Peek v SA Water [2022] SACAT 47

• Whilst the complainant has shown some evidence of disability, he has not done so in a manner enabling it to be compared with members of a group of persons who do not share it.
• The complainant has not demonstrated the existence of (or his presence in) a class of persons necessary to show discrimination.
• The complainant had notice of the deficiencies in his case and had several opportunities to remedy them but opted not to do so.
• The claim of discrimination based on age is beyond the scope of the referral by the Commissioner and therefore outside the Tribunal's jurisdiction.
• The complaint has no reasonable prospect of succeeding.

Equal Opportunity - Complaint alleging that a person acted in contravention with the Act - Unlawful discrimination on ground of disability - Discrimination in relation to land, goods, services and accommodation

Equal Opportunity - Complaint alleging that a person acted in contravention with the Act - Unlawful discrimination on ground of disability - Definition, Nature and Scope of Disability

Equal Opportunity - Power of Tribunal to make certain orders - Enlargement of or amendment to scope of dispute - Matters not first included as part of referral by the Commissioner

Equal Opportunity Act 1981 (SA) s 5, s 66, s 76, s 85K, s 96

South Australian Civil and Administrative Tribunal Act 2013 s 4, s 8, s 31, s 48, s 49

Rodgers v Revenue SA, Department of the Treasury and Finance (State of South Australia) (2014) SASCFC 2

Pazios & Anor v Pultney Grammar School [2008] SAEOT 7

Marchenko v SA Police [2020] SAET 168 at [40]

State of Victoria v Rebekah Turner (by her next friend, Anja Turner) [2009] VSC 66

Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92

Catholic Education Office v Clarke [2004] FCAFC 197

Abraham v Thomas [2020] ACAT 41

Hills v State of South Australia [2002] SASC 171

Reurich v Club Jervis Bay Ltd [2018] FCA 1220

Mr T Simpson, with Mr S Fursa, Crown Solicitor's Office, appeared for the respondent

Made under the Equal Opportunity Act 1984 s 96(2)(b)

1. Mr Peek wants to use his dinghy on the Myponga Reservoir. He is not permitted to do so. The Reservoir is controlled by a government instrumentality; SA Water. SA Water permits kayaks and canoes on the Reservoir but not dinghies. Mr Peek complained to the Equal Opportunity Commissioner that SA Water's policy discriminates against him because he cannot safely use a kayak or canoe because of his disabilities.
2. The complaint was referred by the Commissioner to this Tribunal. Attempted conciliation of the complaint was unsuccessful and the complaint was referred for listing to a hearing.
3. SA Water does not consider that Mr Peek has a basis for his complaint. It applied to have the proceedings summarily dismissed. The Tribunal heard argument on that application. This decision sets out the determination of that application.
4. Notwithstanding that, for the purposes of this part of the proceedings, SA Water is the applicant (for summary dismissal), it is convenient to refer to the parties by their role in the primary proceedings, namely that Mr Peek is the complainant and SA Water is the respondent.

1. The complainant succinctly described himself and circumstances in the following manner. He is 66 years old and has a passion for fishing. He has held a boat licence for 35 years. He has qualifications in and was employed in outdoor education for over a decade. He describes himself as "experienced in small passive watercraft".
2. In April 2021, the complainant used his dinghy on the Myponga Reservoir. The vessel is a 2.2 metre boat propelled by oars. He says he was directed from the water because the vessel is not authorised for use on the water.
3. There are signs at the Reservoir that stipulate which craft are approved for use. It allows only kayaks and canoes on the Reservoir. There is also a policy that can be obtained from a government website www.reservoirs.sa.gov.au. The policy says, amongst other things, that:
   1. Conditions on the use of the reservoir are to preserve the place, ensure the safety of other visitors and protect our drinking water, to keep users safe from blue-green algae.
   2. Swimming and immersion in the water is prohibited.
   3. Temporary wading below the knee to launch a canoe or kayak is permitted.
   4. Dogs are not permitted in the reserves except assistance dogs.
   5. Horse riding is not permitted.
   6. Row boats, sailing boats and dinghies are not permitted as there are no safe launch facilities and "these larger vessels can damage the sensitive aquatic shoreline environment".
   7. Stand up paddleboards and inflatable toys are not permitted as there is a likelihood of deliberate and prolonged contact with water.
   8. Kayaks and canoes and some inflatable kayaks are permitted.
   9. Fishing is only permitted with a permit and in accordance with a set of conditions specific to that activity.
   10. Drones are not permitted, nor smoking or camping .
   11. The reservoir is open at specific times (generally, daylight hours).
   12. Battery powered or motorised watercraft are not permitted.
   13. The use of the permitted craft is subject to further conditions regarding use, onboard equipment and paint type.
4. The complainant complained to SA Water and sought an exemption. The respondent wrote to the complainant refusing him an exemption on 31 May 2021.
5. The rationale for the prohibition on all craft except kayaks and canoes was explained by the CEO of SA Water in correspondence to the complainant when he complained about the policy. Whilst it would be necessary in due course if the matter proceeded to consider that rationale, for the time being it is sufficient to note that the correspondence identifies ensuring water quality and human safety as being at the centre of the policy.

Brief Procedural Background and Legal Framework

1. The complainant was unhappy with the response he received from the respondent and lodged a complaint with the Commissioner for Equal Opportunity in August 2021. After undertaking investigation and conciliation, the Commissioner determined that the matter could not be conciliated and referred the complaint to the Tribunal.
2. The Tribunal proceedings were brought on that referral under ss 76 and 96 of the Equal Opportunity Act 1984 (SA) ("EO Act") and s 31 of the South Australian Civil and Administrative Tribunal Act 2013 ("SACAT Act"). The Tribunal's jurisdiction is original.
3. If the proceedings were to continue to a full hearing, the task of the Tribunal would be required to determine whether the respondent has acted in contravention of the EO Act and if it found that it had, make appropriate orders in accordance with the range of available orders set out in s 96 of the EO Act.
4. The respondent filed with the Tribunal and served on the complainant some documents relating to its policy concerning the conditions on which it allows members of the public to use Myponga Reservoir.

1. The complaint referred by the Commissioner to the Tribunal is

That on or about 12 May 2021, SA Water in the State of South Australia discriminated against the said Mr John Peek on the grounds of:

• Disability contrary to sections 66(b) and 66(ca) of the Equal Opportunity Act 1984 (SA) and in the area of provision of goods and services.

1. It is not in dispute that disability is a basis for a claim of discrimination, and is governed by Part 5 of the EO Act.
2. After the referral, on 30 December 2021, the complainant sought to add a claim of discrimination on the grounds of age to the scope of the matters in dispute. Age may be a basis of discrimination as set out in Part 5A of the EO Act and relevantly it is unlawful for a person who offers services to discriminate on the grounds of age in the terms or conditions on which or the manner of which the services are performed.[1]
3. It is not in dispute that the alleged discrimination occurred in circumstances that amount to a "service" provided by SA Water. The services to which the EO Act applies include, in s 5(1)(j) of the EO Act, "(a) access to or use of a place or facilities that members of the public are permitted to enter or use".
4. The claim, in simple terms, is that the complainant is unable to safely use a kayak or canoe because of various disabilities he has, and the age that he is, and that SA Water discriminates against him by permitting only those who can use a kayak or canoe to have access to the Reservoir in circumstances in which a prohibition on his use of his dinghy is unreasonable in the face of the rationale provided.

1. The respondent's application is for the Tribunal to dismiss the proceedings on the basis that the complaint has no reasonable prospects of success. The application is made pursuant to s 96(2)(b) of the EO Act and s 48(1)(a) of the SACAT Act. The respondent seeks, in the alternative, that the complaint be dismissed insofar as it makes a claim of discrimination based on age.
2. The documents that the Tribunal has before it are:
   1. A letter from Ms A Jackson, of SA Water addressed to Mr Peek dated 31 May 2021.
   2. A letter from Mr D Ryan, Chief Executive of SA Water addressed to the Equal Opportunity Commissioner dated 22 June 2021.
   3. A notice of referral from the Office of the Commissioner for Equal Opportunity dated 16 August 2021.
   4. Written submissions from the complainant in support of the overall application.
   5. Written submissions in response from the respondent in support of the overall application dated 8 September 2021.
   6. Further written submissions from the complainant and Mr Prescott in relation to the assessment of a launch site.
   7. A report of Mr T Sharley addressed to Mr Peek and dated 15 November 2021.
   8. An email containing submissions from Mr D Trott in relation to waterborne diseases.
   9. Further submissions from the complainant in relation to the overall application.
   10. The respondent's amended response dated 21 January 2021 (sic: 21 January 2022)
   11. A letter from Mr P Varley to Mr Peek in relation to Mr Peek's ability to use a kayak or canoe, dated 19 January 2022.
   12. A statement from Mr D Williamson in support of Mr Peek's application.
   13. A letter from Dr C Gooi, orthopaedic surgeon, in relation to Mr Peek's right knee, dated 6 January 2022.
   14. A medical certificate signed by Anh Vo, physiotherapist, in relation to Mr Peek's left shoulder, dated 10 January 2022.
   15. An x-ray report signed by Dr B Lorraine in relation to Mr Peek, dated 21 December 2021.
   16. An affidavit of Professor D Trott dated 3 January 2022.
   17. An affidavit of Mr Peek dated 2 March 2022.
   18. An affidavit of Mr D Williamson dated 4 March 2022.
3. The respondent provided written submissions and made oral submissions in relation to the summary dismissal application. The respondent has the onus of establishing that the claim should be dismissed. The complainant made oral submissions through his friend, Mr Prescott, opposing the application.

Overview of the arguments on the summary dismissal

1. The respondent contends that:
   1. the applicant has not adduced evidence upon which a finding that he has a disability within the meaning of the EO Act could be made;
   2. the applicant has not made submissions on or adduced evidence about the basis upon which the Tribunal might make a 'comparator' finding necessary for a claim of indirect discrimination; and
   3. The claim insofar as it alleges discrimination based on age is incompetent because that allegation has not been referred by the Commissioner.
2. In relation to the claim of disability discrimination, the respondent submits that the Tribunal should find, without proceeding to hearing of the substantive issues, that the complainant has been given several opportunities to put his case, and has filed various materials, but none of the materials addressing the conditions he experiences establish that he has a disability that could establish an entitlement to relief. Further, the respondent says that the complainant has not filed or foreshadowed any evidence that would enable him to establish the capability of persons without his physical restrictions as is necessary where a claim of indirect discrimination is made. The respondent argues that this means that there is no basis on which the Tribunal might conclude that the respondent has treated him differently than it has treated persons without his disability.
3. The respondent maintains that the complainant's claim with respect to age cannot be considered because the Tribunal's jurisdiction is limited to the determination of that which has been referred by the Commissioner, and the referral makes no reference to discrimination on the grounds of age.
4. Further, whilst the Tribunal is entitled to be cautious in respect of summary dismissal, the burden on the respondent in adducing evidence to meet the claim of unreasonableness in relation to the policy as to the use of the Reservoir is a relevant consideration in determining whether it is appropriate to grant summary dismissal on the complainant's failure to make out necessary elements of his claim.
5. The complainant contends that the proceedings should not be dismissed summarily. He submits that he has established an arguable case and that he should be granted a hearing. The propositions that the complainant wishes to be the subject of a hearing are that he experiences disability and that those disabilities can be accommodated by the respondent by allowing him to use his dinghy on the Reservoir. He has identified the routes by which he will seek to establish that, in any event, his use of the Reservoir is not inconsistent with the respondent's policy objectives of maintaining the Reservoir's water quality.
6. The complainant sought, at the hearing of the summary dismissal application, to have the Tribunal direct the parties to participate together (with or without the Tribunal) in a trial launch of the applicant's vessel at the Reservoir to gather information regarding the extent of sediment disturbance launching his dinghy caused, and sought orders that the respondent discover information regarding the incidence of vessels capsizing since the policy's inception, on bodies of water it controls.
7. Both the launch evidence and the information about capsizing are potentially relevant to the question of whether the respondent's policy is a reasonable and appropriate response to the circumstances that gave rise to the policy. However, I declined to make those orders at the hearing. In my view, those applications might be revisited after the determination of the application for summary dismissal.

SA Water's arguments on the summary dismissal application in more detail

1. The respondent maintains that the complainant has not put before the Tribunal or foreshadowed adducing any evidence that would be capable of enabling the Tribunal to reach a conclusion that he has a 'disability' or 'disabilities' within the meaning of the EO Act in the way that is necessary for a determination of a claim of indirect discrimination.
2. The respondent referred the Tribunal to the complainant's document entitled "Second Further and Better Particulars of the applicant's application" in which the complainant asserts the following conditions:
   1. Arthritis of the right knee,
   2. Arthritis of his right hand,
   3. Arthritis of his left shoulder,
   4. Balance difficulty as a consequence of vestibular inner ear disturbance,
   5. Spinal deterioration in his lower back,
   6. Lacking binocular vision,
   7. Leg cramp,
   8. Hearing disability,
   9. High blood pressure.
3. The respondent contends that the evidence upon which the applicant seeks to rely is incapable of establishing that the applicant has a disability, or disabilities, that impact upon his ability to comply with the conditions of access to the Reservoir.
4. The respondent also submits that the Tribunal has insufficient evidence to establish that a substantially higher proportion of a person with the same disability as the applicant is unable to comply with the requirement.
5. Further, the respondent submits that it has made clear to the applicant that it takes this view and the respondent has not, in response, made or foreshadowed an attempt to address the alleged evidentiary deficiency. The respondent submits that it is entitled to a summary dismissal of the claim rather than being required to gather evidence as to the basis and reasonableness of its policy when the applicant has not shown and has not indicated that he can show that he can establish a prima facie entitlement to any relief.
6. The first aspect of the respondent's argument relates to the definition of 'disability'. It is not in dispute that the applicant asserts indirect discrimination based on disability.
7. The term 'disability' is defined in s 5 of the EO Act as follows:

disability, in relation to a person, means -

(a) total or partial loss of the person's bodily or mental functions; or

(b) total or partial loss of a part of the body; or

(c) the presence in the body of organisms causing disease or illness; or

(d) the presence in the body of organisms capable of causing disease or illness; or

(e) the malfunction, malformation or disfigurement of a part of the person's body; or

(f) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or

(g) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;

1. In addition to the definition, the context in which it has effect, namely s 66, is relevant. It provides (with the relevant portions highlighted in bold):

66 - Criteria for establishing discrimination on ground of disability > > For the purposes of this Act, a person discriminates on the ground of disability -

(a) if he or she treats another unfavourably because of the other's disability, or a past disability or a disability that may exist in the future; or

**(b) if he or she treats another unfavourably because the other does not comply, or is not able to comply, with a particular requirement and - **

(i) the nature of the requirement is such that a substantially higher proportion of persons who do not have such a disability complies, or is able to comply, with the requirement than of those persons who have such a disability; and

(ii) the requirement is not reasonable in the circumstances of the case; or

(c) if he or she treats another unfavourably on the basis of a characteristic that appertains generally to persons who have such a disability, or on the basis of a presumed characteristic that is generally imputed to persons who have such a disability; or

(ca) if he or she -

(i) fails to provide a safe and proper means of access to, or use of, a place or facilities for a person who requires special means of access to, or use of, the place or facilities as a consequence of the person's disability; or

(ii) treats another unfavourably because the other requires special means of access to, or use of, a place or facilities as a consequence of the other's disability,

to the extent that he or she is able to effect the provision of access or use; or

(d) if, in circumstances where it is unreasonable to do so -

(i) he or she fails to provide special assistance or equipment required by a person in consequence of the person's disability; or

(ii) he or she treats another unfavourably because the other requires special assistance or equipment as a consequence of the other's disability; or

(e) if he or she treats a person with a disability unfavourably because the person possesses, or is accompanied by, an assistance animal, or because of a related matter (whether or not it is his or her normal practice to treat unfavourably a person who possesses, or is accompanied by, an animal of the same species as the assistance animal); or

(f) if he or she treats another unfavourably because of an attribute of or a circumstance affecting a relative or associate of the other, being an attribute or circumstance described in the preceding paragraphs.

1. The complainant's claim relies upon that part of the definition of disability that refers to a partial or total loss of function in a part of his body or a malfunction of part of his body, and a claim of unfavourable treatment under s 66(b). The unfavourable treatment is alleged to arise because he is not able to comply with SA Water's requirement that if he is to use the Reservoir, he do so using a kayak or canoe. It is implicit in his claim that he seeks to establish that SA Water's requirement is one that a substantially higher proportion of persons who do not have his disability can comply with, than those persons who have his disability, and the requirement is not reasonable in the circumstances of the case.
2. The respondent submits that the medical evidence adduced or foreshadowed by the complainant does not establish that the complainant has a disability that prevents him from using a kayak or canoe, or any evidence as to the ability of those in the group with which he identifies, that is to be used by way of a comparator to the group that is able to comply with the requirement.
3. In relation to the complainant's claims concerning discrimination on the grounds of age, the respondent contends that the complaint in this regard is outside of the scope of the referral by the Equal Opportunity Commissioner to the Tribunal, and that this takes the claim beyond the jurisdiction of the Tribunal by virtue of s 95B(1)(b of the EO Act, which sets out the circumstances in which a referral must be made by the Commissioner to the Tribunal.

The complainant's arguments regarding the summary dismissal application

1. The complainant's position on the application for summary dismissal was made in a brief oral submission through his friend, Mr Prescott. The complainant's position is that he ought to have the benefit of a hearing of the whole of the application. It was emphasised that he is not legally represented, that the Tribunal was bound to decide matters based on equity, good conscience and the substantial merits of the matter, and that summary dismissal should be reserved for cases, this not being one, in which it has been demonstrated that an applicant's claim is hopeless or doomed to fail.
2. The complainant commended to the Tribunal the judgement of Stanley J in the Full Court decision of Rodgers v Revenue SA, Department of the Treasury and Finance (State of South Australia).[2] In that case, the complainant's action in respect of alleged sexual harassment and victimisation in the workplace was summarily dismissed by the Equal Opportunity Tribunal, and the complainant appealed to the Full Court. The majority (Blue J, with whom Vanstone J concurred) found that the Tribunal did not err in its conclusion that the acts said to constitute victimisation did not occur within employment, and that on the facts as alleged there was no discrimination by the respondent. The majority also found that the Tribunal did not err in exercising its discretion not to allow the complainant an extension of time to bring her out of time action. Thus the Court upheld the Tribunal's dismissal of the claim. Stanley J, dissenting, found that the applicant had an arguable case, that the discretion not to extend time was exercised in error and the Tribunal ought not to have summarily dismissed the proceedings. Stanley J's remarks regarding the principles of summary dismissal in the context of the claim were not inconsistent with the majority's approach to summary dismissal though they differed on the application of those principles to the circumstances of the case. The complainant, through Mr Prescott, invited the Tribunal to adopt the approach enunciated by Stanley J that, the power to summarily dismiss is limited to "when it has been demonstrated clearly that it is futile to proceed further because the complaint enjoys no prospect of success" and that there is no basis to exercise the power "if any part of the complaint is arguable such that there is a prospect that the complainant might be entitled to a remedy".[3] It was submitted that on the materials that the complainant had advanced, there was a proper basis to proceed to a hearing of the complaint in respect of disability discrimination.
3. In relation to the claim of age discrimination, the complainant did not concede that the claim could not succeed for the reasons given by the respondent, but did not advance any argument as to how the Tribunal's jurisdiction was enlivened in respect of the claim.

1. The issues to be determined are:
   1. What is the test for summary dismissal in an equal opportunity proceeding in SACAT?
   2. Has the complainant adduced or foreshadowed that he will adduce evidence of a disability?
   3. Has the complainant adduced or foreshadowed adducing evidence about the relationship between the disability and the requirement imposed by the respondent?
   4. How are the comparator groups defined?
   5. Has the complainant otherwise adduced or foreshadowed evidence to meet the test of indirect discrimination namely that a substantial proportion of persons with the disability cannot meet the requirement?
   6. Is the age discrimination complaint within the Tribunal's jurisdiction to determine?

Test for summary dismissal in equal opportunities proceedings in the Tribunal

1. The Tribunal has no inherent powers; only those conferred directly upon it by statute and those created under a statutorily conferred power to make rules governing its own procedure. The power to dismiss proceedings without an adjudication of their merits is a significant incursion into the right to have a dispute adjudicated or application determined. Unsurprisingly, such a higher order power is expressly conferred by the legislature rather than left to be determined under internal tribunal rules.
2. The legislature has conferred two potential sources of power upon the Tribunal relevant to the respondent's application to summarily dismiss. Section 96(2)(b) of the EO Act provides that the Tribunal may, at any stage of proceedings under Part 8, make an order dismissing the proceedings.
3. Separately, s 48 of the SACAT Act gives the Tribunal the power to order that proceedings be dismissed if the Tribunal believes that a proceeding:
   • is frivolous, vexatious, misconceived or lacking in substance or involves a trivial matter or amount; or
   • is being used for an improper purpose; or
   • is otherwise an abuse of process.
4. Section 49 of SACAT Act gives the Tribunal the power to strike proceedings out if the Tribunal believes that a party to proceedings is conducting them in a way that unnecessarily disadvantages the other by conduct such as, amongst other things, for failing to comply with an order or direction without reasonable excuse.
5. The explanation for the existence overlapping provisions is simple. The SACAT Act is an Act that establishes machinery to enable the Tribunal to receive jurisdiction under numerous referring Acts. It confers various powers to facilitate the disposition of proceedings. The specific Acts that confer legislation were not, when amended to confer jurisdiction on the Tribunal, thoroughly rinsed of all of the specific powers conferred on predecessor adjudicating bodies (in this case, the Equal Opportunity Tribunal) and some overlap remains.
6. Both sections provide that if any proceedings are dismissed or struck out under those sections then another proceeding of the same kind in relation to the same matter may not be commenced before the Tribunal without the leave of a Presidential member of the Tribunal.
7. Section 4 of the SACAT Act provides that where there is an inconsistency between the conferring legislation and the SACAT Act, the provision in the conferring Act prevails. Without deciding whether s 96(2)(b) is, strictly speaking, inconsistent with s 48 such as to override it or whether it should be read as supplanting the operation of s 48, I find that it is appropriate to consider the application by reference to s 96(2)(b) of the EO Act.
8. In any event, it is my view that the provisions should be construed in a manner that requires a similar if not identical approach to the question of summary dismissal.

Summary dismissal in Tribunal matters generally

1. A statutory power to summarily dismiss is to be construed on its terms, which will often adopt the language of those authorities addressing a court's inherent or rule-derived power. To that extent, there is value in considering the authorities setting out judicial consideration of the relevant principles and such principles have frequently been invoked in consideration of a tribunal's statutory power to summarily dismiss.[4]
2. The power to summarily dismiss under a statutory power that adopts wording employed in respect of a court's inherent power is to be exercised on principles that are similar to that of a court except to the extent that the words or context indicate otherwise. It is important to give effect to the legislature's intent, where expressed, that tribunals are to operate differently from courts in some ways. If it were not so, then the purpose of directing certain functions at tribunals that could be undertaken by courts, namely that they be dealt with in a different manner, would be thwarted.
3. The objects of the Tribunal as set out in s 8 of SACAT Act include:
   • To keep costs to a minimum insofar as is just and appropriate;
   • To use straightforward language and procedures;
   • To act with as little formality and technicality as possible, including by informing itself in such manner as the Tribunal thinks fit; and
   • To be flexible in the way in which the Tribunal conducts its business and to adjust its procedures to best fit the circumstances of a particular case or a particular jurisdiction.
4. It is evident from the presence of s 96(2)(b) that it is the legislature's intention that it will be appropriate in some circumstances for the Tribunal to summarily dismiss proceedings brought under the EO Act. Indeed, it is in some ways entirely consistent with the aim of ensuring that tribunals determine matters expeditiously and fairly. Many matters before tribunals concern disputes that are not commercial in nature, or are of low financial value, and involve parties who are unrepresented. An action that has no prospect of being successful is a burden for the respondent and this is an important consideration to be balanced against the need to ensure that a claim that has a prospect of success is properly considered on its merits.
5. The corollaries of the circumstances in which it will be appropriate to dismiss are that a tribunal will also often be more ready to use a power to proceed to consider a matter in the absence of a respondent, and reach a summary judgment in favour of an applicant where the case is clearly made out and no substantive response is made.
6. On the other hand, there are circumstances associated with tribunal proceedings generally and with proceedings brought under the EO Act that militate against the use of summary dismissal too readily.
7. Pleadings are usually minimal and in a 'lay' form. The scope of an equal opportunity proceeding is determined by the Commissioner's referral, which is often described in a paragraph. Interlocutory stages of the proceedings are truncated. An emphasis is placed on bringing the proceedings to a substantive hearing and allowing the Tribunal to guide the parties to adduce the evidence relevant to the issues that require findings and matters of law that must be determined. Hearings tend to be shorter than in court proceedings and evidence adduced is sometimes not foreshadowed by parties, requiring the Tribunal to achieve the necessary procedural fairness "on the run" and in accordance with the particular issues and context.
8. It is not uncommon, in a substantive hearing on an equal opportunity matter and in other matters before the Tribunal, for the issues in dispute to develop from their barely-described origins in whatever amounts to the pleadings, by the parties responding to the decision-maker's questions, by being directed to elicit evidence on the issues that are required to be the subject of findings of fact, or having submissions elicited from them on questions of law, during the hearing itself. This is simply a function of the manner in which the Tribunal operates to ensure that disputes are determined by the application of the relevant legal principles to the facts as they are capable of being found on the evidence presented.
9. Where an application for summary dismissal is made by a respondent, it is important for the Tribunal to consider whether the applicant in the proceedings has, by virtue of ignorance or other unfamiliarity with legal process, failed to articulate his or her case but that it would be appropriate to allow the applicant to remedy that during the substantive hearing of the matter.
10. The test for summary dismissal is not altered by these matters. The test is whether the complainant's case is unarguable or could not be established. The test to be applied by the Tribunal on application for summary dismissal at an early stage is onerous.[5]
11. On an application it is relevant to consider:
    1. Whether the parties are represented,
    2. The nature of the claim,
    3. The detail in the documents that provide the equivalent of a pleading,
    4. The opportunities that the applicant has had to remedy any alleged defect in the claim and to make submissions regarding the application for summary dismissal,
    5. Whether the proceedings are to be determined solely on a matter of statutory interpretation or jurisdiction or other issue of law, or whether there is a significant factual dispute,[6]
    6. The likely length and complexity of the proceedings,
    7. When the substantive matter can be heard.
12. The task of determining whether the test is met is difficult and must be approached cautiously. In many cases, it will not be appropriate to entertain it because the task is unlikely to be able to be carried out in a manner that yields an answer, or the task will entail as much or more in resources than would be required to determine the whole of the matter. Further, the obligation of the Tribunal to determine matters by reference to their substantive merits, subject to other powers and obligations including the power to summarily dismiss in appropriate circumstances, indicates that the Tribunal is obliged to place value upon giving the parties an outcome on the substance of the application.
13. On receipt of a written or oral application for summary dismissal, it is necessary to decide whether the proceedings, which might be wholly disposed of in a single hearing of several hours duration, should be fragmented so as to consider summary dismissal. Further, consideration will often be given to whether the technicality associated with the application of the principles applicable to a summary consideration should be avoided, observing that the outcome might be one in which an unrepresented unsuccessful party is left misunderstanding the process.
14. In light of these factors, more often than not, the Tribunal will not grant an application for consideration of summary dismissal but will proceed to hear all of the issues at once in a substantive hearing conducted within a reasonable timeframe from the initial lodgement. Summary dismissal should not be entertained where the complaint is defective in a manner that does not go to its substance. As Kyrou J said in an equal opportunity proceeding under the Victorian scheme:

it is obviously desirable that a complainant be held to the manner in which they define their complain and conduct their proceedings before the Tribunal. Clearly, a complainant should not be permitted to deviate from their complaint if the deviation would cause the Tribunal to exceed its jurisdiction, result in a breach of the rules of natural justice or cause the Tribunal to commit some other error of law. Where, however, the issues before the Tribunal are well understood by the parties and the Tribunal, a dismissal of the complaint on the basis of the label that the complainant used to describe the complaint or a feature of the complaint should be avoided unless this is mandated by law.[7]

15. In considering an application, and in the absence of pleadings, the Tribunal can have regard to affidavit material or other material properly received relevant to consideration of whether a valid complaint of a contravention of the Act has occurred that has some prospect of success.[8]
16. Once it has been decided that it is appropriate to consider an application for summary dismissal as a preliminary point, it is not for the Tribunal to create a case for an applicant or to speculate or assume that the applicant's evidence will improve. The applicant must identify their arguments on issues of law, and identify their evidence on matters in relation to which proof is required, for the assessment of whether there is a reasonable prospect of success.[9]
17. In some circumstances there is reason for the Tribunal to be more receptive to a request to consider an application for summary dismissal. Those are cases in which the claim contains elements in respect of which the respondent bears an evidential burden. Where a respondent bears an evidential burden, there is a greater case for ensuring that the applicant has a prima facie case before the respondent is obliged to meet the claim.
18. In this case, there were two discrete bases upon which the application was brought. The first concerned whether the complaint insofar as it makes a claim of discrimination based on age, is within the Tribunal's jurisdiction. The second is whether the complainant has provided an adequate basis to proceed to a hearing in light of the matters that the complainant has to prove and the burden on the respondent to establish that the discrimination, if established, was reasonable.
19. It is part of the complainant's case that the respondent's requirement is unreasonable. It is for the complainant to establish this. Having identified from the respondent's correspondence that the rationale behind its policy is based on water quality and user safety, the complainant proposes to adduce evidence on those issues. But the complainant also seeks discovery of documents from the respondent and seeks a practical demonstration at the Reservoir to make out his case on this topic.
20. The respondent submits that it is reasonable for the applicant to be required to establish that he meets the prerequisites for a finding of indirect discrimination against him before the respondent is required to discharge the evidential burden that its actions in implementing the policy were reasonable, by gathering and adducing what it maintains is a voluminous and complex body of evidence underpinning the policy, or by responding to the complainant's requests.
21. In these proceedings, consideration of the respondent's application for summary dismissal is appropriate because:
    1. The jurisdictional issue associated with the claim of age discrimination is a confined question of law that can be resolved without a hearing;
    2. The statutory criteria direct the applicant to what he must prove in respect of the claim of indirect discrimination based on disability, so it is possible to examine the complainant's case against those criteria;
    3. One of the statutory criteria created an evidential burden for the respondent that is only required to be met if the complainant establishes he has been discriminated against;
    4. The proceedings had already had some directions hearings and the applicant had had several opportunities to indicate the evidence on which he relied;
    5. There is no evidence that the applicant requires further assistance to understand what is required of him.

1. It is convenient to deal with the age discrimination complaint first.
2. The complaint did not original include a claim of discrimination based on age. That aspect of the complaint was introduced in the complainant's second further and better particulars filed on 24 December 2021.
3. The Tribunal has some original jurisdiction conferred by the EO Act in respect of the granting of exemptions under Part 7. However, the procedure for the making of a complaint, set out under Part 8, requires the complainant to complain to the Commissioner (s 93(1c)). The Commissioner has various powers and functions in respect of complaints lodged. Section 95B requires the Commissioner to refer complaints to the Tribunal if the criteria in that section are met. What is referred is "the matter": s 95B. It is evident that "the matter" is that which has been lodged with her as a complaint and has been discerned by her in the process of investigation and conciliation undertaken within her office, to be within jurisdiction.
4. The Commissioner's referral is expressed in a manner to enliven the Tribunal's jurisdiction to determine the complaint and to define the scope of the matter.
5. That scope determines the limits of the dispute except insofar as the Tribunal may permit any enlargement. The discretion to permit enlargement of the scope of the dispute would usually be limited to the identification of further or other occasions of alleged discrimination of the same type alleged in the original complaint. This is because the scheme of the Act is evidently to require a complainant to have their complaint investigated and conciliated in the first instance by the Commissioner and for the Tribunal only to conciliate or hear matters that have already been through such a process.
6. To the extent that the Tribunal is able to enlarge the scope of the proceedings such enlargement is not capable or should not be exercised in a manner that introduces new grounds of discrimination with different criteria that have not been assessed by the Commissioner as having prima facie been met so as to create a complaint that is within jurisdiction and that has been through the Commissioner's processes.
7. For the purposes of these proceedings it is not necessary to consider whether the Tribunal could accept, by consent, an amendment to a complaint that had the effect of adding a ground of discrimination not originally referred. No consent has been given.
8. In respect of the complaint insofar as it raises an allegation of discrimination based on the complainant's age, the complaint is summarily dismissed.

1. Cases involving allegations of disability discrimination must be distinguished from those asserting discrimination on other grounds. In Purvis v New South Wales[10] the High Court observed that whereas in legislation addressing difference in sex or race those characteristics are identified as a generally irrelevant consideration in the treatment of persons, disability discrimination legislation:

necessarily focuses upon a criterion of admitted difference. The abilities of a disabled person differ in one or more respects from that range of abilities which is identified as falling within the band described as "normal". It follows that disability legislation must be understood from the premise that the criterion for its operation is difference. That has important consequences, not only for the lessons that may be learned from the way in which other legislatures or deliberative bodies have identified the problems that should be considered, but also for the proper understanding of the solutions that have been devised by those other bodies to answer the problems identified.[11]

Concepts of difference", "disability" and "disadvantage" all depend upon comparisons. They assume that there is a person, or group of person, with whom it is useful and relevant to draw the comparison which is implicit in describing one person as "different" or "disabled", or "disadvantaged.[12]

3. The task, therefore, for an adjudicator in a claim of disability discrimination is to compare two groups: those with the disability and those without. However, it does not entail a comparison between all those persons with and all those persons without the disability. The constitution of the comparator groups is determined by the circumstances of each case.[13]
4. It is the alleged failure of the complainant to grapple with this aspect of his claim that has led the respondent to assert that the claim is doomed to fail and that summary dismissal should be granted.

Is the application for summary dismissal made out?

1. The respondent submits that it is an essential prerequisite of the applicant's claim that he has a 'disability' within the meaning of the EO Act and that the disability prevents him from meeting the respondent's requirement for access to the Reservoir.
2. The definition of 'disability' contains a list of overlapping criteria any one of which if satisfied establishes disability. The criteria which are relevant to the ailments he describes are that he experiences a total or partial 'loss of ...bodily functions" or a "malfunction... of a part of the person's body".
3. In construing the definition, effect must be given to the whole of it.[14] Further, it is necessary to consider how the definition is engaged in the operative provisions in the EO Act.[15]
4. By reference to the definition, an injury or illness or disease without loss of function or a malfunction will not meet the definition.
5. Some loss of function may be so apparent that it will not require expert evidence to satisfy the decision-maker that it is experienced by an individual even by a description or diagnosis. The loss of a limb, for example, establishes a whole of body function loss. Damage to certain optical nerves causative of blindness will amount to whole or partial loss of eye function. In such cases, the fact of the description of the injury or illness or condition by a medical practitioner may not necessitate evidence regarding the fact or extent of loss of function.
6. Other loss of function is not apparent from the fact of a condition, illness or injury and may need further evidence to be established.
7. Dr Gooi, orthopaedic surgeon, describes the complainant's right knee as having a "significant problem", "severe osteoarthritis" a "ruptured anterior cruciate ligament which is causing instability" and that he is precluded from "any strenuous activities, including lifting heaving weights". It does not entail an unacceptable level of speculation to observe that Dr Gooi may, if asked, assert a loss of function in the right knee. For the purposes of a direct discrimination case based on disability, it is quite possible that the evidence would not be suggested to be deficient and a finding of disability might be made.[16]
8. Anh Vo, the physiotherapist, states that Mr Peek has "ongoing left shoulder dysfunction due to tendon degeneration" and "known right knee degeneration". The physiotherapist does not assert a loss of function but says that Mr Peek "may likely have issues with lifting activities above shoulder level" and that his knee may be "unstable with some activities."
9. Dr Varley, upon whose report the applicant primarily relied in the oral hearing, states that Mr Peek had a cochlear implant in 2015. However, it is not a hearing loss upon which Mr Peek relies for the asserted disability. He relies upon the post-operative vertigo that he developed. Dr Varley says that Mr Peek has disequilibrium and "overall poor balance function". He goes on to say that Mr Peek's "daily function is satisfactory but he does tend to veer and fall to one side spontaneously from time to time". It might be inferred from this that Dr Varley considers that Mr Peek has a loss of the bodily function of balance. Dr Varley was not asked to comment on whether a substantially higher proportion of people who do not have a loss of balance function would be able to comply with the policy than those who do. Nor was he asked whether the propensity to veer and fall to one side spontaneously from time to time was incompatible with safe management of a dinghy on a body of water, or increased the chances of the handler falling into the water.
10. The applicant also relies upon an x-ray report from Dr Lorraine that interprets images of Mr Peek's right hand and foot. These describe osteoarthritis and make no reference to loss of function. On that evidence, it would not be possible for the Tribunal to form a conclusion as to what class of persons the complainant is a member.
11. The complainant says that
    1. The arthritis in his right knee prevents him from safely or comfortably transporting, launching, navigating or propelling a canoe or kayak or other certified inflatable vessel;
    2. The arthritis in his right hand prevents him from safely or comfortably launching, navigating or propelling a canoe or kayak or other certified inflatable vessel;
    3. The spinal deterioration in his lower back prevents him from launching, navigating or propelling a canoe or kayak or other certified inflatable vessel;
    4. His balance difficulty arising from his vestibular inner ear problem makes it extremely dangerous for him to use a canoe or kayak or other certified inflatable vessel;
    5. His lack of binocular vision, in combination with his balance difficulty prevents him from safely or comfortably launching, navigating or propelling a canoe or kayak or other certified inflatable vessel;
    6. His propensity for leg cramps make it dangerous for him to propel or navigate a canoe or kayak or other certified inflatable.
12. The complainant asserts that he can comfortably and safety use his dinghy on the Reservoir. The respondent complains that the complainant makes no assertion of how he can safely and comfortably use a dinghy but not one of the approved vessels.
13. The applicant has not particularised his disabilities by reference to loss or function at all but rather by diagnosis. He asserts arthritis, vestibular inner ear disturbance causing balance difficulty, spinal deterioration, a lack of binocular vision, leg cramp, hearing disability and high blood pressure. Nor has the medical evidence he provided set out the quantum of any loss or the extent of any malfunction.
14. In the Tribunal's opinion, there is some evidence of 'disability' (indeed, disabilities) as defined in s 5 of the EO Act before the Tribunal.
15. However, for the purposes of a claim of indirect discrimination made pursuant to s 66 of the EO Act, the complainant must assert his disability in a manner that enables it to be compared with members of a group of persons who do not share it.
16. In undertaking the comparison task, the words of the statute are critical.[17] In the EO Act, the focus of the provision (s 66) that the complainant seeks to rely upon is upon the discriminator's unfavourable treatment of the complainant because (a) the complainant does not comply or is not able to comply with a requirement, (b) where the nature of the requirement is such that a substantially higher proportion of person who do not have the complainant's disability can comply with the requirement than of those persons who have such a disability.
17. Whilst the definition of 'disability' appears to accommodate a loss of function of any type or magnitude, where indirect discrimination is alleged, the disability must be capable of admitting the applicant to a group of persons who can be said to have the disability. Further, the disability must be such as to allow a delineation between the group of persons who have the disability and those who do not. This is a function of the criteria for establishing indirect discrimination that is peculiar to that species of claim. In other words, where the disability asserted is shared in varying degrees of severity amongst a large group, it may be necessary to specify the boundaries of the group by describing the disability by reference to a level of severity. If so, it is in keeping with the definition that severity should be described by reference to the extent of malfunction or the extent of loss of function.
18. The complainant's evidence does not do this. The evidence regarding the complainant's shoulder function does not place the applicant in a class of persons with loss of shoulder function or provide an evidentiary basis for understanding what a functional shoulder can achieve. This takes into account that not all comparisons will be able to made with precision, as acknowledged by former Chief Justice Doyle in Hills v State of South Australia.[18] A comparison may not be able to be made with precision but an adequate descriptor of the two groups is necessary.
19. Apart from a tentative view that the condition of Mr Peek's knee is capable of a conclusion of some of function, and that he may be a member of a class of persons who has a loss of balance function, the evidence does not currently establish what the class to which he asserts membership is by reference to knee function.
20. It may be observed that arthritis is experienced in varying degrees by significant proportions of the population over middle age. For some, it will be little more than a nuisance ache or slightly diminished power or range in the affected area. For others, it may occlude all function in a joint and diminish activity significantly.
21. The same may be said of the asserted disabilities relating to hearing loss.
22. The complainant asserts that the class of which he is a member is "other South Australian citizens with similar disabilities".
23. The complainant's case, on the evidence produced to date, does not lend itself to a conclusion as to the boundaries of the group the membership of which is determined by reference to his disability or disabilities into which the complainant places himself. It does not do so in respect of any individual disability or any grouping of disabilities he asserts.
24. The applicant is required to establish the group with which he identifies with greater specificity than he has done. It needs to be described in a manner that enables the inability of its membership to meet the requirement to be identified. That assessment does not lend itself to the subjective and relative terms he has used when referring to his use of a canoe or kayak such as "comfortably" or "safely".
25. Importantly, the class of persons of which he seeks to assert membership is one whose disabilities do not prevent use of a dinghy. It is not the group of persons who cannot use a watercraft at all, but the group of persons who cannot use a canoe or kayak but can use a dinghy.
26. To give an example, a vision-impaired person who asserts discrimination on the grounds of that disability is not placed in a class of persons with broader disability e.g. those who are vision-impaired and immobile through paralysis. This becomes relevant when the act of comparison is undertaken with the group said to have been favourably treated. The comparison must occur as between the classes defined only by reference to the asserted disability.
27. If the complainant were to establish a class whose membership is defined by certain disabilities and that he is a member of that class, he would then be required to establish that members of the class are unable to meet the requirement imposed by the respondent.
28. Finally, the complainant would also be required to establish the identity and capability of the comparator class.
29. The comparator class that the complainant impliedly asserts is those persons who wish to use watercraft on the Reservoir and can comply with the requirement to use a kayak or canoe to do so.[19] The complainant is required to establish that a substantial proportion of persons who wish to use the reservoir by watercraft is able to use a canoe or kayak.
30. It can be seen that the test is, in this matter, a particularly difficult one to apply on the facts of this case. The complainant says that he cannot use a canoe or a kayak because of his disabilities but he can safely and effectively use a dinghy. The evidence as to that proposition is not wholly evident. The group of which he would be required to assert that he is a member is that which consists of persons who have disabilities that have led to loss of function, or consist of malfunction, to the extent of limiting the ability to use the permitted watercraft but not other watercraft and particularly not a dinghy.
31. It is not evident that the class of person will be shown to exist, even with one member. This is even if the class is defined, not by persons with exactly the same set of disabilities (such that the class is likely to have only one member - the complainant) but by persons with disabilities that have the same effects upon the ability to use watercraft as the effects on the complainant in terms of use of the oars, ability to be stable, and such other aspects of launching and manoeuvring the watercraft.
32. Assuming that such a class does exist, the complainant must achieve a finding that a substantially higher proportion of persons who wish to use a watercraft on the reservoir but who do not have his disabilities (or at least disabilities with the same effects) can use a canoe or kayak than those with his disabilities (or those with the same effects). No evidence has been filed or foreshadowed regarding the comparator group.
33. This analysis and the state of the evidence suggest that the complainant could not prove his case at any substantive hearing of the matter. The question for the Tribunal is whether his failure to advance such evidence or even engage with the task that the legislation requires a complainant to undertake means that the Tribunal should grant summary dismissal of the claim.
34. In the particular circumstances of this case, it does.
35. The procedural history of the matter reveals that the complainant has had notice of the deficiency in his case for many months and has had several opportunities to remedy it.
36. In August 2021, the complainant was directed to file further and better particulars.
37. The dispute was conciliated in the Tribunal. Because of the confidentiality attaching to such occasions, I am not aware of what passed between the parties. It may be that the complainant was put on notice by the respondent or the conciliator as to what the complainant was required to establish. That would be a likely thing to occur in a conciliation. However, such an assumption cannot be made.
38. On 17 December 2021, however, the respondent made it clear in a directions hearing that the further and better particulars were still inadequate to constitute a claim that could be answered. The respondent advised that it had put the complainant on notice by a letter dated 10 December 2021. The summary of the directions hearing included the following record:

Following an earlier directions hearing, the applicant filed further and better particulars with reference to the Equal Opportunity Act 1984 ('the Act'). However, the respondent argues that the document provided by the applicant does not fully particularise how his complaint fits within the legislative framework of the Act. In particular, the respondent submits that there is insufficient particularity of the element necessary to establish indirect discrimination. The respondent has already identified this issue with the applicant in a letter, dated 10/12/21, seeking further particulars of the complaint. > > The respondent seeks an order from the Tribunal in that respect and foreshadows that, if the applicant does not properly particularise the complaint, it will file an application to strike out the complaint.

39. The complainant was directed to file further and better particulars and specified evidence and all other evidence on which he sought to rely, by specified dates. Mr Prescott participated in that hearing on behalf of the complainant.
40. The document that the complainant filed makes the following statements:

The applicant asserts that the respondent discriminates against him and other citizens of South Australia on the grounds of disability in that the respondent treats him unfavourably as a consequence of his particular disabilities (past present and future) and further that the respondent treats him unfavourably because he is not able to comply, as a consequence of his disabilities, with the requirement of the respondent that access to this aquatics resource is restricted to "canoes and/or kayaks and/or certified inflatable". > > ... > > The applicant asserts that the nature of the requirement of access to the Myponga Reservoir only by way of a canoe and/or kayak and/or inflatable vessel is such that a substantially higher proportion of persons who do not have a disability of the type or types that the applicant has and that the requirement of the respondent, as to type of vessels, is not reasonable in the circumstances of the case. The applicant asserts that as a consequence he is treated unfavourably and thereby discriminated against.

41. The phrase "other citizens of South Australia" does not advance the issue of the class within which the complainant must place himself to make a case of indirect discrimination. The implied description that the group is that which contains people with "his particular disabilities (past present and future)" is inadequate where the disabilities are common disabilities which may be experienced in a wide range of severity, and where the less severe may not prevent the use of a kayak or canoe, and where the complainant has not identified the severity of his own disabilities.
42. The assertion that a substantial proportion of persons without his disability or disabilities [can comply with the respondent's requirement] has not been the subject of any evidence adduced or foreshadowed.
43. I have considered whether, if the complainant did not adduce evidence other than that which has been foreshadowed, the Tribunal could rely upon judicial notice to meet the evidentiary gap. I have concluded that, in this matter, it cannot. The propositions that are required to be established are not so notorious or obvious as to be amenable to that.
44. The respondent's application for summary dismissal was a further opportunity for the complainant to address these issues. They were the subject of written submissions provided to the complainant in advance. They were the subject of an oral hearing. The complainant chose not to meet them.
45. Accordingly, the Tribunal concludes that the complaint should be dismissed as having no prospect of succeeding.
46. It should be borne in mind that such an outcome will not always follow from a failure to adduce evidence on the matters required to be proven in a complaint of discrimination. Nor will it often be appropriate for an application for summary dismissal to be brought. Bearing in mind the Tribunal's flexible approach to proceedings, the lack of pleadings, the beneficial nature of the legislation and the fact that complainants are often unrepresented and lacking in understanding of this complex legislation, it will more often than not be appropriate for the Tribunal to allow a matter to proceed even where the complainant's case is unclear and some evidence has not been filed or foreshadowed.
47. This matter has certain unusual features. The complainant is knowledgeable in the use of watercraft and has marshalled a considerable amount of evidence in anticipated rebuttal of the respondent's justification of its policy. The complainant, though not represented, has a learned, legally qualified, highly experienced next friend to assist him. The complainant was provided with multiple opportunities over nearly a year to address the matters that the respondent identified as being necessary to make out a case of indirect discrimination on the ground of disability. The respondent identified that there was a burden associated with justifying the various bases upon which the policy was arrived at such as to make it unreasonable to impose such a requirement where it had not been shown that the complainant could establish that he had been discriminated against.

1. The Tribunal makes the following orders:
   1. The application to summarily dismiss the complaint is granted.
   2. The proceedings are dismissed.

[1] Equal Opportunity Act 1984 (SA) s 85K.

[2] [2014] SASCFC 2.

[4] Pazios & Anor v Pultney Grammar School [2008] SAEOT 7 at [9]- [17]; Marchenko v SA Police [2020] SAET 168 at [40].

[5] Rodgers v Revenue SA, department of Treasury and Finance (State of South Australia) [2014] SASCFC 2 per Stanley J (dissenting) [133].

[6] Pazios & Anor v Pultney Grammar School [2008] SAEOT 7 (Judge Trenordan, Member Jasinski and Member Shetcliffe) [29].

[7] State of Victoria v Rebekah Turner (by her next friend, Anja Turner) [2009] VSC 66 [58].

[8] Rodgers v Revenue SA, department of Treasury and Finance (State of South Australia) [2014] SASCFC 2 per Stanley J (dissenting) [144].

[10] Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92.

[13] Catholic Education Office v Clarke [2004] FCAFC 197 (Tamberlin, Sackville and Stone JJ) at [112].

1. [16] Cf: In the Discrimination Act 1991 (ACT), one part of the definition of disability is "the malfunction, malformation or disfigurement of a part of the body". In the case of Abraham v Thomas [2020] ACAT 41, the complainant adduced no medical evidence but submitted a medical certificate and doctor's notes of a consultation with a GP. In submissions she referred to a sore knee but this was not referenced in the notes or the "pleadings". The Tribunal dismissed the claim insofar as it was based on disability because of the lack of evidence of a disability.

2. [17] When this task was undertaken by the High Court under the Disability Discrimination Act 1992 (Cth) ("DDA") in Purvis v State of New South Wales [2003] HCA 62, the Court found that the operative provision required a comparison between the treatment which the discriminator gives to the complainant and the treatment the discriminator gives to a person without the complainant's disability in circumstances that are the same or are not materially different. The comparator is a person without the disability. The Court emphasised that the particular phrases are critical and that any comparison across legislation in other jurisdictions is fraught: [206] per Gummow, Hayne and Heydon JJ. The operative provisions of the DDA are indeed quite different from those in the EO Act. The DDA refers to a comparison of cases of different person in the same, or not materially different circumstances.

[18] [2002] SASC 171 at [39].

[19] See, for example, the comparator with a person who used an assistance dog was a person who wished to use the same services as the complainant but did not require an assistance dog: Reurich v Club Jervis Bay Ltd [2018] FCA 1220 [240] et seq.