Sims v The Age Company Ltd [2000] VCAT 2307 (30 November 2000)

Last Updated: 2 March 2001

VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

ANTI-DISCRIMINATION LIST NO A290/2000

CATCHWORDS

Anti-Discrimination - Application by Respondent under s.75 of the Victorian Civil and Administrative Tribunal Act 1998 to dismiss or otherwise strike out complaint - indirect discrimination - provision of goods or services - services - Equal Opportunity Act 1995 ss.9 and 42

COMPLAINANT Christopher Sims

RESPONDENT The Age Company Ltd

BEFORE Mrs A Coghlan, Deputy President

WHERE HELD Melbourne

DATE OF HEARING 2 November 2000

DATE OF ORDER 23 November 2000

ORDER Complaint is struck out

A. COGHLAN

DEPUTY PRESIDENT

APPEARANCES

COMPLAINANT Mr G Webster, National Advocacy Officer, Blind Citizens

Australia

RESPONDENT Mr P Hanks QC of counsel instructed by Minter Ellison

IN THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

ANTI-DISCRIMINATION LIST

No A290/2000

Between

CHRISTOPHER SIMS Complainant

And

THE AGE COMPANY LTD Respondent

REASONS FOR ORDER

HISTORY OF APPLICATION

1. On 5 April 2000, Mr Sims, the complainant, lodged a complaint of discrimination with the Equal Opportunity Commission against The Age Company Ltd, the respondent in these proceedings.

2. His complaint comes about in the following way. Mr Sims has been totally blind since birth and his complaint relates to the publication of The Age newspaper. Mr Sims has been seeking employment and because of his blindness, is limited in the type of employment he can undertake. One area of employment open to him is in an area generally known as call centres. It turns out that The Age on at least two Saturdays has carried advertisements placed by an employment agency for vacancies in a call centre and that applications for the vacancy had closed at midday on the Saturday or on the next day and that Mr Sims had not become aware of them until he visited the Disability Employment Action Centre on the following Mondays. His complaint is one of indirect discrimination in the provision of services. The relief he seeks is an order from the Tribunal compelling the respondent to produce an audio cassette version of the sections of the respondent's newspaper that contain advertisements for employment vacancies, to be made available at the same time that the newspaper becomes available to sighted readers or purchasers of the newspaper.

3. By letter dated 14 June 2000, the Commission advised Mr Sims that it had decided to decline to entertain the complaint.

4. Following a request for the complaint to be referred to the Tribunal, it was received by the Tribunal on 7 July 2000.

5. On 28 August 2000, the complainant filed Particulars of Complaint. On 18 September 2000, the respondent lodged an application for an Order under s.75 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) summarily dismissing or striking out the proceeding on the grounds that the complaint is frivolous, vexatious, misconceived or lacking in substance and is otherwise an abuse of process.

6. On 20 September 2000, the Tribunal made directions for the filing of written submissions and for the hearing of the application on 2 November 2000.

7. In its written submissions, the respondent has set out the principles which it submits should guide the Tribunal in deciding an application under s.75 of the VCAT Act, and I agree that they state the relevant guiding principles. They are :

* It has been accepted that the decision of the Court of Appeal in State Electricity Commission v Rabel [1998] 1 VR 102 provides authoritative guidance on the approach to be adopted in deciding an application under section 75 of the VCAT Act (Norman v Australian Red Cross Society (1998) 14 VAR 243 at 247).

* An application under s 75 is similar to an application under Order 23.01 of the Rules of the Supreme Court (State Electricity Commission v Rabel [1998] 1 VR 102 at 109, 121/20-23).

* A complaint will be "misconceived" within s 75 when it does not disclose a cause of action (State Electricity Commission v Rabel [1999] 1 VR 102 at 109/8).

* For a complaint to be dismissed on the basis that it is "vexatious" or "lacking in substance", the complaint must be so clearly untenable that it cannot possibly succeed (State Electricity Commission v Rabel [1998] 1 VR 102 at 109/34-42; General Steel Industries Inc v Commissioners for Railways (NSW) (1964) 112 CLR 125 at 130).

* If the words "frivolous or vexatious" add anything, (State Electricity Commission v Rabel [1998] 1 VR 102 at 110/8-10, they indicate an abuse of process State Electricity Commission v Rabel [1998] 1 VR 102 at 108/51-109/2).

8. The respondent accepted that it carried the onus of satisfying the Tribunal that the complaint was "obviously hopeless, obviously unsustainable in fact or in law, or on no reasonable view can justify relief; or is bound to fail".

9. The respondent submitted that there were two reasons why the complaint answered that description, although in the hearing before me, it only sought to rely on the first. They were :

* The complaint is "obviously unsustainable" because, on any view of the relevant material, the respondent cannot be said to have imposed a requirement or condition as a condition of access to any services provided by the respondent.

* Even if the complaint were sustainable, the relief sought by the complainant could not, on any reasonable view, be justified and would be so oppressive that the complaint is properly described as vexatious.

10. The complainant submitted that the respondent's submissions, taken as a whole, at best establish only that the respondent has an arguable defence to the complaint and that the respondent's submission falls a long way short of the onus of satisfying the Tribunal that the complaint is "obviously unsustainable" such that it should not proceed to a hearing.

11. The elements of the complaint are contained in paragraphs 19 and 20 of the particulars. The pertinent parts of those paragraphs are as follows :

"19. The provision of information is a service the respondent provides to readers of its newspaper.

20. Provision of information in print format only .... imposes a requirement or condition on access to that information.

Further Particulars

The requirement is that a person is sighted and can read newsprint size type. The complainant does not say that there are no ways at all around this requirement. Access to the information in the respondent's newspaper can be had by i. having a sighted person read the newspaper to them; or ii. having access to an internet connected computer. However, these facilities have not been available to the complainant and are frequently not available to persons with the complainant's attributes (ie blindness, vision impairment or print handicap)".

12. The Equal Opportunity Act 1995 (the EO Act) prohibits direct and indirect discrimination on the basis of specified attributes in areas of activity set out in the EO Act, one of which is the provision of goods and services.

13. It is common ground that this is a complaint of indirect discrimination, that the attribute is Mr Sim's impairment, his total blindness, and that the paragraphs of the particulars above raise the possible operation of s.42 and s.9 of the EO Act.

14. Section 42 states :

"42. Discrimination in the provision of goods and services

(1) A person must not discriminate against another person -

(a) by refusing to provide goods or services to the other person;

(b) in the terms on which goods or services are provided to the other person;

(c) by subjecting the other person to any other detriment in connection with the provision of goods or services to him or her.

(2) Sub-section (1) applies whether or not the goods or services are provided for payment".

15. Section 9 states :

"9. Indirect discrimination

(1) Indirect discrimination occurs if a person imposes, or proposes to impose, a requirement, condition or practice -

(a) that someone with an attribute does not or cannot comply with; and

(b) that a higher proportion of people without that attribute, or with a different attribute, do or can comply with; and

(c) that is not reasonable.

(2) Whether a requirement, condition or practice is reasonable depends on all the relevant circumstances of the case, including -

(a) the consequences of failing to comply with the requirement, condition or practice;

(b) the cost of alternative requirements, conditions or practices;

(c) the financial circumstances of the person imposing, or proposing to impose, the requirement, condition or practice.

(3) In determining whether a person indirectly discriminates it is irrelevant whether or not that person is aware of the discrimination".

16. "Goods" is not defined in the Act and "services" is defined in s.4 as follows :

"services" includes, without limiting the generality of the word -

(a) access to and use of any place that members of the public are permitted to enter;

(b) banking services, the provision of loans or finance, financial accommodation, credit guarantees and insurance;

(c) provision of entertainment, recreation or refreshment;

(d) services connected with transportation or travel;

(e) services of any profession, trade or business, including those of an employment agent;

(f) services provided by a government department, public authority, State owned enterprise or municipal council -

but does not include education or training in an educational institution".

17. For the purposes of s.42, the particulars identify a service, describing it as "the provision of information". That does not readily fit any of the defined areas, but the definition says it includes those defined areas without limiting the generality of the word.

18. The particulars allege that by providing information "in print format only", the respondent imposes a requirement or condition on access to that information. The requirement identified is "that a person is sighted and can read newsprint size type".

19. The particulars addressed the elements of s.9(1)(a), (b) and (c) and allege that Mr Sims has been indirectly discriminated against in the terms of s.9.

20. The respondent submitted that the complaint will not succeed, unless :

* the respondent's publication of The Age newspaper can be characterised as the provision of "services";

* the services provided by the respondent can properly be characterised as "the provision of information"; and

* the publication of the newspaper in print format only can properly be characterised as the imposition of a requirement or condition of access to the services.

21. The respondent submitted that each of those issues depended upon the proper characterisation of the respondent's activity in publishing and distributing The Age. The submissions referred to the importance of identifying "with precision ... what service or services the alleged discriminator provides" (see judgment of Brennan CJ and McHugh J in IW v City of Perth (1997) 191 CLR 1 at 16-17).

22. The respondent submitted that the respondent's activity of publishing and distributing The Age must be characterised as the publication and sale of a newspaper. It can only be characterised in the broad terms proposed by the complainant (the provision of information) by ignoring the essential features of the activity and treating that which is an essential part of the activity, as if it were an optional incident of the activity.

23. The respondent relied on the affidavit of Ms Helen Louise Graham, Corporate Services Manager at The Age Company Ltd, filed in support of the application. Included in that affidavit is a brief history of The Age as a daily newspaper and a description of the processes by which it is produced. The respondent submitted that that evidence emphasised that as a newspaper it is medium-specific, consisting of type and images prepared and printed on paper in multiple copies and printed and distributed out of the respondent's printing facility at 250 Spencer Street, Melbourne.

24. I also mention here that, in her affidavit, Ms Graham referred to The Age's employment advertisements being provided electronically to the Royal Blind Society of New South Wales to enable it to provide a Job Phone service to visually impaired people. That service is supported financially by the Federal Government and is accessible in Victoria, although at STD rates. Having regard to the nature of this strike out application and to the view taken in regard to other aspects of this proceeding, it is inappropriate to attach any significance to this service for our present purposes.

25. The parties agreed that the central issue in considering this strike out application turned on how one characterises the service the respondent provides by publishing The Age newspaper. They agreed that that was a question of fact which the Tribunal at the hearing of this strike out application could decide on the material before it and on submissions made.

26. The respondent submitted that the publication of The Age is properly described as the provision of a "good" rather than a "service". However, it did not seek to press that argument but to explore it as a means of reinforcing why its characterisation of the "service" provided should be preferred to that of the complainant.

27. First, the respondent referred to the definition of "newspaper" in the Macquarie Dictionary. It defines it as :

"a printed publication issued at regular intervals, usu. Daily or weekly, and commonly containing news, comments, features, and advertisements".

28. The submissions then referred to the decision of the High Court in John Fairfax & Sons Ltd v State of New South Wales (1927) 39 CLR 139. That was a case about taxes on newspapers published and sold in the State and whether the tax the Act attempted to impose was an excise duty.

29. Discussing what was sold, Higgins J at p.144 observed :

"What is sold is not the news or the information, but the sheets of paper with the news on it".

30. It was submitted that The Age is a "good" which has essential features - that is, it consists of sheets of paper carrying visible impressions of words and images. Those features, it was submitted, are necessarily inherent in the goods. Thus, following the reasoning of Mason CJ and Gaudron J in Waters v Public Transport Corporation (1991) 173 CLR 349 at 361 that "the notion of `requirement or condition' would seem to involve something over and above that which is necessarily inherent in the goods or services provided", it could not be said that the provision of goods with those inherent features constitute "the terms on which goods are provided" within s.42(1)(b) of the EO Act and involve the imposition of a requirement or condition for the purposes of s.9(1) of the EO Act.

31. The respondent then submitted that assuming for the purposes of argument that the publication of The Age involved it in the provision of a service, that service must be the publication and distribution of a newspaper. It submitted that :

"The medium in which The Age is published and distributed (the print medium) is integral to the characterisation of any service provided by the respondent. Again, the print medium is an inherent feature of any service provided by the respondent.

The print medium (or, as paragraph 20 of the Particulars puts it, the `print format'), being necessarily inherent in the services, is not an aspect of `the terms on which ... services are provided' within s.42(1)(b) of the EO Act.

Nor does the provision of services with those inherent features involve the imposition of a requirement or condition within s9(1) of the EO Act.

To adopt the language of Brennan J in Waters v Public Transport Corporation (1991) 173 CLR 349 at 373, the relevant service, if any, being performed by the respondent is the publication and sale of a newspaper. It is a feature of that service that the newspaper is in the print medium. To provide the newspaper in that medium is not the imposition of a requirement or condition.

The respondent's position, that the form in which any service involved in The Age is provided is part of the service and not a requirement or condition on which the service is provided, is also supported by the reasoning of Dawson and Toohey JJ in Waters v Public Transport Corporation.

Their Honours accepted that `for something to be a requirement or condition in relation to a matter it must be separate from that matter'.

However, Dawson and Toohey JJ resisted the submission made in that case (that the withdrawal of conductors from trams did not impose a requirement or condition on access to the service of public transport) because the Corporation should not be allowed to define the service so as to incorporate as part of the service what would otherwise be a requirement or condition of the provision of that service - `where the service previously provided by it was continued, but with alterations which might be characterised as the imposition of different requirements'.

Here, the respondent and its predecessors in title have published The Age as a newspaper for 146 years. The medium in which The Age is published (printed on paper in multiple copies) has remained unchanged for the whole of that time. The medium is integral to the publication and distribution of The Age. In the language of Dawson and Toohey JJ, the medium is not `separate from' the publication and distribution of The Age; and, for that reason, the medium cannot be a requirement or condition in relation to the publication and distribution of The Age.

.....

Because the medium in which the particular service is provided is integral to that service, the medium cannot also be described as part of `the terms' on which the service is provided; nor can that medium be described as a requirement or condition imposed by the respondent".

32. The complainant's submissions on the characterisation of the service the respondent provides, being "the provision of information", are contained in paragraphs 10 and 11 of the submissions. They are as follows :

"10. The respondent states that `the respondent's activity of publishing and distributing The Age must be characterised as the publication and sale of a newspaper. It can only be characterised in the broad terms proposed by the complainant (the provision of information) by ignoring the essential features of the activity and treating that which is an essential part of the activity as if it were an optional incident of the activity'.

11. The complainant submits that the respondent emphasises the production process of the print format while itself treating the information gathering features of the process - the work of the journalists, editors, advertising sales representatives and call centre staff taking classified advertisements - as if it were an optional incident of its activity. Any characterisation of an activity will ignore some features and highlight others while remaining valid for there (sic) particular purpose of the characterisation. To characterise the respondent's activity as publication and sale as (sic) a newspaper does not contradict a characterisation of the same activity as the provision of information. Both characterisations are perfectly valid. And, it is submitted, if both characterisations are valid, then it is perfectly appropriate for the complainant to rely on the broader characterisation. Legal policy and the objectives of the EO Act would suggest that the broader characterisation should be preferred for the purposes of the present complaint, and no legal authority is pointed to by the respondent which would effectively suggest otherwise".

33. The complainant further submitted that the respondent's submission in relation to the characterisation of its activity in producing The Age, and in relation to whether or not it imposes a condition or requirement, is at odds with

(i) the objectives of the EO Act

(ii) cases such as

Maguire v Sydney Organising Committee for the Olympic Games (unreported decision of Human Rights and Equal Opportunity Commission 18 October 1999)

Maguire v Sydney Organising Committee for the Olympic Games (unreported decision of Human Rights and Equal Opportunity Commission 24 August 2000)

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

34. The complainant's own particulars and submissions which refer to a service to readers highlight the difficulty as I see it, of characterising the respondent's service as broadly as "the provision of information", without taking account of the medium in which such information is provided. For example :

* the respondent publishes a daily newspaper (see paragraph 5 of the particulars)

* the respondent's newspaper is a vehicle for dissemination of a broad range of information to its readers (see paragraph 16 of the particulars)

* it is a service the respondent provides to readers of its newspaper (see paragraph 19 of the particulars)

* the respondent's readers purchase the product ... to obtain the information the words and images convey (see paragraph 12 of the submissions)

* in (the production of a daily newspaper) it provides its readers with a broad range of information (see paragraph 15 of the submissions).

35. In my view, those references reinforce that it is information provided to readers of print and that the print medium is an essential feature in the newspaper's publication and distribution.

36. I agree with the respondent's submission that the characterisation pressed by the complainant ignores the essential feature of the activity, that of publishing a newspaper. It fails to take account of the fact that The Age publishes and prints a newspaper and that the print medium it is provided in, is integral and essential to its characterisation such that the print medium is an inherent feature of the particular service. I note Higgins J's description of what was sold; it "is not the news or the information but the sheets of paper with the news on it", as support for accepting the respondent's submission.

37. The complainant submitted that the respondent emphasised the production process and treated the information gathering features as an optional activity. As I understand the respondent's argument, it acknowledged all the activities involved in producing the paper but maintained that only looking at those and not that it was produced in the "print format" was to ignore an essential feature. The activities referred to by the complainant, the work of journalists, editors etc, are services ancillary to publishing the newspaper and do not change the characterisation of the service.

38. On the evidence before me and the submissions made, I am satisfied that the proper characterisation of the respondent's service is the publication and distribution of a newspaper. I accepted the evidence of Ms Graham relating to the production and distribution of The Age. Mr Webster did not seek to challenge any part of the affidavit relating to the production and distribution of The Age. I am satisfied that the medium in which The Age is published and distributed (the print medium) is integral to the characterisation of any service provided by the respondent for the purposes of the Act, and that the print medium is an inherent feature of any service provided by the respondent. I accept this submission made by the respondent.

39. Having found that the characterisation of the service is the publication and distribution of a newspaper, s.9 of the EO Act directs one to whether there has been the imposition of a requirement, condition or practice. As Mason CJ and Gaudron J observed in Waters case at p.361 :

"The notion of `requirement or condition' would seem to involve something over and above that which is necessarily inherent in the goods or services provided".

40. Where the requirement relied on is that a person is sighted and can read newsprint, and I have found that the proper characterisation of the service is the publication and distribution of a newspaper and that it is an essential feature of that service and integral to that service that the newspaper is in the print medium, I agree with the thrust of the respondent's submissions that those features being essential and integral to the service do not constitute "the terms on which the goods ... are provided" within s.42(1(b) of the EO Act. It follows, and I agree with the respondent's submissions that the print medium, being necessarily inherent in the services, is not an aspect of "the terms on which ... services are provided" within s.42(1)(b) of the Act.

41. I also agree with the respondent's submissions that the form in which the service is provided is part of the service and not a requirement or condition on which it is provided. That view is supported by the comments of Dawson and Toohey JJ in Waters case at 394 :

"It is true that for something to be a requirement or condition in relation to a matter it must be separate from that matter".

42. Where the service is the publication and sale of a newspaper and the evidence of Ms Graham, which I accepted, is clear that the respondent and its predecessors in title have published The Age as a newspaper for 146 years and the medium in which it is published (on paper and in multiple copies), has remained unchanged for the whole of that time, and the medium is integral to publication and distribution, it is difficult to see that the medium could be separate from the publication and distribution of The Age, such that it could be said it is a requirement or condition in relation to the publication and distribution of The Age, which contemplates that it will be something separate from that medium.

43. Where the requirement is that users of the service be sighted and able to read the newspaper, it cannot be said that that requirement is something separate from the service such as to fall within the scope of s.9 which the cases indicate contemplates that for a requirement to be imposed, it must be separate from that.

44. Having found that the proper characterisation of the respondent's services is such that it cannot be said to be imposing a condition or requirement, there is nothing inconsistent with the objectives of the EO Act, as the complainant alleges.

45. Other cases were drawn to my attention by the complainant. Both Maguire cases concerned complaints of unlawful discrimination made under the Disability Discrimination Act 1992 (Cth) against the Sydney Organising Committee for the Olympic Games (SOCOG). Mr Maguire, who is blind, alleged unlawful discrimination in the first case because of SOCOG's failure to provide the Ticket Book for seating at the Olympics in braille and in the second case because of its failure to provide a web site which was accessible to him, given his blindness. A perusal of those cases reveals that they may well have provided the model for the manner in which Mr Sims' complaint was framed. Although the Commissioner decided the first case as a complaint of direct discrimination, there were references in his reasons to "services" as defined in the Commonwealth Act. "Services" are defined in s.4 to include "services relating to entertainment, recreation or refreshment". The Commissioner observed that that definition was drawn in a form which is inclusive, noting that it does not only include the provision of, for example, "entertainment" as a service but also services "relating to" entertainment. The Commissioner went on to find that the publication of the ticket book and the extensive information which it necessarily contained was a service "relating to" the entertainment to be provided by the Games spectacle and that SOCOG was providing "services" of essential relevance to the "entertainment" provided by the Games.

46. In the second case, the Commissioner found the provision of information via the web site was a service relating to the entertainment the respondent was providing to the world in the course of the Sydney Olympic Games, "the largest and most significant entertainment or recreation event in the history of the country".

47. Both those cases concerned "services relating to entertainment" and were decided on their facts. In those cases, the Ticket Book and web site were incidental to the service, whereas in this case involving a newspaper, the provision of sheets of paper with type and images printed on them is the very essence of the service, not an incidental or related feature.

48. Again, the Telstra case, considered the nature of the service provided. Sir Ronald Wilson found that the services provided by the respondent are the provision of access to a telecommunications service. He made that finding having regard to the legislative objectives of the Telecommunications Act 1992 (Cth) and referring to the reference to "services relating to telecommunications" in the s.4 definition of "services" in the Disability Discrimination Act 1992 (Cth).

49. In contrast, the respondent in these proceedings does not operate under legislative charter.

50. I do not accept the complainant's submission that those cases are at odds with the respondent's approach to the characterisation of its activity.

51. I was referred by the respondent to a decision of the Anti-Discrimination Tribunal in Jones v Herald & Weekly Times Ltd (unreported, 1 April 1998).

52. In that case, the Tribunal identified the publisher of a newspaper as providing a service for the purposes of the EO Act - namely the "preparation and printing of newspapers and their distribution to readers, and the advertising in those newspapers (for the benefit of readers) of competitions". As I understand it, the publisher did not dispute that it provided a service within the meaning of the EO Act. However, the complaint related to the terms on which the publisher operated a particular competition which had only one method of entry and not to the publication of the newspaper itself. In that way, the decision is of little assistance in the present case except in so far as it describes the service as the preparation and printing of newspapers and their distribution to readers, which supports what I have found is the service in this case.

53. For the sake of completeness, I note that if the publication and distribution of The Age is properly characterised as a "good" (or as both a "service" and a "good") then my conclusion would be the same.

54. In my view, the complaint is obviously unsustainable because it cannot be said that the respondent has imposed a requirement or condition as a condition of access to the service provided by the respondent. The complaint should be struck out.

A COGHLAN

DEPUTY PRESIDENT