credit or finance,

(b) services relating to entertainment, recreation or refreshment,

(c) services relating to transport or travel,

(d) services of any profession or trade,

(e) services provided by a council or public authority,

(f) services consisting of access to, and the use of any facilities in, any place or vehicle that the public or a section of the public is entitled or allowed to enter or use, for payment or not.

44 We have concluded that Mr Bradley's complaint should not be dismissed as lacking in substance or misconceived. At its highest, his evidence could possibly amount to indirect disability discrimination. The basis for this conclusion is set out below.

Indirect discrimination

45 Elements of indirect discrimination. Based on the relevant legislation, the elements of indirect discrimination which Mr Bradley must establish could possibly be substantiated are that:

1. Mr Bradley has a disability within the meaning of the AD Act.

2. The respondent is providing goods or services.

3. The respondent required Mr Bradley to comply with a requirement or condition.

4. Mr Bradley could not comply with that requirement or condition.

5. A substantially higher proportion of persons who do not have a hearing impairment comply or are able to comply with that requirement or condition.

6. The requirement or condition is not reasonable having regard to the circumstances of the case.

46 The respondent agrees that the first and second elements have been made out. Mr Bradley characterised the "services" being provided by the respondent as "registry services and facilities" for the Supreme Court of New South Wales. Although the respondent accepted this characterisation, great care must be taken in defining the services under consideration.

47 Characterisation of "services". Services are defined in section 4(1) of the AD Act to include six nominated categories of services. The only category relevant for present purposes is category (e), the terms of which are: "services provided by a public authority". We find that the respondent, in its guise as the Attorney General's Department, is a public authority.

48 The identification of the service is a question of fact. (Waters v Public Transport Corporation (1991) EOC 92 390 at p 78,675). In Waters nine people with various disabilities complained that they had been discriminated against on the ground of their disability by the removal of conductors from trams and the introduction of scratch tickets. McHugh J at 78,699, made the point that 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 had erred in law in assuming that the relevant services in that case were "the public transport system." That characterisation was too broad and imprecise. Brennan J at 78,682, defined the services in that case as "the special services provided by conductors for the disabled and the general tram service available to the travelling public."

49 In Scott & Anor v Telstra Corporation Limited (1995) EOC 92-717, the Human Rights and Equal Opportunity Commission took a purposive approach to identifying the services being provided by Telstra in that case. Telstra refused to rent Mr Scott a tele-typewriter (TTY). He made a complaint of direct and indirect discrimination under the Disability Discrimination Act 1992 (Cth) (DDA). The basis of the complaint was the failure of Telstra to rent him a TTY. Sir Ronald Wilson characterised the services in the Telstra case as "the provision of access to a telecommunications service." (at 78,398).

50 The allegations in this case are comparable to those made in Waters and Telstra in that so called "special" services were denied to a person or people with certain disabilities. In both cases the court characterised the services as including these so-called "special" services.

51 The Annual Report of Attorney General's Department for 1995/96 defines the objective of the function of "court services" as:

"To support the judiciary in the administration of justice, and to provide access to, and delivery of, a high standard of relevant justice services in an efficient, economic and timely manner." (p 2)

52 Some of the achievements noted in the respondent's 1995/96 Annual Report included:

"Implementation of the Fairfield Community Court Access Project which focuses on identifying the barriers to justice existing for non-English speaking clients"; and

"the operation of an Aboriginal Court Liaison Officer pilot project at Lismore and Casino Local Courts."

53 In 1996, the Attorney General's Department characterised their services as "Access to justice services". Applying McHugh J's observations in Waters, this is a wide definition which does not identify the service with sufficient precision to allow the matters in issue to be determined. The facilities the respondent provides as part of its service to Mr Bradley and other members of the public involve general services to litigants such as court rooms, air-conditioning, toilets and waiting rooms. These general services also include administrative services such as acceptance of documents being filed and advice on completing relevant forms. So called "special" services are also provided as part of the broader service. The evidence at its highest is that these services include the availability of ALSs as well as specific assistance for indigenous Australians and people from non-English speaking backgrounds. (See extracts from Annual Report quoted above at para 23). All these aspects of the service, whether general or "special" enable a person who is a party to proceedings in the Supreme Court to participate in and contribute to those proceedings. The so-called "special" services allow people with certain characteristics (including Aboriginality, non-English speaking background and disability) to participate at the same or a similar level to people without those characteristics. Consequently the service being provided to Mr Bradley and other litigants in the Supreme Court, can be characterised as access to facilities, equipment and administrative support which allows parties to proceedings to participate in and contribute to the process by which their case is resolved judicially. (These services may also be provided to witnesses, lawyers and others participating in proceedings, but because Mr Bradley is a party to proceedings we have confined our characterisation of the service to litigants.)

54 This definition of the services being provided by the respondent is consistent with the definition adopted by Commissioner Street in Druett and Cooper v State of New South Wales No H99/6 and H98/70, Human Rights and Equal Opportunity Commission, 17 April 2000. That matter related to a complaint that the applicants were refused the opportunity to serve as jurors because of their respective disabilities. Commissioner Street concluded at p 18, that "providing the administration and management to enable eligible persons to serve on a jury" is within the meaning of services in s 24 of the DDA. Commissioner Street concluded at p 24 that the respondent "did refuse to provide that service to Ms Druett. . . by the act of the Sheriff's officer directing Ms Druett to complete a statutory declaration to be excused from jury duty against her wishes." Ms Ronalds sought to distinguish this decision on the basis that it does not relate to access to "special services" but rather to general services provided to all eligible jurors. Given the way we have characterised the services being provided by the respondent, that submission is not persuasive.

55 Requirement or condition. The third element of indirect discrimination as listed above at [45] is the respondent required Mr Bradley to comply with a requirement or condition. In Scott & Anor v Telstra Corporation Limited President Wilson characterised the service as "access to a telecommunications service" and the condition or requirement as that "the subscribers access that service through the medium of a T200 handset" (at 78,400). The requirement was formulated in that way because that handset was the only means of access to the tele-communications service provided by the respondent.

56 In Waters v Public Transport Corporation (1991) EOC 92 390 Mason CJ and Gaudron, Dawson, Toohey and Deane JJ all agreed that it was open for the Board to find that the removal of conductors from trams involved the imposition of a condition that the complainants use trams without the assistance of conductors. Mason CJ and Gaudron J noted that compliance may be required even if the requirement is not explicit (at 78,674).

57 Consistently with these cases, the requirement in this case could be formulated as follows:

In order to gain access to the services provided by the respondent, a person must do so without the benefit of an ALS.

58 If it is established that ALSs, though available, were not provided to litigants with a hearing impairment, then it will be arguable that a substantially higher proportion of Supreme Court litigants who do not have a hearing impairment comply or are able to comply (in a practical sense) with the requirement.

59 There is no need to address the question of whether the requirement is reasonable having regard to the circumstances of the case as that is a defence that would only arise if the other elements of indirect discrimination are made out at the final hearing.

60 Our conclusion is that Mr Bradley's complaint should not be dismissed as lacking in substance or misconceived because, at its highest, his evidence could possibly amount to indirect disability discrimination.

61 In these circumstances it is not necessary to consider whether Mr Bradley's complaint could also amount to direct disability discrimination.

Orders

1. The applicant's application to join the Director General, Attorney General's Department as a party to these proceedings is refused.

2. The respondent's application that the complaint be dismissed is refused.

3. The matter to be listed for hearing in consultation with the Registrar.