KRYSIAK -v- PUBLIC TRANSPORT AUTHORITY [2016] WASC 258 (10 August 2016)

(b) the nominal respondent not to be permitted to file or submit any further notices, motions, or other documentation in this matter until the determination by this Honourable Court of the appellant's application for an interim order for the matter to proceed ex parte, it being taken that the respondent is de facto not currently a party as it has defaulted on filing its notice of intention in this appeal.

2 Mrs Krysiak has appeared today with her son and, at her request, I have given her son leave to speak on her behalf. Mr Krysiak has confirmed that the respondent, the Public Transport Authority (PTA), has not been given notice of today's application.

3 In support of her application, Mrs Krysiak has filed an affidavit sworn by her on 3 August 2016. In that affidavit she has deposed that she is a disabled, elderly, 88yearold pensioner who has lived at her present address in Mount Hawthorn for 50 years and has relied on public transport for most of that time. She has used bus routes 15 and 16 which once passed in front of her house where bus drivers would allow her to alight in front of her house instead of at a stop. The PTA decided that from 10 August 2015 bus route 15 would travel on a realigned route which avoids Mrs Krysiak's street. As a result of lobbying, the PTA instigated the trial of a new bus route, number 14, to run four times each weekday. This route 14 covers deleted sections of route 15, including Mrs Krysiak's street. It provides her with the ability to be relatively mobile but is limited compared to the former route 15.

4 The PTA recently put up notices stating that bus route 14 would be cancelled after 12 August 2016. Mrs Krysiak has deposed that if that happens her ability to travel and be independent will be severely curtailed and she will be forced to restrict her travel, using taxis when absolutely necessary, even to reach public transport. It would be extremely expensive for her to continue to travel as she does now and she estimates the amount of taxi fares to be in the order of $150 per week.

5 She has deposed that the injunction is sought ex parte because the time for service and response cannot reasonably be complied with before the proposed removal of the route. The PTA did not enter a notice of intention within the time limited by the rules. Until the determination of the application that Mrs Krysiak has made on 23 May 2016 for an interim order preventing the PTA from taking part in the appeal she believes that the PTA is not reasonably able to take part in this appeal. An application by the PTA for an extension of time to lodge their notice of intention has not yet been heard.

6 Mrs Krysiak has also deposed that she believes that as route 14 has been running for 12 months and is very limited, continuation of the route until resolution of this matter will result in little inconvenience or cost to the respondent. Reading her affidavit as a whole and taking into account the submissions made today, Mrs Krysiak contends that removal of route 14 would create a considerable cost to her and to others like her in the community.

7 The background to this application is that in August 2015, Mrs Krysiak lodged a complaint with the Commission of Equal Opportunity. In that complaint, she made a complaint of discrimination by the PTA in altering number 15 bus route so that it no longer ran on the street on which she lived and instituting the reduced trial service of bus route 14.

8 By letter dated 6 November 2015, the Acting Commissioner for Equal Opportunity informed Mrs Krysiak that he was dismissing her complaint pursuant to s 89 of the Equal Opportunity Act 1984 (WA) because he had decided that her complaint lacked substance. In that letter, the Acting Commissioner informed Mrs Krysiak that his reasons for dismissing the complaint were that there was no evidence of the proportion of persons with her impairments and age who were unable to comply with a requirement to walk a distance of about 500 metres to the nearest bus stop is higher compared to when the discontinued portion of route 14 was operating. He said that he would expect that, in most instances, any changes to a bus route would adversely affect the same proportion of people as it benefits. He said that there is no way of ascertaining on the material provided if the changes to the number 15 bus route disadvantaged other persons with her impairments or age to a greater degree compared to when the previous route was in place.

9 By email dated 27 November 2015, Mrs Krysiak informed the Equal Opportunity Commission that she would like to take her complaint further. The Acting Commissioner understood this email as a notice pursuant to s 90 of the Equal Opportunity Act requiring him to refer the complaint to the State Administrative Tribunal.

10 On 1 December 2015, the Acting Commissioner referred Mrs Krysiak's complaint to the State Administrative Tribunal. On 1 February 2016, pursuant to a direction made on 6 January 2016, Mrs Krysiak filed a statement of facts and contentions. On 4 April 2016, the State Administrative Tribunal dismissed Mrs Krysiak's complaint pursuant to s 47 of the State Administrative Tribunal Act 2004 (WA) on the grounds that it was misconceived or lacking in substance.

11 On 3 May 2016, Mrs Krysiak filed an appeal notice in this court, along with an affidavit by her and by her son explaining why they had not filed the appeal the previous day. The appeal notice was served on 5 May 2016.

12 On 17 May 2016, PTA filed its notice of intention. That is outside the time limited by O 65 r 12 of the Rules of the Supreme Court 1971 (WA).

13 On 23 May 2016, Mrs Krysiak filed an application for an order that the respondent was not entitled to be heard by reason of the late filing of its notice. On 12 July 2016, the PTA filed an application for an extension of time to file its notice of intention along with an affidavit in support of the application.

14 Neither Mrs Krysiak's application dated 23 May 2016, nor the PTA's application dated 12 July 2016 have yet been heard.

15 The principles governing the grant of any interim injunction were explained by Beech J in Twinside Proprietary Limited v Venetian Nominees Pty Ltd [2008] WASC 110. There are three interrelated considerations, namely, whether there is a serious question to be tried or the plaintiff has made out a prima facie case; whether the plaintiff will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and whether the balance of convenience favours the granting of an injunction.

16 Mrs Krysiak is an 88yearold woman who has limited mobility. The changes to the bus routes mean that a bus would not run past her house. This would make it more difficult for her to access public transport. Under s 66A and 66V of the Equal Opportunity Act, a person discriminates against another person on the ground of impairment or age if it requires that person to comply with a requirement or condition with which a substantially higher proportion of people who do not have the same impairment or age comply or are able to comply and the requirement or condition is not reasonable having regard to the circumstances of the case and the aggrieved person is not able to comply with it.

17 Mrs Krysiak contends that the requirement or conditions that she must travel further to access a bus service than she previously did. A broad meaning is applied to the notion of 'requirement or condition': Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349, 393 (Dawson & Toohey JJ).

18 It is not my function on the hearing of this application to express any concluded view as to the prospects of the appeal succeeding. However, it does not seem to me that it cannot be said that an appeal against the summary dismissal of her complaint does not have some prospects of success.

19 I turn now, to the issues of whether the applicant will suffer irreparable harm if the injunction against the change in bus route 14 is not granted and whether the balance of convenience favours the granting of an injunction. If the injunction is not granted, it will be more difficult and more expensive for Mrs Krysiak as she will have to incur taxi fares. However, if the injunction is granted, the PTA may have to reorganise the structure for public transport by bus.

20 In my view, Mrs Krysiak will not suffer irreparable harm if the injunction is not granted and the balance of convenience does not favour the granting of the injunction. If the appeal and the complaint were both to be successful, then it would be possible for her to be awarded damages under s 127 of the Equal Opportunity Act.

21 As I have noted, Mrs Krysiak has not served the PTA with this application and her application sought that it be heard ex parte. The second order sought by Mrs Krysiak today is to prevent the PTA taking part in this appeal. It is true that the PTA was late in filing its notice and its application for an extension of time has not yet been heard.

22 In my view, it is not appropriate to make the second order sought by Mrs Krysiak today when the PTA has filed an application for an extension of time to file its notice and that application has not yet been determined. Further, in the circumstances where it is clear that the PTA does wish to be heard and the injunction against change of the bus route sought would have an impact on its operations, I do not consider it appropriate in this case to grant any injunction without giving it the opportunity to be heard and I would not have done so.

23 However, I have, in any event, decided not to grant the injunction sought. I note that no undertaking as to damages has been filed by Mrs Krysiak. Such an undertaking is usually required under O 52 r 9 of the Rules of the Supreme Court. If I had decided to grant an injunction it is likely that I would have required an undertaking as to damages in the usual form to be lodged.

24 However, for the reasons that I have expressed, I am not granting any injunction today and the application is dismissed.