Grounds 1.1-1.5
28 A principal component of these grounds of appeal is the contention that the primary judge mischaracterised Mrs King's case at [243] of the reasons and was thereby led into error by assessing the question of hardship by reference to the worst case scenario. According to this contention, a "proper application of the test should have resulted in the primary judge considering the issue of unjustifiable hardship…only by reference to the impact of one extra passenger on Flight JQ 769".
29 The problem with this contention, and the associated appeal grounds (in fact, grounds 1.1 and 1.2 despite Jetstar's objection being confined to ground 1.1), is that it is apparent that the case was conducted before the primary judge on precisely the basis identified at [243] of the reasons. The focus of Mrs King's case was Jetstar's two wheelchair practice. Mrs King complained she had been discriminated against on the basis of the practice (as the primary judge found she had been) and sought an order that the practice no longer be implemented. Jetstar, in response, unsuccessfully argued that Mrs King's approach was too broad and had to be confined to the circumstances relating to the particular flight which Mrs King was not permitted to book by reason of the two wheelchair practice. Far from being a mischaracterisation of the case, the primary judge's observation at [243] constitutes his rejection of Jetstar's argument and acceptance of Mrs King's argument that she was discriminated against by reason of the two wheelchair practice which Jetstar should be ordered to abandon. Jetstar, for its part, defended its two wheelchair practice as an across-the-board practice on A320 aircraft on the basis of the evidence of Mr Lobascher, Mr Del Pra and Mr Moore. The fact that the primary judge accepted much of that evidence, albeit with modifications, cannot now be used in the appeal to support the submission that he mischaracterised the case.
30 As Jetstar submitted, Mrs King challenged the two wheelchair practice as applied by Jetstar. While Jetstar unsuccessfully argued she was not entitled to do so, it met the case that was put for Mrs King by defending the alleged discrimination as not unlawful because the provision of its services without the two wheelchair practice would impose unjustifiable hardship on it. We accept Jetstar's submission that if the case for Mrs King had not concerned the two wheelchair practice as a practice applying to all Jetstar A320 flights the evidentiary contest from Jetstar's perspective is likely to have been different. Jetstar's evidence need not have traversed its operations as a whole but, rather, would have concerned the circumstances of the particular flight. As the evidence stood before the primary judge, he inferred from the general operational evidence that delay on the particular flight would have been likely and likely also to result in a domino effect throughout the day (at [260]), but there was no evidence about such matters as, for example, whether the flight took place or was cancelled or took off on time or was delayed for other reasons which Jetstar might have been expected to call had the case for Mrs King been put on the basis now alleged.
31 We do not accept the submission for Mrs King that the scope of evidence of Jetstar's defence was solely a matter for Jetstar and unconnected to the way in which the case for Mrs King was put. It is true that Jetstar had the onus of establishing unjustifiable hardship within the meaning of s 24(2) of the Disability Discrimination Act. However, and as the primary judge noted at [242] of the reasons, s 24(2) "must be addressed subsequent to the question of discrimination because the circumstances in which it applied were if the provision of the services would impose unjustifiable hardship on the person who provided the services". In other words, given Mrs King's case, s 24(2) asked if there would have been unjustifiable hardship imposed on Jetstar if Mrs King had not been refused her booking on the flight because of the two wheelchair practice. As the primary judge said at [243], the hypothesis of Mrs King's case was that there was no two wheelchair practice, with the inevitable consequence that it must be assumed there would have been no restriction on the number of passengers on each A320 flight who required wheelchair assistance.
32 For these reasons the case as sought to be put for Mrs King in the appeal is inconsistent with that put to the primary judge and, if it had been put, was likely to have resulted in Jetstar adducing other evidence. This should not be permitted in the appeal consistent with the principles discussed in Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438 and Coulton v Holcombe (1986) 162 CLR 1 at 7-8. The principle that a party is bound by the conduct of his or her case, and the policy considerations which underlie it, apply with particular force in the present context. The issue of unjustifiable hardship is to be determined having regard to all of the relevant circumstances and, as the terms of s 11 make apparent, involves evaluative and impressionistic questions. The difficulty for Mrs King's case on appeal is that it effectively requires the appeal court to reconsider the question of unjustifiable hardship in a different context from that presented below and on the basis of, at best, an incomplete evidentiary matrix.
33 For these reasons leave should not be granted to Mrs King to raise the new issue in ground 1.1 of the proposed amended notice of appeal. Although not articulated by Jetstar it is apparent that proposed ground 1.2 is related to ground 1.1 and also inconsistent with the case put for Mrs King below. Accordingly, leave should be refused in respect of both of these grounds.
34 Insofar as the submissions for Mrs King dealt with other issues by reference to these grounds a number of observations may be made. It was put for Mrs King that ground 1 of the appeal involved the central proposition that "public transport providers that have established rigid inflexible and streamlined processes in pursuit of profit margins without any regard for the disabled community and their obligations under the [Disability Discrimination Act] cannot retrospectively contend that being forced to relax those processes would cause unjustifiable hardship". The proposition refers to the fact that there was no evidence explaining the origin of Jetstar's two wheelchair practice for the A320 plane. The problem with the proposition is that it seeks to transform a question of fact in a particular case, whether providing the service to the person without discrimination would impose unjustifiable hardship on the person who provides the service, into a question of principle. The fact that Jetstar did not adduce evidence explaining the origin of the two wheelchair practice for the A320 plane was but one matter to be weighed in the balance. It could not of itself lead to a determination against Jetstar on the question of unjustifiable hardship. There was other evidence before the primary judge that also had to be assessed. As noted, this included:
(a) the two wheelchair practice applied only to the A320 and A321 planes which had a single aisle and not to the A330 wide body aircraft which had two aisles and a 70 minute turnaround time (at [134] and [155]);
(b) Jetstar's business model depended on high aircraft utilisation which involved tight aircraft turnaround times reflected in the PTS for each aircraft (at [132] and [150]);
(c) for the A320 a turnaround time of 30 minutes was allocated which was very limited (at [133]);
(d) the two wheelchair practice meant that Jetstar could be dealing with two customers leaving and two customers boarding an A320 plane during the turnaround time of 30 minutes (at [136] and [213]);
(e) Jetstar closely monitored all flight delays and their causes which disclosed that a substantial number of delays were caused by passengers requiring wheelchair assistance (at [144]);
(f) delays on one flight caused delays throughout the day as a result of Jetstar's high aircraft utilisation, airport restrictions and crew regulations (at [157]);
(g) if Jetstar did not have the two wheelchair practice in place so that there was no limit on the number of passengers requiring wheelchair assistance the only realistic option was to increase the 30 minute turnaround time (at [163]);
(h) increasing the turnaround time for the A320 by 5 or 10 minutes would result in the cancellation of 10 and 20 domestic flights respectively per day and have a substantial impact on profitability; and
(i) as an annualised average across Jetstar's operations as a whole 0.477 passengers per flight required wheelchair assistance (at [137]).
35 In the face of this evidence, the submission for Mrs King that the evidence constituted "an attempt at ex post facto justification of a limit that was set arbitrarily, that is, without study, planning, forethought or articulated reason" cannot be accepted. The lack of study, planning, forethought or an articulated reason for a limit may be relevant to the assessment of other evidence about the effects of the provision of the service without the discrimination as found, a matter the primary judge recognised in dealing with the evidence of Mr Lobascher, Mr Dal Pra and Mr Moore. Depending on the facts of the particular case, it may suggest, for example, that other evidence should be treated with caution or carry less weight than might otherwise be the case. But the fact that a limit has been set without evidence of any particular study or planning is not necessarily determinative of the question of unjustifiable hardship. Jetstar's evidence was not an attempt at ex post facto justification of the two wheelchair practice. It was adduced as relevant to the issue of unjustifiable hardship if, as Mrs King, contended, Jetstar should be ordered to cease to enforce the two wheelchair practice.
36 The primary judge was mindful of the fact that the evidence Jetstar adduced did not address the origin of the two wheelchair practice, only that it had been part of Jetstar's operations from the outset (at [148]). The primary judge was also mindful of the fact that Jetstar's evidence included a study of the time taken to provide assistance to passengers in wheelchairs and the effects of abandoning the two wheelchair practice after the event (treating the event as including both adoption of the two wheelchair practice or the act of discrimination by Jetstar against Mrs King in 2008). This is clear from the observations of the primary judge at [78], [79], [92], [93], [94], [137], [138], [144], [145], [146], [164], [173], [176] and [177]. Some examples from these observations demonstrating the primary judge's appreciation of the temporal issue will suffice. These are set out below:
[92] Mrs King criticised Jetstar's evidence in a number of respects. She submitted that there was no probative value to Mr Lobascher's time and motion studies: his evidence was at best vague, imprecise and mere speculation. In particular, it was submitted, no reliance could be placed on Mr Lobascher's time and motion study because he was a trained lawyer and Mr Lobascher had no knowledge or experience of operations in August 2008.
[93] I do not accept Mrs King's criticisms of Mr Lobascher's study. In particular I find that, within the expressed limits of the study, there is no reason to doubt the accuracy of Mr Lobascher's estimates either by virtue of his qualifications or otherwise: the study was a simple one. The study also provided the basis for an inference that similar estimates applied in August and September 2008 and I so infer.
[94] As to the timing of the study, the fact that this study was not done at the time the limit of two passengers requiring wheelchair assistance was introduced, when Jetstar began operations, or in August 2008 at the time of the alleged discriminatory action does not disqualify it from consideration or make it irrelevant. That the study was done for the purpose of these proceedings means that it must be assessed with particular care.
[146] In any event the figures were for not for the financial year in which the flight Mrs King wished to take occurred. I do infer that at the relevant time there were sometimes flight delays caused by passengers requiring wheelchair assistance even though there was a limit of 2 such passengers boarding an A320 aircraft but I do not do so on the basis of the numbers in the electronic database which was in evidence.
[173] I conclude that an estimate of 20 sectors lost per day on the basis of an additional 5 minute increase in turn time was a reasonable and conservative estimate per 50 aircraft. There was no estimate on the operational approach specifically directed to mid-2008 when Jetstar had about 30 narrow body aircraft, being 28 A320 aircraft and two A321 aircraft. As I have said, on the calculated approach the figure for 35 aircraft was a loss of approximately 14 sectors. I infer that at least a similar figure would have applied on the operational approach.
[177] While I accept Mr Moore's calculations, they did not provide a sound basis on which I could find with any accuracy an estimated profit impact for the relevant financial year and in relation to a loss of sectors of approximately 14 per day. I do however find that there would have been an adverse profit impact and that it would have been substantial. I also accept that expressed as a percentage of the total revenue for the relevant financial year the number would have been a low single figure and expressed as a percentage figure for total domestic revenue for the relevant financial year the number would have been larger but still a single figure.
37 The reasons for judgment also disclose the care the primary judge took with the evidence as a whole. The primary judge was mindful of the character of the evidence as involving estimates (see, in particular, at [140]-[146], [170] and [177]) which had to be evaluated carefully to determine the nature and extent of the factual findings for which the evidence provided persuasive rational support.
38 For the same reasons the submission for Mrs King that the primary judge failed to recognise the "absence of any evidence of contended hardship suffered by [Jetstar] at the time of the discriminatory conduct" cannot be accepted. The evidence was that the two wheelchair practice had been part of Jetstar's operations since the outset in 2004. Although there were differences in the composition of Jetstar's fleet over time which the primary judge recognised at [173], it is apparent that Jetstar's operational practices did not materially change after 2004. So much is clear from the evidence of Mr Dal Pra which the primary judge summarised at [148]-[173]. It is also apparent that the primary judge found the evidence to be relevant to the position as at 2008 (at [93], [173] and [177]). In other words, there was evidence of the contended hardship suffered by Jetstar at the time of the discriminatory conduct. The evidence involved a combination of the continuity of Jetstar's operational practices since 2004 and of Mr Lobascher, Mr Dal Pra and Mr Moore.
39 The submissions also alleged that the primary judge erred by giving insufficient weight, if any, to the impact of the two wheelchair practice on people with disabilities and to the nature of the detriment to people with disabilities seeking access to public transport. This submission also cannot be accepted. The primary judge returned to the terms of s 11 at [245], which directed consideration of the nature of the benefit likely to accrue to Mrs King; the nature of the detriment likely to be suffered by Mrs King; the nature of the benefit likely to accrue to Jetstar; the nature of the detriment likely to be suffered by Jetstar; the effect of the disability of Mrs King; the financial circumstances and the estimated amount of expenditure required to be made by Jetstar, before dealing with the competing submissions about the evidence. The matters traversed included the difficulty caused to Mrs King (at [247]), the alleged inadequacies of Jetstar's evidence (at [248]), the alleged lack of other evidence of adverse impacts caused by the two wheelchair practice (at [250]), the alleged detriment to all passengers by having fewer Jetstar flights (at [251]), the actual demand for wheelchair assistance (at [253]), and the alleged impacts of abandoning the two wheelchair practice on Jetstar's business model (at [254]). The primary judge's conclusions: - (i) at [255] that "the nature of the benefit likely to accrue from there having been no limit on the number of passengers requiring wheelchair assistance on an A320 was, on the evidence, real but limited", (ii) at [256] that the case did not involve "an absolute refusal of the service of travel and there is therefore no relevant analogy with the impossibility of access to a building without a ramp or a school without physical alterations being made to it", (iii) at [257] that all passengers would suffer detriment by decreased flight and route options by Jetstar, and (iv) at [260] that a delay would have affected all passengers on a flight and, in light of the evidence as to the effect of the delay in one flight on later flights of that aircraft on that day, a delay would also have been likely to affect passengers on other flights on that aircraft on that day, were the product of a careful weighing of all of the relevant evidence. In these circumstances, Jetstar's submission that this Court should be "slow to overturn the factual findings in the absence of legal error or obvious errors in the assessment of evidence" is persuasive.
40 Another contention for Mrs King was that the primary judge failed to take into account the remedial and beneficial objects of the Disability Discrimination Act. This submission appeared to be based on the lack of reference to those objects in the summary of Mrs King's submissions at [248] of the reasons and the resolution of the issue of unjustifiable hardship thereafter. The submission founders in the face of the reasons. The primary judge identified the objects of the Disability Discrimination Act at [4]. At [12]-[14] the primary judge dealt with the principles of interpretation applying to legislation such as the Disability Discrimination Act including that such remedial and beneficial legislation should be given a "fair, large and liberal interpretation" (at [12] citing AB v State of Western Australia (2011) 244 CLR 390; [2011] HCA 42 at [24] and the cases there noted). The primary judge revisited that concept at [121] in the context of the identification of the relevant service. When dealing with unjustifiable hardship the primary judge also reminded himself at [245]-[246] that, as provided for in s 11 of the Disability Discrimination Act, the nominated matters and, indeed, all relevant circumstances must be considered. In providing a summary of Mrs King's contentions at [248] the primary judge was not bound to repeat again the objects of the Disability Discrimination Act.
41 Consideration of the reasons as a whole also undermines the contention for Mrs King that the primary judge failed to consider other matters in weighing the nature and extent of the discriminatory effect of the two wheelchair practice. First, the primary judge noted that there was no specific evidence of the effect of other passengers, such as families with children, on flight turnaround times and explained that he thus gave that issue no weight (at [208] and [226]). Having decided that for the purpose of one of Mrs King's arguments, the position remained the same for the balance of her case including unjustifiable hardship. There was no failure to consider that matter. Second, the primary judge considered the benefits to people with disabilities and their families from abandonment of the two wheelchair practice (at [208], [227] and [250]). It is apparent that the primary judge considered the detriment to all passengers from abandonment of the two wheelchair practice (including detriment to disabled persons and their families by reason of decreased flights and route options) outweighed the identified benefits to disabled persons and their families, particularly given that there was no evidence in relation to benefits accruing to any other person (at [255] and [259]-[263]). The primary judge considered and weighed in the balance the detriment to Mrs King from enforcement of the two wheelchair practice, as well as to disabled persons and their families (at [208], [222], [223], [247] and [255]).
42 Nor can it be accepted, as Mrs King submitted, that the primary judge erred by giving excessive weight to the fact that Mrs King had not been denied travel generally but had been denied access to one flight only. The primary judge was entitled to place substantial weight on this factor in weighing up the competing considerations which inform the analysis of unjustifiable hardship. As the primary judge noted Mrs King had travelled on Jetstar on 18 or 19 other occasions without difficulty in respect of her requirement for wheelchair assistance (at [212]). Jetstar offered to place Mrs King on an alternative flight on the same day with wheelchair assistance (at [48]). In these circumstances the primary judge's conclusion (at [256]) that there was not an absolute refusal of service and that this was relevant to the balancing exercise was correct.
43 Mrs King contended that there was a logical flaw in the primary judge's conclusion that in September 2008 the average demand for wheelchair assistance was less than 0.5 passengers per flight but that in order to accommodate an unrestricted number of passengers requiring such assistance Jetstar's only option was to increase turnaround times. No logical flaw exists. The primary judge accepted that the average level of demand was 0.477 passengers per flight (at [137]) and noted at [257] that "on the evidence there would be an additional detriment from a reduction in flights in circumstances where it has not been shown that there is any imbalance between the average level of demand and a maximum of two passengers requiring wheelchair assistance per flight". The figure of 0.477 passengers per flight is an annualised average across all operations, including aircraft not subject to the two wheelchair practice. It does not disclose the number of wheelchair passengers on any particular flight requiring wheelchair assistance. In terms of the A320 and A321 aircraft, which are subject to the two wheelchair practice, there was evidence from Mr Dal Pra, Jetstar's chief operating officer, that accepting an unlimited number of passengers requiring wheelchair assistance on those flights would mean that Jetstar's only realistic option would be to increase the turnaround times (at [163]). This was not illogical or mere assertion. As the evidence disclosed, Jetstar's system involved the same turnaround time of 30 minutes for these aircraft. Enforcement of the two wheelchair practice had not eliminated delays caused by persons requiring wheelchair assistance, unsurprisingly given the evidence about the time taken to provide such assistance compared to the overall period of 30 minutes available for all required tasks in the turnaround time to be completed. Without the two wheelchair practice Jetstar would have to accept, on any flight, an unlimited number of persons requiring wheelchair assistance. Jetstar could not control the level of demand for such assistance on any particular flight. In order to have a manageable system for turnaround times Jetstar would have to increase the times across the board for those aircraft to ensure it could provide the services. The fact that on average less than 0.5 passengers per flight required wheelchair assistance showed only that, insofar as averages are relevant, Jetstar's two wheelchair practice accommodated average demand.
44 Having regard to these matters, it cannot be accepted that the primary judge's finding of unjustifiable hardship was not open. The finding reflected an appropriate weighing of the evidence in the light of the objects in s 3 of the Disability Discrimination Act. Those objects, in terms, contemplated that a conclusion of unlawful discrimination would involve consideration of possibilities and practicalities. Hence, the aim is to eliminate discrimination "as far as possible" and to ensure equal rights "as far as practicable". Section 11 encompassed not only benefit and detriment to the disabled person but also benefit and detriment to others including the person providing the goods and services. In concluding that the discrimination concerned was not unlawful because Jetstar had made out the defence of unjustifiable hardship under s 24(2) the primary judge was entitled to give weight to the actual service Jetstar was providing, being access to a particular Jetstar flight. A Jetstar flight is a flight on a low-cost or budget carrier where the full range of services available on another airline, such as Qantas, are not available. As the primary judge noted, a substantial consideration in Mrs King's decision to book with Jetstar was cost (at [49]). Jetstar's business was providing low-cost travel (at [149]). To provide low-cost travel Jetstar's operations involved high aircraft use necessitating short turnaround times and other matters which might be perceived as potential inconveniences by passengers such as using stand-off bays rather than aerobridges, limited check-in staff, closing flights 30 minutes before departure, and unbundling other services from the flight. Section 24(2) operates on the provision of the service in question and not some other service. Accordingly, the primary judge was not in error in identifying the service in question as access to flight JQ 769 from Adelaide to Brisbane on 23 September 2008. JQ 769 is a Jetstar flight and thus, by definition, involves a flight in accordance with Jetstar's business and operational practices. The issue under s 24(2) is whether providing that service without the act of discrimination would impose unjustifiable hardship on Jetstar. This is not to say that a person may simply disregard the Disability Discrimination Act by creating a budget or low-cost service. The nature of the service does not answer the statutory question. The extent, if any, of hardship and whether, having regard to the s 11 factors, any such hardship was unjustifiable in all the circumstances is determinative. The primary judge correctly applied the statutory test.