Federal Magistrates Court of Australia|2009-08-06

The Applicant in these proceedings seeks leave to file an Amended Application and Points of Claim. The Respondent opposes leave being granted. Further, the Respondent seeks an order for summary dismissal of the application and Points of Claim under s.17A of the Federal Magistrates Act 1999 (Cth) and rules 13.10(a) and (c) of the Federal Magistrates Court Rules 2001.
The amicus curiae, the Acting Disability Discrimination Commissioner, does not oppose the application for leave to file an Amended Application and Points of Claim and does not support the application for summary dismissal.
The matters were heard together.

The basis of the Applicant's substantive claim is set out in his affidavit filed on 8th June 2007. He has a permanent physical incapacity affecting his left arm and left leg, arising out of motor vehicle accident. He deposed that he suffers from a severe sleep disorder which requires him to use a sleep machine to regulate his breathing.

Ms Eastman of counsel, who appeared for the Respondent, submitted that the principal issue for determination is whether the Applicant should be permitted to make allegations of unlawful discrimination that were not included in the complaint terminated by the Human Rights and Equal Opportunity Commission[2].
The Respondent opposes the application for leave to file an Amended Application and Points of Claim because:
1. The Federal Magistrates Court does not have jurisdiction because the Amended Application and Points of Claim plead facts and issues that were not the subject of the complaint terminated by HREOC; and
2. The Court does not have jurisdiction where the alleged discriminatory acts or practices occurred outside Australia.
The Applicant's claim is brought under sub-section 46PO(3) of the Human Rights and Equal Opportunity Commission Act 1986. It was submitted that the meaning and effect of sub-section 46PO(3)(a) and (b) are that allegations of fact being made in the proceeding before the Court are the same as those made in the terminated complaint. However, different facts may be alleged if they are not different in substance from the facts formerly alleged. The Applicant may claim that the facts subsequently being alleged bear a different legal character provided that the legal character arises out of the facts subsequently being alleged (Charles v Fuji Xerox[3] at [37]-[39]; see also Gama v Qantas Airways Ltd at [9]).
The starting point is to determine what are the parameters of the complaint that has been terminated (Hollingdale v Northern Rivers Area Health Service[4] at [10]), taking into consideration the shape that the complaint had assumed at the time of its termination (Travers v New South Wales[5] at [8]; Paramasivam v O'Shane & Ors[6] at [21]; Bender v Bovis Lend Lease Pty Ltd[7]; Rispoli v Merck Sharpe & Dohme & Ors[8]).
The Respondent submits that the Amended Application and Points of Claim plead matters that are not the same as, or the same in substance as, the terminated complaint to HREOC.
In particular, the Applicant claims in his Points of Claim discrimination on the grounds of:

depression; 2. post-traumatic stress disorder; and

the use of palliative and therapeutic devices and auxiliary aids as a consequence of (a) and (b) above
The Respondent submits that sub-section 46PO(3) of the Human Rights and Equal Opportunity Commission Act has not been satisfied because the unlawful discrimination is not the same as, or the same substance as, the unlawful discrimination that was the subject of the complaint to HREOC, which is required by s.46PO(3)(a). Further, the discrimination does not arise out of the same, or substantially the same, acts, omissions or practices the subject of the complaint to HREOC, which is required by s.46PO(3)(b).
Counsel for the Respondent also submits that the Applicant's claim has shifted from a complaint about the provision of a "service" to a complaint about the terms of a contract of carriage. The contract of carriage, subject to the Respondent's Conditions of Carriage, is pleaded in the Points of Claim.
Ms Eastman submitted that the Applicant alleges that the Conditions of Carriage constitute a discrimination against him. She further submitted that:
1. This claim is misconceived as a matter of law; and
2. The test in s.46PO(3) is not satisfied in this regard.
First, it is submitted, there is no reference in the Applicant's complaint to HREOC to either:
1. A contract between the Applicant and the Respondent; or
2. The Respondent's Conditions of Carriage.
The acts relied upon as discriminatory and in breach of ss.5 and 7 of the Disability Discrimination Act are the acts of individual Qantas employees at Sydney and Mumbai Airports. Presumably, the Applicant's allegation is that the Respondent was vicariously liable for the discriminatory conduct of its staff at those two airports.
Second, it is submitted that the Applicant's claim misconceives the operation of the Disability Discrimination Act. The Act does not make discrimination at large unlawful, only in particular fields of activity. Alleged discriminatory terms in a contract per se are not actionable; the claim has to be referable to a particular relationship between the parties (see Spencer v Dowling[9]), which is defined by activity and not by the terms of a contract.
Ms Eastman submitted that the starting point is the identification of the "service" as defined by s.4 of the Disability Discrimination Act. This is a question of fact (see Waters & Ors v Public Transport Corporation[10]) and involves identifying:

The service provider; 2. The location where the service is provided; and

The nature of the service.
The Disability Discrimination Act does not make terms and conditions unlawful per se.
Third, it is submitted that the Applicant's claim misconceives the nature of a contract of carriage vis a vis airline travel, as does the submission of the Acting Disability Commissioner. Ms Eastman referred to MacRobertson Miller Airline Services v Commissioner of State Taxation (WA)[11] where Barwick CJ held at 133 that the issue of a ticket by an airline operator neither constitutes an agreement nor a memorandum of an agreement. Stephen J at 140 and Jacobs J at 145 made similar findings. An airline ticket is an offer capable of acceptance but it is not the actual agreement of carriage or a memorandum of that agreement (per Jacobs J at 146).
The High Court's approach has been followed in Imaje v Taylor[12] at [30] and Fattouh v Gulf Air Company GSC & Anor[13] at [33] (see also Vertzayas v Singapore Airlines Ltd[14]).
Counsel for the Respondent submitted that the Applicant seeks to amend his application by adding to his claim of unlawful discrimination in the provision of goods, services and facilities in contravention of s.24 of the Disability Discrimination Act a further claim of discrimination in the provision of access to premises in contravention of s.23 of the Act.
Whilst the Applicant submits that this claim is no different in substance to, or arises out of the same acts, omissions or practices, as his previous claims, ss.23 and 24 of the Act are mutually exclusive. The Respondent submitted that it was not apparent how essentially the same conduct could be relied on as contravening mutually exclusive provisions (see Fernely v Boxing Authority of NSW[15] at [58]).
Counsel for the Respondent also submitted that the claim under s.23 of the Act relates to conduct of Qantas staff in Mumbai and, as the conduct complained occurred wholly outside Australia, the amendment of the application to include that claim should not be allowed. The submission is that the Disability discrimination Act does not extra-territorially.
In support of this submission, Ms Eastman referred the Court to Lindisfarne R & SLA Sub-Branch and Citizens' Club Inc & Anor v Buchanan[16] at [31] in relation to the Anti-Discrimination Act 1998 (Tas), as to the presumption that legislation is presumed not to have extra-territorial effect.
In Brannigan v Commonwealth of Australia[17] at [19] the Federal Court rejected the submission that the beneficial objects of the Disability Discrimination Act meant that the legislation should not be construed territorially.
Whilst the Applicant submitted that s.12 of the Disability Discrimination Act provides for the extra-territorial operation of the Act in some circumstances or in relation to the acts of some persons and entities, the Respondent submitted that the decision in Brannigan v Commonwealth of Australia indicates that the terms of subsection 12(12) are not sufficient to reverse the common law presumption that the Act does not operate extra-territorially.
As to the Applicant's application to amend his application so as to rely upon s.32 of the Act (contravention of a "disability standard"), counsel for the Respondent submitted that he should not be allowed to do so because the original complaint to HREOC was limited to claims under ss.6, 7 and 24 of the Act. Even if the application were allowed, the claim under s.32 would not satisfy the test in sub-section 46PO(3) of the HREOC Act.
As to the Applicant's claim under the Disability Discrimination Act that his contract with the Respondent constituted unlawful discrimination, the Respondent submits that the Civil Aviation (Carriers' Liability) Act 1959 (Cth) prevents him from seeking damages under the Disability Discrimination Act.
Referring to Air Link Pty Ltd v Paterson[18] and Shipping Corporation of India Ltd v Gamlen Chemical Co (Australasia) Pty Ltd[19], counsel for the Respondent submitted that if the Applicant seeks to rely on the Conditions of Carriage as the basis for his claim and seeks damages with respect to the loss of his baggage at Mumbai Airport, he must bring his claim for loss under the Civil Aviation (Carriers' Liability) Act and not the Disability Discrimination Act.
The Respondent submits that the application to amend the Application should not be permitted. As the Disability Discrimination Act does not have extra-territorial operation, the Applicant's claims about treatment at Mumbai Airport do not fall for determination by an Australian court. Further, the Respondent seeks an order to dismiss the Application and Points of Claim. The Respondent referred the Court to the decisions of Turner FM in Peacock v Human Rights and Equal Opportunity Commission[20] and Cameron FM in Dowling v John Fairfax Publications Pty Ltd[21] as to the applicable case law and principles to be applied in an application for summary dismissal.

Counsel for the Applicant, Mr Batley, agreed with the Respondent's counsel's characterisation of this case as one about excess baggage but submitted that the Respondent was wrongly trying to confine the Applicant's complaint in time and place to events that occurred on 8th June 2005 in Mumbai. Those events did not occur in isolation but arose within the context of a relationship between the Applicant and the Respondent brought into being by the Applicant making arrangements to travel using the Respondent's services. Those services, he submitted, fell within the control of the Disability Discrimination Act from the time that the Applicant commenced to make those arrangements and sought to use that service.
As to whether leave to amend should be granted, Mr Batley submitted that the power to amend, in this case an application, is provided by Rule 7.01 of the Federal Magistrates Court Rules. There is no qualification on the rule and the ultimate consideration is the interests of justice (_SZGTE v Minister for Immigration and Multicultural Affairs[22]_at [34]).
The Applicant submitted that the amendments sought to be made do not take the claim outside the scope of the matters raised during the consideration of the Applicant's complaint by the Human Rights and Equal Opportunity Commission. The proposed amendments suggest that the facts alleged in the complaint have a different legal character, involving issues under ss.4, 6, 7, 12, 23, 24, 31 and 32 of the Disability Discrimination Act.
Counsel for the Applicant submits that the allegation in the proposed amended application that the Respondent's Conditions of Carriage had an unlawful discriminatory effect is not different in substance from the matters raised in the Applicant's statutory declaration forwarded to HREOC on 10th January 2007.
On the accepted approach to the scope of sub-section 46PO(3) the Applicant refers to the decision of Raphael FM in Gama v Qantas Airways Ltd[23], where his Honour said at [9]:
- What one can extract from these decisions is that a party can make an allegation that a particular act referred to in the complaint constitutes a different breach of an Anti-discrimination Act that that originally alleged or possibly even considered by HREOC.
Counsel for the Applicant submitted that there is nothing in the proposed amendments which raise issues of substance not disclosed in the documents annexed to the Applicant's affidavit. The factual underpinning of the legal issues raising questions about the Conditions of Carriage, indirect discrimination, access to premises and disability standards was before HREOC in the documents constituting the Applicant's complaint. Thus, granting leave top amend would not be futile because the proposed amendments did not exceed the limits imposed by sub-section 46PO(3).
As to the territorial limits of the Disability Discrimination Act,

Mr Batley submitted that, whilst the Court is bound by the decision in Brannigan v Commonwealth of Australia[24], it would be taking that decision too far to treat it as having conclusively determined that the Disability Discrimination Act can never be concerned with conduct occurring outside Australia. This is because O'Loughlin J in Brannigan v Commonwealth of Australia was dealing with a question of employment by the Commonwealth and did not refer to sub-sections 12(9), (10) or (12). 8. It was submitted that the ratio decidendi in Brannigan is that the Sex Discrimination Act 1984, the Disability Discrimination Act 1992 and the Racial Discrimination Act 1975 do not apply to discrimination in employment by the Commonwealth occurring outside Australia. 9. However, even if the Court were to take the view that there is no room for the Disability Discrimination Act to have any operation relating to events occurring outside Australia, it was submitted that the proposed amendments raise claims about discriminatory conduct within Australia. The Applicant claims that the relationship between himself and the Respondent was based on a contract entered between them in Sydney. 10. Again, the Applicant seeks to amend his Application to claim unlawful by breach of a disability standard made under s.31 of the Disability Discrimination Act contrary to s.32 of that Act. The Disability Standards for Accessible Public Transport 2002 provide that disability aids are to be in addition to normal baggage allowances. 11. The Applicant argues that an amendment allowing the Applicant to argue that point would not be plainly futile. The proposed amendments raising indirect discrimination and discrimination relating to palliative and therapeutic devices do not involve any question of extra-territoriality. 12. As to summary dismissal, Mr Batley submitted that the Respondent bears a heavy onus to satisfy the Court either the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim, or that the proceeding or claim is an abuse of the process of the Court. 13. The Applicant's submissions in reply filed on 1st May 2008 referred to the principles for determining an application for summary dismissal set out in the decision of Driver FM in Vivid Entertainment v Digital Sinema Aust Pty Ltd[25] at [30]. Driver FM also referred to the decision of Tamberlin J in Hicks v Ruddock[26] at [12]-[13]: * In a case where evidence can give colour and content to allegations and where questions of fact and degree are important, the Court should be more reluctant to dismiss a proceeding on the face of a pleading. 14. As to the Respondent's first basis for summary dismissal, that the Court has no jurisdiction with respect to matters that occurred outside Australia, the Applicant submits that: 1. The conduct complained of is connected to Australia in a way contemplated by s.12(2) of the Disability Discrimination Act. 2. The allegation of discrimination in the Respondent's standard Terms and Conditions of Carriage is conduct that occurred in Australia when the contract was entered into; the claim of discrimination under s.24 of the Disability Discrimination Act does not require amendment of the application and does not necessarily depend on any conduct by the Respondent in India. 15. The Applicant complains that the Respondent discriminated against him contrary to s.24(b), although the complaint could also be seen as raising s 24(c). 16. As to sub-section 46PO(3) of the Human Rights and Equal Opportunity Act, the Applicant concedes that he did not include claims of depression and post traumatic stress disorder as disabilities but says that his complaint made it clear that he had a number of disabilities with different needs. 17. Again, the Applicant submits that, whilst his claims of contravention of sections 7, 23 and 32 of the Disability Discrimination Act were not adverted to in his complaint to HREOC, these matters fall within the scope of s.46PO(3) because substantially the same factual basis for the claim was disclosed in the complaint. Further, sub-section 46PO(3)(b) * permits the applicant to claim that the facts which are now being alleged bear a different legal character than the facts which were alleged in the complaint were claimed to bear, even if that legal character is different in substance from the legal character formerly being claimed, provided that that legal character "arise[s] out of" the facts which are now being alleged.[27] 18. Mr Batley submitted for the Applicant that the Respondent had not filed any evidence in support of its contention that the Applicant's claim was an abuse of process. It is not being brought for a collateral purpose. It is not "foredoomed to fail" (see Walton v Gardiner[28] at 393 [23]).

The Acting Disability Discrimination Commissioner's Submissions

Counsel for the Acting Disability Discrimination Commissioner, Mr Lenehan, submitted that "Unlawful discrimination" as defined in s.3 of the Human Rights and Equal Opportunity Commission Act is the "jurisdictional hinge" about which the provisions conferring jurisdiction upon the Court turn.[29] If the matters giving rise to unlawful discrimination are alleged to have taken place in Australia that is sufficient to establish jurisdiction and no question of extraterritoriality arises.
A contravention of ss.23(1)(b) and 24(1)(b) of the Disability Discrimination Act constitutes "unlawful discrimination" as defined in s.3 of the Human Rights and Equal Opportunity Commission Act. To make out such a contravention, it is sufficient that there has been a communication to, or an imposition upon, an aggrieved person of discriminatory terms or conditions. Mr Lenehan submitted that it did not appear to be in dispute that there was at least an offer by the Respondent to the Applicant, which the Applicant claims was an offer of access to premises or provision of services on discriminatory terms or conditions.
Thus, it is submitted that:

The acts of unlawful discrimination alleged in the Applicant's claims or proposed claims under ss.23(1)(b) and 24 (1)(b) took place wholly in Australia. 2. It is unnecessary to determine whether the Disability Discrimination Act has any extraterritorial application or whether the parties entered into any contractual relationship within Australia.

Subject to any other objection, the Court has jurisdiction to hear the Applicant's claims or proposed claims.
Further, Mr Lenehan submitted that the application of the Disability Discrimination Act to the Applicant's claims is unaffected by the Civilian Aviation (Carriers' Liability) Act 1959, the Convention for the Unification of Certain Rules Relating to International Carriage by Air and the Protocol done at Montreal on 25th September 1975 ("Montreal Protocol No 4").

Counsel for the Applicant submitted that the matters pleaded in the Amended Application and Points of Claim were sufficiently the subject of the terminated complaint to satisfy s.46PO of the Human Rights and Equal Opportunity Commission Act.
The Applicant's complaints that the Respondent failed to accommodate his disability aids was clearly identified. It was clear from his complaint that he had multiple disabilities. Further, the failure to accommodate the Applicant's palliative and therapeutic devices and auxiliary aids for depression and post traumatic stress disorder arises out of the same acts, omissions or practices of the Respondent in failing to accommodate his disability aids for sleep apnoea and his leg and shoulder injuries that were the subject of the complaint to HREOC.
Further, the Applicant claims that the Respondent's acts, practises or omissions of requiring passengers to comply with the baggage allowance in its conditions of carriage were applied to him with discriminatory effect. As there is no suggestion that Qantas staff were doing anything other than applying Qantas policy means, it is submitted, that Qantas is primarily liable for the acts omissions and practices.
In particular, when referring to the Applicant's factual claims,

Mr Batley submitted that it would be inappropriate for the Court dealing with summary dismissal to make findings adverse to the Applicant on important questions of fact that should be determined at trial.

In my view, the question of whether the Applicant should be given leave to file an Amended Application and Points of Claim should be considered before the Court considers the question of summary dismissal.

The Applicant lodged his original complaint to the Human Rights and Equal Opportunity Commission on 17th July 2006. A copy of that complaint is annexed to the Applicant's affidavit filed on 8th June 2007.
In that claim, the Applicant said that he had been discriminated against:
1. Because he has a disability; and
2. Because of his race and ethnicity.
He complained about the actions of the Qantas Airport Manager at Mumbai, a Mr Sundaram. The Respondents to the complaint were Qantas and a Customer Care Executive for Qantas, a Mr Mauger. The substance of his complaint is that he is a disabled person who sustained injuries to his left knee and left arm, necessitating the use of crutches for walking. He also claimed to have a sleep disorder which requires him to use a sleep machine daily.
The Applicant stated that he had no difficulty when checking in his luggage at Sydney for his flight to Mumbai. He also stated that he had no difficulty in checking in his luggage when he travelled on internal flights within India. No claim was made that he should pay an excess baggage allowance on any of those flights.
However, the Applicant complained that when he attempted to check in his baggage at Mumbai airport for his return flight to Sydney the counter staff informed him that his baggage was 15 kilograms in excess of the baggage allowance. He claimed that he was required to:
1. re-pack his baggage; and
2. leave some of his belongings at the Qantas airport manager's office at Mumbai airport.
The Applicant claimed to have suffered both economic loss and mental worries, including continuing trauma arising from the discriminatory treatment he had received.
The Applicant sought the following outcomes:
- 1. An order or direction on the respondents to return back my baggage and personal items forthwith or in the alternative to pay $2,000.00 as compensation.
- 2. A compensation of $100,000.00 or any reasonable and adequate amount as compensation for this discriminatory treatment and for the pain and sufferings and losses determined by the Commission.
- 3. An order that the treatments by the Respondents are discriminatory and to be dealt according to law and the powers vested with the Commission.
- 4. An order or direction on the respondents to stop this kind of discriminatory treatment forthwith and never to be encouraged in their establishment, so that disabled persons like will not become victims in the future.
- 5. Any other order to deal with the respondents for vilification in public and harassment.[30]
The Applicant amended his complaint on 10th January 2007. A copy of that amended complaint is contained in Annexure F to his affidavit. The Applicant's statutory declaration referred to his claim under the Human Rights and Equal Opportunity Commission Act 1986, the Disability Discrimination Act 1992 and the Racial Discrimination Act 1975.
In that statutory declaration he denied that he had been rude, belligerent or difficult.
The Applicant advised that his travel agent had informed Qantas prior to his departure that he required to take certain items with him:

Canadian Type Crutches (weighing approximately 5kgs); 2. A sleep machine (weighing approximately 10kgs);

Braces, splints and medications (weighing more than 5 kgs); and

A manually operated wheelchair (weighing approximately 20kgs).[31]
The Applicant declared that he was not allowed to take his wheelchair with him when he boarded the flight in Sydney on 23rd March 2005 and he was obliged to board and depart with one provided by the airline.
The Applicant stated in his statutory declaration:
- 13. Qantas Staff should understand that a different or special accommodation or services may be required by the passenger with a disability. Placing a disability passenger in the same position of a normal passenger and treat the disabled passenger's auxiliary aid as excess baggage and claim additional excess charges is discriminatory treatment...and in violation of sections 5 and 7 of the Disability Discrimination Act 1992 (Cth).[32]
The Applicant also submitted:
- The case Brannigan v Commonwealth of Australia [2004] FCA 1591 was decided by a single judge of the Federal Court and has a limited application on the question of express or implied extra-territorial jurisdiction of the Disability Discrimination Act 1992 (the 'DDA'), and the Racial Discrimination Act 1975 (the 'RDA'). This is a matter that should be finally decided by the High Court of Australia. In any event that case must be distinguished from the facts in my complaint.[33]

On 11th May 2007 the Human Rights and Equal Opportunity Commission terminated the Applicant's complaint. The delegate of the President noted the Applicant's submission that the principle in Brannigan v Commonwealth[34] that the Disability Discrimination Act does not apply extra-territorially was not a settled principle and that an appeal from the decision of this Court in Clarke v Oceania Judo Union[35] may confirm that Brannigan's Case was wrongly decided.
The delegate noted that leave was granted to the Applicant under s.46PA to include the Applicant's complaint about discrimination at Sydney Airport on 23rd March 2005, when he claimed that he was told he would not be allowed to board the flight if he wanted to take his wheelchair with him.
The delegate found that:

The Applicant's complaint of unlawful discrimination in the provision of goods, services and facilities at Mumbai under the Disability Discrimination Act and Race Discrimination Act was not unlawful discrimination. 2. The complaint against Qantas of alleged discrimination in the provision of goods, services and facilities under the Disability Discrimination Act in Sydney was lodged more than 12 months after the alleged unlawful discrimination took place.

The complaint against Qantas and Mr Mauger of alleged discrimination in provision of goods, services and facilities under the Disability Discrimination Act was lacking in substance.
The claims were terminated under s.46PH(1)(a), 46PH(1)(b) and 46PH(1)(c) of the Human Rights and Equal Opportunity Commission Act respectively.
The delegate's reasons for terminating the Applicant's claim arising out of the incident in Mumbai were that the decision in Brannigan is the leading authority for the proposition that the Disability Discrimination Act and the Race Discrimination Act do not have extra-territorial effect. The delegate stated:
- Although there is a connection between the services you received and Australia, the conduct complained of occurred entirely outside Australia and the DDA and RDA do not apply. Therefore the Commission does not have jurisdiction to deal with this complaint.[36]
The Applicant's complaint about the incident when he was boarding the aircraft in Sydney on 23rd March 2005 was dismissed because the complaint was lodged more than 12 months after the alleged unlawful discrimination took place. The delegate noted that the complaint was not raised until it appeared in the Applicant's statutory declaration made on 10th January 2007.
The Applicant's complaint about Mr Mauger, the Qantas Customer Care Executive was dismissed because the delegate was satisfied that the letters written to the Applicant by Mr Mauger were not discriminatory. Consequently, the delegate found that the Applicant's complaint was lacking in substance.

The draft Amended Application seeks to define the Applicant's claim as:
- The Respondent has discriminated against me in that its Conditions of Carriage failed to reasonably accommodate carriage of my mobility aids and other essential equipment, including medications and sleep machine without the payment of excess baggage charges.
- In doing so the Respondent has unlawfully discriminated against me in the provision of goods and services and access to premises on the grounds of my disability and has contravened the Disability Standards for Accessible Public Transport 2002.
The original application stated that sections 5, 6, 11 and 24 of the Disability Discrimination Act were relevant to the Applicant's claim. The proposed Amended Application seeks to add sections 4, 7, 12, 23, 31 and 32 of the Disability Discrimination Act whilst deleting the reference to section 5 of the Act.

The Applicant's Points of Claim state that he suffers from the following disabilities:
- 2.1 Partial loss of function of his left arm;
- 2.2 Partial loss of function of his left leg;
- 2.3 Sleep apnoea;
- 2.4 Depression; and
- 2.5 Post-traumatic Stress Disorder
The Points of Claim state that the purchase of a ticket by the Applicant created a contract between the Applicant and the Respondent subject to the Conditions of Carriage. It is claimed that the Respondent by its Conditions of Carriage discriminated against the Applicant on the grounds of his disabilities within the meaning of sections 6, 7, 23 and 24 of the Disability Discrimination Act.
It is also claimed that the Respondent contravened the Disability Standards for Accessible Public Transport guidelines 2004 contrary to section 32 of the Disability Discrimination Act.

Whether the facts and issues pleaded were the subject of the terminated complaint

It appears to me that the case that the Applicant wishes to argue in his Amended Application is significantly different from his original claim.
The jurisdiction of the Court to hear the application is determined by sub-section 46PO(3) of the Human Rights and Equal Opportunity Commission Act, which says:
- The unlawful discrimination alleged in the application:
  - (a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or
  - (b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.
It is clear that s.46PO(3)(a) requires the Applicant to make the same allegations of fact that he made in the terminated complaint, although he may claim that they bear a different legal character, provided that the legal character now being claimed is not different in substance from that originally claimed (Charles v Fuji Xerox Australia Pty Ltd[37] per Katz J at [38]).
Again, s.46PO(3)(b) allows the Applicant to allege different facts from those alleged in the terminated complaint, provided that those facts are not different in substance. However, the Applicant may claim that the facts now being alleged have a different legal character, even if that legal character is different in substance, provided that the legal character arises out of those facts (Charles v Fuji Xerox Pty Ltd at [39]).
As Raphael FM held in Gama v Qantas Airways Ltd[38] at [9]:
- What one can extract from these decisions is that a party can make an allegation that a particular act referred to in the complaint constitutes a different breach of an Anti-discrimination Act than that originally alleged or possibly even considered by HREOC. It is also clear that what constitutes the "complaint" is not just the written document but all those facts and matters which are before the commission prior to the determination. But the allegations made in proceedings cannot be substantially wider than those initially complained of.
Thus, the Court must begin by considering the "parameters of the complaint" (Hollingdale v Northern Rivers Area Health Service[39] per Driver FM at [10]).
Clearly, in the present case, the Court must consider the Applicant's claim after it was amended and as it was when it was terminated by HREOC on 11th May 2007. In my view, the claim that the Applicant now wishes to bring in the Amended Application and Points of Claim is significantly different, to the extent that it is outside the limits of sub-section 46PO(3).
The Applicant originally claimed that his disabilities were injuries to his left knee and arm, as well as a sleep disorder. Depression and post-traumatic stress disorder, which he now seeks to claim, were never mentioned in his complaint to HREOC.[40] It is not until the Points of Claim that the Applicant claims discrimination on the basis of these disabilities.
The additional disabilities that the Applicant now claims, and the discrimination directed towards him on that basis, are substantially different from those originally claimed in the terminated complaint. There does not appear to be any difference in the palliative and therapeutic devices and auxiliary that the Applicant claims to have required.
I am therefore satisfied that the unlawful discrimination sought to be claimed in the Amended Application is not the same as, or the same in substance as, the unlawful discrimination the subject of the complaint that was terminated by HREOC. Accordingly, it does not come within the ambit of s.46PO(3)(a).
Further, the Applicant now seeks to rely on a contract between himself and the Respondent subject to the Respondent's Conditions of Carriage. This was never raised in the claim terminated by HREOC.
The Applicant also seeks to claim in his Amended Application that the Respondent unlawfully discriminated against him in the provision of access to premises on the grounds of his disability and contravened the Disability Standards for Accessible Public Transport 2002. These issues were never raised in the claim terminated by HREOC.
The Applicant's claim to HREOC alleged that the Respondent had unlawfully discriminated against him in breach of ss.5, 6, 11 and 24 of the Disability Discrimination Act. He refers to those same four sections in his application filed on 8th June 2007.
He now seeks to widen his case to claim unlawful discrimination contrary to ss.4, 7, 12, 23, 31 and 32 of the Act.
The claim of discrimination in access to premises is made under s.23 and the claim of failure to comply with the Disability Standards for Accessible Public Transport Guidelines is made under s.32 of the Act.
I accept the Respondent's submission that ss.23 and 24 of the Act are mutually exclusive. Sub-section 23(1) relevantly provides:
- It is unlawful for a person to discriminate against another person on the ground of the other person's disability or a disability of any of that person's associates:...
  - (b) in the terms or conditions on which the first-mentioned person is prepared to allow the other person access to, or the use of, any such premises;...
Subsection 24(1) relevantly provides;
- It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's disability or a disability of that other person's associates:...
  - (b) in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to that other person; or
  - (c) in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person....
It follows that the Applicant cannot rely on essentially the same conduct in a claim under two mutually exclusive sections.
The premises which the Applicant claims that were the subject of the Respondent's refusal to allow him access were constituted by an aircraft on the ground in India. The refusal alleged by the Applicant happened entirely in India, at Mumbai Airport. The Applicant also faces the difficulty in establishing that the Disability Discrimination Act has an extra-territorial effect, which will prove to be an insuperable hurdle.
In my view, leaving aside the question of extra-territoriality for the time being, the facts upon which the Applicant now seeks to bring his claim are not the same or substantially the same as those in the complaint terminated by the Human Rights and Equal Opportunity Commission.
The proposed amendments to the application are outside the limits of s.46PO(3) of the HREOC Act. Under s.46PO(3):
- The unlawful discrimination alleged in the application:
  - (a) must be the same as (or the same substance as) the unlawful discrimination that was the subject of the terminated complaint; or
  - (b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.
Where the unlawful discrimination alleged does not meet the test in sub-section 46PO(3), the Court has no jurisdiction to hear the application. As I am satisfied that the unlawful discrimination alleged in the Amended Application and the Points of Claim does not come within the boundaries of s.46PO(3), it follows that granting leave to amend the application would be futile.
The application for leave to file the Amended Application and Points of Claim will be refused.

On 10th October 2007 the Respondent filed a Response in a Case in reply to the Application in a Case filed by the Applicant. In addition to opposing the application to amend the application, the Response also seeks an order under Rule 13.10(a) and (c) of the Rules to dismiss the Application and Points of Claim.
The Respondent relies on the following grounds:
1. The Disability Discrimination Act 1992 (Cth) does not operate extra-territorially with respect to alleged conduct in India. Accordingly, the Court has no jurisdiction with respect to conduct alleged to have occurred in India.
2. The Points of Claim are not confined to the matters which were the subject of the terminated complaint and do not conform to the requirements of section 46PO(3) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth). In particular:
  1. In paragraph 2.4, the Applicant raises 'depression' as a claimed disability;
  2. In paragraph 2.5, the Applicant raises 'post-traumatic stress disorder' as a claimed disability;
  3. In paragraph 9, the Applicant pleads a contravention of section 7 of the Disability Discrimination Act;
  4. In paragraph 10, the Applicant pleads a contravention of section 23 of the Disability Discrimination Act; and
  5. In paragraph 12, the Applicant pleads a contravention of section 32 of the Disability Discrimination Act.
The Respondent relies on rule 13.10(a) and (c):
- The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
  - (a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or...
  - (c) the proceeding or claim for relief is an abuse of the process of the Court.
It should be made clear at this point that there is no evidence that would lead the Court to find that the Applicant's substantive application is an abuse of process.
It is relevant to consider the provisions of s.17A of the Federal Magistrates Act, which provides:
- (1) The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
  - (a) the first party is prosecuting the proceeding or that part of the proceeding; and
  - (b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
- (2) The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
  - (a) the first party is defending the proceeding or that part of the proceeding; and
  - (b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
- (3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be;
  - (a) hopeless; or
  - (b) bound to fail;

for it to have no reasonable prospect of success.

(4) This section does not limit any powers that the Federal Magistrates Court has apart from this section.

It follows that the matter for decision is whether the Applicant has a reasonable prospect of successfully prosecuting his application. Of course, the application to be considered is the original application filed on 8th June 2007, as the application to amend has been dismissed.
The points of Claim have already been dealt with at [99]-[115] above.
The Applicant's original Application claims that the Respondent unlawfully discriminated against him in contravention of sections 5, 6, 11 and 24 of the Disability Discrimination Act. The claim is that:
- In early 2005 I purchased a return air ticket from Qantas to travel from Sydney to Mumbai, India and return. I commenced my journey on 23 March 2005 when I left Sydney and returned to Australia on a Qantas flight leaving Mumbai, India on 8 June 2005.
- The Respondent has discriminated against me in that it refused to reasonably accommodate carriage of my mobility aids and other essential equipment, including medications and sleep machines, without payment of excess baggage charges.
- In so doing the Respondent has unlawfully discriminated against me in the provision of goods and services on the grounds of my disability.
In my view, the entirety of the Applicant's claim relates to his treatment at Mumbai Airport in India. In order for his claim to succeed, the Applicant must establish that the Disability Discrimination Act applies outside Australia. The Delegate of the President of the Human Rights and Equal Opportunity Commission dismissed the Applicant's claims on the basis that the Act did not apply extra-territorially, relying on the decision in Brannigan v Commonwealth of Australia.
Counsel for the Applicant submitted that the findings in Brannigan are limited to the facts of the case itself, applying to Commonwealth employees working outside Australia and that s.12 of the Disability Discrimination Act can provide for the extra-territorial operation of the Act in some circumstances.
In order for the Disability Discrimination Act to apply, there must be shown to be a discriminatory act or practice. Section 5 of the Act provides:
- Disability Discrimination
  - (1) For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.
  - (2) For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability.
Section 7 of the Act deals with the case of a person, like the Applicant in this case, who requires the use of aids or devices:
- For the purposes of this Act, a person (discriminator) discriminates against another person with a disability (aggrieved person) if the discriminator treats the aggrieved person less favourably because of the fact that the aggrieved person is accompanied by, or possesses:
  - (a) a palliative or therapeutic device; or
  - (b) an auxiliary aid;
- that is used by the aggrieved person, or because of any matter related to that fact, whether or not it is the discriminator's practice to treat less favourably any person who is accompanied by, or is in possession of, and is the user of:
  - (c) such a palliative or therapeutic device; or
  - (d) such an auxiliary aid.
The discriminatory act upon which the Applicant relies is the refusal of the Qantas Manager and other staff at Mumbai Airport to allow him to take all his baggage onto the aircraft without paying the excess baggage charge of some $600.00. This act occurred in India, not in Australia.
Unless he can show that the Disability Discrimination Act has an extra-territorial operation, the Applicant's claim cannot succeed.
As counsel for the Respondent has submitted, there is a common law presumption against the extra-territorial operation of legislation. In Jumbunna Coal Mine, No Liability v Victorian Coal Miners' Association[41], O'Connor J held at 363:
- In the construction of general words in a Statute there is always a presumption that the legislature does not intend to exceed its jurisdiction. Most Statutes, if their general words were to be taken literally in their widest sense, would apply to the whole world, but they are always read as being prima facie restricted in their operation within territorial limits.
In Brannigan v Commonwealth of Australia, O'Loughlin J considered whether the Racial Discrimination Act 1975, the Sex Discrimination Act 1984 and the Disability Discrimination Act 1992 had extra-territorial operation. His Honour rejected the argument for the Applicant that there was an implied grant of extra-territorial jurisdiction in each of those Acts.
In dealing with the Disability Discrimination Act, O'Loughlin J rejected the applicant's argument that the beneficial objects of the legislation should not be construed territorially. He noted the reference to the International Labour Organisation Convention No 111 concerning Discrimination in respect of Employment and Occupation 1958 done at Geneva on 25 June 1958 and the International Covenant on Civil and Political Rights 1966 done at New York on 19 December 1966 and the Applicant's submission that it was open to the Court to imply that the Disability Discrimination Act stretched out beyond the borders of Australia into international areas. His Honour held at [19]:
- That is not my understanding of the reference to the ILO Convention and to the Covenant. As I understand it Australia, in passing this legislation, was acknowledging its commitments to the ILO Convention and to the Covenant; that is a long way short of any proposal that Australia was intending that its legislation would have extra-territorial effect.
O'Loughlin J then turned to the similarity between s.9(2) of the Sex Discrimination Act and s.12(2) of the Disability Discrimination Act, both of which say "Subject to this section, this Act applies throughout Australia" and said at [21]:
- I can see no difference in the two corresponding subsections of the Acts; they are, in my opinion words of limitation that favour the conclusion that there is no extra-territorial effect.
His Honour considered and rejected the argument that the extra-territorial reference in s.12(8) of the Act which refers to the convention and the covenant and refers in s.12(8)(d) and (e) to "matters external to Australia" and "international concerns", saying that it did not give the Applicant in that case any assistance as her fundamental complaint of discrimination was one of discrimination in employment which is covered by s.15 and:
- ...there is nothing in s.15 which suggest that it relates to "matters external to Australia" or to matters "of international concern".[42]
In my view, that reference offers little assistance to the Applicant's claim that the decision in Brannigan applies only to Commonwealth employees or matters relating to discrimination in employment. The Court held at [27]:
- In my opinion the Commonwealth has made good its claim that neither the Sex Discrimination Act, nor the Disability Discrimination Act nor the Racial Discrimination Act have extra-territorial effect.
I am satisfied that the decision in Brannigan clearly shows that this Court has no jurisdiction to hear a claim about discrimination that arose in Mumbai in India and is entirely confined to matters that occurred there. The Disability Discrimination Act has no extra-territorial effect. Had that been the intention of the legislature, then it would have been clearly stated in the legislation.
The effect on the Applicant's case is that it has no reasonable prospect of success. The Applicant has no reasonable prospect of successfully prosecuting the application and the test in rule 13.10(a) has been met.
I am not satisfied that rule 13.10(c) applies; the application is not to my mind an abuse of the process of the Court.
As I am satisfied that the Applicant has no reasonable prospect of successfully prosecuting his application, it is appropriate to give judgment for the respondent against the Applicant (Federal Magistrates Act 1999, s.17A(2)).
The application will therefore be dismissed.
I will hear submissions as to costs.

I certify that the preceding one hundred and forty-one (141) paragraphs a true copy of the reasons for judgment of Scarlett FM

[27] Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 153 at [39]

[28] (1993) 177 CLR 378; [1992 ] HCA 12

[29] Old UGC Inc v Industrial Relations Commission of New South Wales in Court Session (2006) 225 CLR 274; 80 ALJR 1018; [2006] HCA 24 at 282-3 [22]

[30] Affidavit of Tony Mahesparam Vijayakumar filed 8.6.2007, Annexure E

[31] Statutory declaration of Tony Vijayakumar dated 10 January 2007 at [9]

[36] Notice of Termination dated 11th May 2007 page 5

Discrimination Act 1984

Magistrates Court Rules 2001

Discrimination Act 1992

Magistrates Court Act 1999

Rights and Equal Opportunity Commission Act 1986

Discrimination Act 1975

Interpretation Act 1901

Aviation (Carriers' Liability) Act 1959

Magistrates Act 1999

Vijayakumar v Qantas Airways Limited [2009] FMCA 736 (6 August 2009)

Vijayakumar v Qantas Airways Limited [2008] FMCA 339

Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 153

Gama v Qantas Airways Ltd [2006] FMCA 11

Hollingdale v Northern Rivers Area Health Service [2004] FMCA 721

Travers v New South Wales [2000] FCA 1565

Bender v Bovis Lend Lease Pty Ltd [2003] FMCA 277

Rispoli v Merck Sharpe & Dohme & Ors [2003] FMCA 160

Spencer v Dowling [1996] VSC 51; [1997] 2 V.R. 127

MacRobertson Miller Airline Services v Commissioner of State Taxation (WA) [1975] HCA 55; (1975) 133 CLR 125

Imaje v Taylor [2007] VSC 390

Fattouh v Gulf Air Company GSC & Anor [2007] NSWDC 153

Fernely v Boxing Authority of NSW [2001] FCA 1740; (2001) 115 FCR 306

Lindisfarne R & SLA Sub-Branch and Citizens' Club & Anor v Buchanan [2004] TASSC 73

Brannigan v Commonwealth of Australia [2000] FCA 1591; (2003) 110 FCR 566

Air Link Pty Ltd v Paterson (2005) 218 ALR 700; [2005] HCA 39

Shipping Corporation of India Ltd v Gamlen Chemical Co (Australasia) Pty Ltd [1980] HCA 51; (1980) 147 CLR 142

Peacock v Human Rights and Equal Opportunity Commission [2007] FMCA 1360

Dowling v John Fairfax Publications Pty Ltd [2007] FMCA 2104

SZGTE v Minister for Immigration and Multicultural Affairs [2006] FCA 443

Vivid Entertainment v Digital Sinema Aust Pty Ltd [2007] FMCA 157

Walton v Gardiner (1993) 177 CLR 393; [1992] HCA 12

Old UGC Inc v Industrial Relations Commission of New South Wales in Court Session (2006) 225 CLR 274; 80 ALJR 1018; [2006] HCA 24

Clarke v Oceania Judo Union [2007] FMCA 292

Vijayakumar v Qantas Airways Limited [2009] FMCA 736

At a glance

Court

Decision date

Source

Judgment (63 paragraphs)

Parties

Legislation Cited (9)

Cases Cited (35)

Vijayakumar v Qantas Airways Limited [2009] FMCA 736 (6 August 2009)