Walker v State of New South Wales [2003] NSWADT 13 (20 January 2003)

Last Updated: 3 March 2003

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL EQUAL OPPORTUNITIES DIVISION

CITATION: Walker v State of New South Wales [2003] NSWADT 13

PARTIES: APPLICANT

Scott Walker

RESPONDENT

State of New South Wales (Director-General, Attorney-General's Department)

FILE NUMBERS: 021026

HEARING DATES: 12/08/02

SUBMISSIONS CLOSED: 28-08-2002

DECISION DATE: 20-01-2003

BEFORE: Rees N - Judicial MemberNemeth de Bikal L - MemberStrickland J - Member

LEGISLATION CITED: Anti-Discrimination Act 1977

Crown Proceedings Act 1988

Disability Discrimination Act 1992 (Cth)

Evidence Act 1995

CASES CITED: Australian Iron and Steel Pty Ltd v Banovic [1989] HCA 56; (1987) 168 CLR 165

Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349

Commissioner of Police v The Estate of the Edward John Russell [2002] NSWCA 272

IW v City of Perth (1997) 191 CRL 1

Commissioner of Corrective Services v Aldridge ['2000] NSWADTAP 5

APPLICATION: Disability Discrimination - Goods and Services

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANT

In person

RESPONDENT REPRESENTATIVE: RESPONDENT

K Eastman, barrister

ORDERS: Complaints dismissed

Reasons for Decision:

Introduction

1 In this case the applicant, Mr Scott Walker, has alleged that the respondent, the State of NSW, has unlawfully discriminated against him on the ground of disability by refusing him access to court buildings on three occasions.

2 The case was heard by the Tribunal in Sydney on 12 August 2002. The applicant was not represented. At his request, he participated in the hearing by way of conference telephone. The applicant informed the Tribunal that he did not wish to attend the hearing in person as he had been informed by a person he had met in the street that he would be assaulted if he travelled to the city of Sydney. The respondent was represented by counsel, Ms Eastman.

3 In the paragraphs that follow we have set out the history of the proceedings, a summary of the evidence and the submissions made by the parties, our findings of fact and the reasoning process which has led us to conclude that the complaints should be dismissed.

History of the proceedings

4 This history is drawn, in large part, from the report of the President of the Anti-Discrimination Board (the President) which was tendered in evidence without objection from either party. On 16 November 2000 the President received a letter from solicitors acting for the applicant who claimed that Mr Walker had been denied access to the Parramatta Court complex on 24 July 2000 because of his disability. The solicitors, Warren F Ball & Co, alleged that "our client is disabled and for this purpose requires to walk with a stick". It was also claimed that after Mr Walker lodged a complaint about being denied access to the court building he received a special dispensation to enter the court complex but that "[h]e considers he should not require special dispensation to enter a court house in relation to a matter of which he is involved...". It appears that this letter to the President from the applicant's solicitor constitutes a complaint within the meaning of s 88 of the Act.

5 On 24 January 2001 the applicant lodged a second complaint with the President. In this complaint, which was written for the applicant by an officer of the Anti-Discrimination Board, Mr Walker referred to the incident of 24 July 2000, which was the subject of his solicitor's letter to the President, and to incidents in August 2000 and on 15 January 2001 when he claimed he was denied access to the Parramatta Court complex because he "tried to access the ct complex with my folding aluminium scooter which I use also because of my disability".

6 On 20 September 2001 the President wrote to Mr LG Glanfield, the Director-General of the Attorney-General's Department, about these incidents. Mr Glanfield responded to the President on 3 December 2001. He referred to reports he had received from Mr B Kelly, the Sheriff of NSW, Mr G Hiatt, the Clerk of the Court at Parramatta and Ms A Anderson, the Director of Local Courts and, in effect, refuted the suggestion that the officials responsible for regulating admission to the Parramatta Court complex had unlawfully discriminated against Mr Walker on the ground of his disability on the three dates which had been identified.

7 The President's report contained two further documents: a medical certificate from Dr Janak Shah and a handwritten document signed by Ms Frances Breen which states that "Mr Scott Walker has special dispensation to attend Parramatta Court Complex today (24th July 2000)" and that "[h]e is able to use his walking stick while in the building". The medical certificate by Dr Shah states:

Scott consulted me for this certificate. He has a past history of disc lesion and operation for this. He uses a staff to help in walking. I feel that this is appropriate.

8 On 4 March 2002 the President referred this matter to the Tribunal pursuant to s 94(1) of the Anti-Discrimination Act 1977 (the Act). The Tribunal has proceeded on the basis that this case involves two separate complaints to the President (see paragraphs 4 and 5, above) which encompass three incidents that occurred at the Parramatta Court complex on 24 July 2000, on an unidentified date in August 2000 and on 15 January 2001. In accordance with the provisions of s 97 of the Act the Tribunal has conducted a single inquiry into the two complaints as they arise out of substantially the same subject matter.

9 With the consent of the parties the `usual directions' concerning the filing of Points of Claim, Points of Defence and statements of witnesses were not made in this case. As the applicant was not legally represented, the judicial member of the Tribunal formed the view that it was unlikely to be productive in this case to direct the applicant to refine his claims of disability discrimination by preparing Points of Claim and to commit to writing the evidence in support of his claims by preparing a statement of the evidence which he wished to give. The respondent did not insist upon these documents being filed prior to the hearing. The outcome of proceeding directly to hearing, however, was that it was not completely clear which substantive provision of the Act the applicant relied upon and whether he claimed to have been the victim of direct or indirect discrimination, or both.

10 As the applicant was not legally represented, and as he did not appear to fully appreciate all of the matters that had to be proved in order to substantiate his complaints of disability discrimination, the Tribunal sought to extend as much assistance as possible to him without breaching its primary statutory obligation to be an impartial decision-maker. In undertaking this task the Tribunal received considerable assistance from counsel and the solicitor for the respondent who acted with commendable fairness throughout the case.

11 Whilst the Tribunal is directed by s 96 of the Act to conduct an inquiry into each complaint referred to it by the President of the Anti-Discrimination Board, the Tribunal does not have the capacity to gather evidence in support of a complaint. The Tribunal's function as an impartial decision-maker is likely to be imperilled if, in the absence of evidence, it constructs arguments in support of particular complaints. This latter point is of particular relevance in this case where, with appropriate evidence, it may have been possible to mount claims of direct and/or indirect discrimination. As the case law demonstrates (see e.g. Australian Iron and Steel Pty Ltd v Banovic [1989] HCA 56; (1987) 168 CLR 165 and Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349), indirect discrimination cases are particularly complex. Considerable legal skill is required to construct a case and to gather and present evidence in support of it. In these proceedings we have considered the arguments raised by Ms Eastman, but we have not sought to `fashion' a case for the applicant because there is insufficient evidence to do so and because the Tribunal's impartiality could be questioned were it to present the applicant's case for him. What we have done is consider any argument in support of the applicant's complaints which reasonably arises from the evidence presented to the Tribunal.

12 The proper identity of the respondent is an issue which arose for determination in this case. The applicant's first complaint to the President was lodged against "the Attorney General's Department as the party responsible for court administration". The second complaint does not nominate a respondent. It appears that "the Attorney General's Department", like the "Police Service of NSW", does not exist as a separate legal entity (see Commissioner of Police v The Estate of Edward John Russell [2002] NSWCA 272 at para 35, per Spigelman CJ). As Ms Eastman acknowledged, by virtue of the provisions of s 5 of the Crown Proceedings Act 1988, which deals with actions against the Crown, the proper respondent in these proceedings is the State of New South Wales.

The evidence

13 The only witness to give evidence in support of the complaints was the applicant himself. Mr Geoff Hiatt, the Clerk of Parramatta Court, and Mr Shane Flexman, the Chief Inspector of the Sheriff's Office at Parramatta Court, gave evidence for the respondent. Mr Flexman was not required for cross-examination.

14 The applicant, Mr Walker, stated that he had attended Parramatta Court on 24 July 2000 because he was the defendant in a malicious damage case. He had taken with him a stick or staff which he uses as a mobility aid. In July 1995 he suffered a ruptured disc for which he had received medical treatment. The stick or staff in question was approximately 1.65 metres long and 3 centimetres wide. It was made of Rattan cane and had a handgrip at one end and a rubber stopper at the other. The applicant described it as the "best stick" he had found to lean on and to assist with mobility.

15 The applicant stated that a Sheriff's officer, who he knew only as Gail, prevented him from entering the Parramatta Court complex and said, "You can't come in with that stick". After the applicant informed the Sheriff's officer that he was a disabled person and showed the officer the papers which related to his case at Parramatta Court that day, Mr Shane Flexman was called. Following a discussion with Mr Flexman the applicant was permitted to enter the Parramatta Court complex with his stick. The applicant was given a handwritten document signed by Ms Frances Breen, the Acting Registrar at Parramatta Court, which stated that he was permitted to use his stick within the court complex.

16 The applicant stated that he again attended the Parramatta Court complex at some time in August 2000. On this occasion he had with him a scooter which he also uses as a mobility aid. From the description given by the applicant we understood this to be a small aluminium scooter of the type regularly seen in the streets of Sydney over the past few years. On this occasion an unnamed Sheriff's officer informed the applicant that he could not enter the court complex with his scooter. Whilst the applicant did not give oral evidence about a second attempt to enter the Parramatta Court complex with his scooter, his second complaint to the President refers to an incident when he was denied access to the Parramatta Court complex on 15 January 2001 because of the scooter.

17 The only medical evidence presented in support of the applicant's complaints was the medical certificate prepared by Dr Janak Shah, dated 31 October 2001 (sic), which is referred to in paragraph 7, above. This certificate supported the applicant's evidence that he has a back injury and uses a stick or staff as a walking aid.

18 Mr Hiatt gave evidence that as the Clerk of the Court at Parramatta he has "overall responsibility for the management and security of the court complex". He stated that, as a practical matter, Sheriff's officers had the delegated responsibility at court buildings with perimeter security "to make decisions that will ensure the safety of all members of the public who access such courthouses". These decisions, Mr Hiatt stated, were usually made at Parramatta in consultation with him or the Assistant Clerk.

19 Mr Hiatt stated that he was not present when any of the three incidents concerning the applicant occurred. He did communicate with the applicant by telephone and by e-mail on a number of occasions in late 2000 and early 2001. In his written statement Mr Hiatt described his general approach to his dealings with the applicant:

My approach to dealing with the issue of Scott Walker's access to the Parramatta Court Complex, as with all members of the public, has always been to try to ensure that Mr Walker has been able to access the Court complex and its facilities whilst at the same time ensuring the safety of both Mr Walker and other users of the Court.

20 Mr Hiatt attached to his statement copies of e-mails which he and the applicant had exchanged on 28 August 2000. It appears that the forerunner to the e-mails was a telephone conversation between these two men concerning the initial decision by a Sheriff's officer on 24 July 2000 to deny the applicant access to the Parramatta Court complex with his stick. In his e-mail Mr Hiatt wrote: "As I understand the situation the sheriff initially denied you access to the complex because of the fact that you had in your possession a staff which was approximately 7 feet in length with a large head on the end of it". In this e-mail Mr Hiatt went on to apologise for any embarrassment and distress caused to the applicant. He stated that had he been present at the court on 24 July 2000 he would have instructed the Sheriff's officer to grant the applicant access to the Court complex with the stick.

21 In his e-mail in response to Mr Hiatt, the applicant wrote:

Over the years I have tried many appliances to assist my movement, this is the best stick...I am a good person and use my stick for good uses, as with all my tools and appliances. Your last e-mail when you said my stick was 7' with a head on it...bought images of decapitated peoples heads on sticks as happens in kalimantan (Borneo), that I have had first hand accounts of, and of raw hearts being dipped in chille sauce before being eaten while they are still warm, and of womans vagina's beng cut out while they are still alive...This recall was bought upon by your e-mail, which indicated..Head on a Stick not only do i feel discriminated against, Your e-mail has given me horrible thoughts...(sic)

22 Mr Hiatt responded to this e-mail on 29 August 2000:

I have now had the opportunity to view the walking stick in question and accept that the same is 1.65 metres in length with a small rubber stopper attached to the head. As I indicated yesterday I have no problems with you entering the court complex with this stick and have instructed the sheriff's accordingly. There is no set measure for a stick of this nature however after viewing the stick yesterday I believe that this is sufficient. A stick of any greater length I believe commences to border on a security risk. I say this not from the perspective of its potential use by you, but from the perspective of another person seizing the same and using it as a potential weapon.

In so far as the scooter is concerned I am prepared to allow you to enter the building with it however, you should bear in mind that it should not be used in areas of the complex where there is a liklihood of potential injury being caused to other users of the court. (sic)

23 Mr Flexman, the Chief Inspector of the Sheriff's Office at Parramatta Court, stated that he had been called to speak to the applicant at Parramatta Court in relation to the three incidents in question in this case. On each occasion, according to Mr Flexman, he used words to the following effect when faced with a request by the applicant to enter the court complex with his stick or scooter:

I understand that you don't wish to be treated differently to other people however you have to understand that we have an obligation to ensure the safety of the public entering the Courthouse. The Sheriffs Officers on duty consider your staff and your scooter to be possible dangerous or offensive weapons which may be taken from you whilst in the Court complex and possibly used by other members of the public to attack you or other members of the public.

I would be happy to let you enter the Courthouse if you leave your aides here with the Sheriff's Officers at the scanner. They can issue you with a receipt and you can collect the aides on the way out.

Alternatively I can offer you alternative aides such as standard walking stick which the court keeps to assist people attending the courthouse. (sic)

Conclusions

24 In every complaint of unlawful discrimination the Tribunal must determine whether the impugned behaviour of the respondent falls within one of the substantive provisions, or prohibitions, in the Act and, if it does, then determine whether the respondent's behaviour constituted unlawful discrimination as that concept is relevantly defined in the Act.

25 In this case the relevant substantive provision appears to be s49M which states:

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.

26 The respondent has denied that the impugned behaviour in this case falls within s 49M. It has submitted that gaining entrance to a court house is not the provision of a `service'. In support of this argument Ms Eastman pointed to the fact that the NSW Anti-Discrimination Act does not contain an equivalent provision to s 23 of the Commonwealth Disability Discrimination Act 1992 which renders it unlawful to discriminate against a person on the ground of disability in relation to access to premises. The respondent has not sought to rely upon the exception to liability found in s 49M(2).

27 We are not persuaded by the respondent's argument. The `service' in question in this case may be characterised as access to the Parramatta Court complex. The term "services" is defined, non-exhaustively, in s 4 of the Act. Paragraph (f) of that definition is of relevance in this case. It provides that "services" includes "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". It is difficult to see how access to the Parramatta Court complex could be said to fall outside this part of the definition of "services".

28 Further, in IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1, all of the members of the High Court concluded that a similar definition of "services" in the former West Australian equal opportunity statute should be read expansively. No reason has been advanced by the respondent why we should not take the same approach in this case.

29 Ms Eastman also argued that even were the Tribunal to find that the respondent provided a `service' to the applicant, and thus satisfied one of the requirements of s 49M of the Act, we should not find on the evidence in this case that the applicant was refused a `service', as required by s 49M(1)(a), because the applicant was ultimately admitted to the Parramatta Court complex on the three occasions in question after his individual circumstances were considered.

30 We are not persuaded by this argument. It is not in dispute that on each of the three occasions the applicant was initially denied admission to the Parramatta Court complex. He was refused the `service' of access to the Parramatta Court complex for a period of time which we find impossible to determine on the basis of the evidence before us. Thus, the complaints fall within a substantive provision of the Act, s49M(1)(a), which renders it unlawful for a person who provides a service to discriminate against a person on the ground of disability by refusing to provide that service.

31 It is also open to argument that, on one view of the evidence, the complaints fall within s 49M(1)(b) as well. That provision renders it unlawful to discriminate against a person on the ground of disability in the terms on which services are provided. It could be argued that the applicant was given conditional access only to the service provided by the respondent, with the condition being access to the Parramatta Court complex without his scooter.

32 The evidence concerning the applicant's attempts to enter the court complex with his scooter in August 2000 and 15 January 2001 is unclear. It is not disputed that on 24 July 2000 the applicant was ultimately permitted to enter the court complex with his stick and that he was subsequently granted on-going permission by Mr Hiatt to enter the court complex with the stick. The position concerning the scooter is not so clear. The applicant claims that he was not permitted to enter the court complex with his scooter on the two occasions in question and that he did not receive any on-going permission to use the scooter at the court. The evidence of Mr Flexman appears to support these claims. The evidence of Mr Hiatt, however, was that the applicant was given on-going permission to enter the court complex with his scooter subject to the proviso that "it should not be used in areas of the complex where there is likelihood of potential injury being caused to other users of the court". For the reasons which follow it is unnecessary to make findings about these apparent conflicts in the accounts of what took place in relation to the scooter.

33 The evidence does not persuade us that when the respondent refused to provide the applicant with a service, or when it may have provided him with a service subject to conditions or terms, it discriminated against the applicant on the ground of his disability.

34 Discrimination on the ground of disability is defined in s49B of the Act which 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) For the purposes of subsection (1)(a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.

(3) For the purposes of, but without limiting, this section, the fact that a person has a disability of or relating to vision, hearing or mobility has, or may be accompanied by, a dog which assists the person in respect of that disability, is taken to be a characteristic that appertains generally to people who have that disability, but nothing in this Act affects the liability of any such person for any injury, loss or damage caused by the dog.

(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.

35 Disability is defined in s 4 of the Act. Whilst we did not receive a great deal of evidence about the applicant's disability it was accepted by the respondent that he had sustained a back injury being a disc lesion. This condition falls within paragraph (c) of the statutory definition of `disability': "the malfunction, malformation or disfigurement of a part of the person's body".

36 The applicant did not present any argument concerning how the facts of this case fell within the complex statutory definition of discrimination on the ground of disability. He did not indicate whether the case was one of direct or indirect discrimination, or both. He did not present any evidence, or argument, concerning s 49D(2) which has the effect of enlarging the concept of direct discrimination by rendering it unlawful for a person to discriminate against another on the ground of a characteristic which appertains generally to, or is generally imputed to, a person with the same disability as the applicant. In effect the applicant's case was put on the basis that he had a disability which affected his mobility, he used aids being a stick and a scooter to assist with mobility, and he was not permitted to enter the Parramatta Court complex on three occasions when he attended with these aids. It was left to the Tribunal to determine how these allegations, if found to be proved, constituted unlawful discrimination on the ground of disability.

37 As we indicated in paragraphs 10 and 11 above, the Tribunal cannot fashion a case for the applicant without irrevocably impairing its function as an impartial decision-maker. What the Tribunal can do is respond to the submissions made by the respondent and determine whether, on their face, any findings of fact lead to the conclusion that the respondent unlawfully discriminated against the applicant on the ground of his disability.

38 In Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5, an Appeal Panel of the Tribunal formulated a question which the Tribunal should pose for itself in direct discrimination cases. In the circumstances of this case that question is: did the respondent on the ground of the applicant's disability (or a characteristic of that disability), treat the applicant less favourably than it treated or would have treated a person without that disability (or a characteristic of that disability) in the same circumstances, or in circumstances which were not materially different? There are two components to this question which were labelled by the Appeal Panel as differential treatment and causation.

39 For differential treatment to have occurred the treatment of the applicant by the respondent must have been objectively less favourable than the treatment which was actually afforded to a person without his disability, or which would have been afforded to a person without his disability, in the same or similar circumstances. This analysis involves a search for people often referred to as `comparators'.

40 If the Tribunal does not undertake the differential treatment analysis by relying upon the `characteristics extension' in s 49D(2) of the Act, a component of the question to be asked is how did the respondent treat, or how would have the respondent have treated, a person without a back injury who sought admission to the Parramatta Court complex in the same or similar circumstances as the applicant? Thus, in undertaking the comparison required by the statutory definition of direct discrimination on the ground of disability the particular disability of the applicant is removed from the equation. The `comparator' is either an actual or a hypothetical person who did not have a back injury. The requirement that a comparison be made of the treatment of the applicant and a `comparator' in the same or similar circumstances must mean, however, that the `comparator' be a real or hypothetical person, without a back injury, who attended the court complex with a stick or a scooter. The circumstances would not be the same, or similar, if the `comparator' did not have a stick or a scooter.

41 As there is no clear evidence in this case of how an actual `comparator' was treated, it is necessary to determine how a hypothetical `comparator' would have been treated. We are satisfied that any person, without a back injury, who had attended the Parramatta Court complex on the occasions in question with a stick or a scooter would have been denied entry, like the applicant, until inquiries revealed whether the person had a mobility need for the stick or scooter. The issue of causation does not arise for consideration for there was no less favourable treatment. Thus, absent any use of the `characteristics extension', our conclusion must be that there was no differential treatment of the applicant and, hence, no direct discrimination on the ground of disability.

42 The `characteristics extension' is used in the Act in relation to each of the grounds of discrimination. There are few cases that have dealt with these provisions. In some instances the Act expressly declares, or deems, something to be a characteristic of a ground of discrimination. For instance, s 24(1B), which is found within the definition of sex discrimination, provides that "the fact that a woman is or may become pregnant is a characteristic that appertains generally to woman". Section 49B(3) declares that a characteristic that appertains generally to a person who has a disability relating to vision, hearing or mobility is that the person has, or may be accompanied by, a dog which assists the person in relation to his/her disability. Despite the fact that the Act declares or deems certain matters to be a characteristic of a ground of discrimination, the Tribunal, in an individual case, may find a particular matter to be a characteristic of one of the grounds covered by the Act. How this is done is considered at paragraphs 44 and 45, below.

43 The significance of the `characteristics extension' is that it broadens the statutory definition of discrimination and, consequently, it affects the questions which the Tribunal must ask itself when undertaking both the differential treatment and the causation analysis in a direct discrimination case. The relevant characteristic is removed from the equation when comparing the treatment which was afforded to the applicant to the treatment which was, or would have been afforded to the `comparator'. Thus, had the applicant in this case, as a person with a disability related to mobility, been accompanied to the court complex with a dog, the comparison to have been undertaken when considering differential treatment would have been between the treatment afforded to the applicant when accompanied by a dog with the treatment which was, or would have been, afforded to another person without a dog.

44 Had the conclusion been that there was differential treatment, the issue of causation would then have arisen for consideration. The causation question must be framed carefully. The characteristic in its entirety must be a ground or reason for the impugned behaviour. In the example under consideration it would be necessary to consider whether being accompanied by a dog to assist with mobility was a ground or reason for the differential treatment. The ground or reason is not simply being accompanied by a dog because the characteristic of some disabilities that is protected by the s 49B(3) `characteristics extension' is the need for, or propensity of, some people with some disabilities to be accompanied by a dog to assist with mobility. Many people without any disability may be accompanied to public places by a dog which is a pet. It is not unlawful to discriminate against those people, in terms of access to a public place, because they are accompanied by a dog. It is not unlawful to discriminate against a person with a disability, which is unrelated to vision, hearing or mobility, who is accompanied by a dog which is a pet, because that person is accompanied by the dog.

45 In this case it is reasonable to assume that the applicant would wish to draw upon the example provided by s 49B(3) and argue that being accompanied by a stick or a scooter to assist with mobility is a characteristic which appertains generally to, or is generally imputed to, people with a disability such as his, namely a back injury. Whilst s 49B(2) of the Act permits the Tribunal to make such a finding, it is not one which is open to us on the facts of this case. As Ronalds points out in her text on discrimination law (C Ronalds, Discrimination Law and Practice, Sydney: Federation Press, 1998 at pp 28-29):

It is necessary for a complainant to be able to precisely identify and adequately describe the characteristic upon which they seek to rely. Also, they will need to produce some evidence in support of a claim that the characteristic is one that "appertains generally" or is "imputed" to the group which the complainant seeks to demonstrate membership. These characteristics must be of a general or broad nature and not just ones which can be attributed to the complainant personally...It is not necessary to establish that the identified characteristic exists in every case but...it must be established that it generally exists or operates.

46 There is no evidence which would permit us to conclude that a characteristic which appertains generally to, or is generally imputed to, people with a back injury is that they use a stick or a scooter as a mobility aid. Whilst the Tribunal is not bound by the rules of evidence, it must base its decisions upon logically probative evidence. Like courts, the Tribunal does not require proof of matters of common knowledge (see s 144 Evidence Act 1995 (NSW)). There are real limits, however, to what is common knowledge, or, to use the language of the common law, the facts about which we may take judicial notice. It is not possible for us to find, as a matter of common knowledge, that it is a characteristic which appertains generally to people with back injuries, or a characteristic which is generally imputed to them, that they use sticks or scooters as mobility aids.

47 For the reasons given in the foregoing paragraphs the `characteristics extension' to the statutory definition of direct discrimination on the ground of disability does not arise for consideration in this case. It is worthy of note that the NSW Anti-Discrimination Act does not contain an equivalent to s 7 of the Disability Discrimination Act 1992 (Cth) which deals expressly with the treatment of disabled people who are accompanied by palliative or therapeutic devices, or auxiliary aids. The NSW Act, as we have noted, makes express reference only to people who have disabilities relating to vision, hearing or mobility being accompanied by dogs to assist them.

48 Ms Eastman made brief reference to a possible indirect discrimination claim. We accept her submission that such a finding is not open on the evidence. In order to succeed in an indirect discrimination claim it is necessary for the applicant to establish four things:

(i) the respondent required the applicant to comply with a condition or requirement in order to access the service in question.

(ii) a substantially higher proportion of people who do not have the same disability as the applicant comply, or are able to comply, with that condition or requirement than do people who have the same disability as the applicant

(iii) the requirement or condition is not reasonable having regard to the circumstances of the case

(iv) the applicant does not comply, or is not able to comply, with the condition or requirement.

49 As we indicated earlier, the applicant did not make any submissions to us concerning indirect discrimination. Nevertheless, we must consider whether the evidence which has been presented could lead to a successful indirect discrimination claim. It is possible to argue that the respondent required the applicant to comply with a condition or requirement in order to have the service of access to the Parramatta Court complex. That condition or requirement may be framed as being that entry to the Parramatta Court complex was conditional upon a person not being accompanied by a stick or a scooter unless the Clerk of the Court, or his delegate, granted approval to enter with a stick or a scooter.

50 There is no evidence, however, of the second and third elements of an indirect discrimination claim. In order to succeed the applicant must prove that a substantially higher proportion of people who do not have his disability, than those who do have his disability, are able to comply with the requirement or condition and that the condition or requirement is not reasonable having regard to the circumstances of the case. There is insufficient evidence for us to make any conclusive findings about these matters and, more broadly, any claim of indirect discrimination on the ground of disability.

51 The respondent did not seek costs and there will be no order as to costs.

Decision and order

The complaints have not been substantiated. The Tribunal orders that the complaints be dismissed.