Black & White (Quick Service) Taxis Ltd v Sailor & Anor [2010] QSC 73 [2011] 2 Qd R 35

SUPREME COURT OF QUEENSLAND CITATION: Black & White (Quick Service) Taxis Ltd v Sailor & Anor [2010] QSC 73 PARTIES: BLACK & WHITE (QUICK SERVICE) TAXIS LTD (Appellant) JAMES SAILOR (First Respondent) NELSON HUBBUCKS (Second Respondent) NELSON HUBBUCKS (Appellant) JAMES SAILOR (First Respondent) BLACK & WHITE (QUICK SERVICE) TAXIS LTD (Second Respondent) FILE NO/S: Appeal 20 of 2009 Appeal 23 of 2009 DIVISION: Trial PROCEEDING: Appeal ORIGINATING COURT: Supreme Court, DELIVERED ON: 18 March 2010 DELIVERED AT: Cairns HEARING DATE: 28 October 2009 JUDGE: Jones J ORDER: 1. The orders of the Anti-Discrimination Tribunal made on 23 December 2008 that – (i) the appellants are to pay $2,000 to the first respondent; the appellants are to pay the first respondent’s costs fixed at $635; and (ii) the appellants are jointly and severally liable to pay these sums; be set aside. 2. In lieu thereof, I order that – (a) the first respondent’s complaint be dismissed. (b) the first respondent pay the appellants’ costs of and incidental to the proceeding in the Anti-Discrimination Tribunal to be assessed on the standard basis by reference to the District Court Scale. 3. The first respondent pay the appellants’ costs of and incidental to these appeals to be assessed on a standard basis. 4. Liberty to each party to apply on giving to other parties 3 business days notice. -- 1 of 6 -- 2 CATCHWORDS: DISCRIMINATION – appeal pursuant to s 217 of the Anti- Discrimination Act 1991 against a decision of the Anti- Discrimination Tribunal – where the right to appeal lies only on a question of law – did the Tribunal err in its construction of s 46(1) of the Act – was the appellant an agent of the taxi company within the meaning of s 133(1) – whether the appellant’s exchange with the first respondent falls under the scope of s 46(1) of the Act COUNSEL: M Jonsson for the first appellant J Trevino for the second appellant SOLICITORS: MacDonnells Law for the first appellant O’Reilly Stevens Bovey Lawyers for the second appellant No appearance for the first respondent [1] By these two appeals, made pursuant to the provisions of s 217 of the Anti- Discrimination Act 1991 (Qld) (hereinafter “the Act”), the appellants seek to quash a decision of the Anti-Discrimination Tribunal pronounced on 23 December 2008. [2] The right to appeal lies only on the question of law. The appeals raise an identical issue and by order of the Court were heard together. [3] The Tribunal found that the appellant, Nelson Hubbucks, discriminated against the first respondent, James Sailor, by treating him unfavourably in connection with the supply of taxi services in contravention of s 46(1)(d) of the Act. The Tribunal also found that at the time Hubbucks was the agent of Black & White (Quick Service) Taxis Ltd (hereinafter “B &W Taxis”) which was vicariously liable for his conduct pursuant to s 133 of the Act. The Tribunal ordered the appellants to pay to Mr Sailor the sum of $2,000 compensation plus costs fixed in the sum of $635. [4] Mr Hubbucks had made a complaint of discrimination against Mr Sailor arising out of the same incident but that complaint was dismissed and no appeal has been lodged against that order. [5] When the appeals came on for hearing on 28 October 2009, Mr Sailor did not appear. He had, some six days earlier, filed a synopsis of argument by which he seeks to have the appeals dismissed and to have the compensation in his favour increased to $6,000. He did not specifically address the serious issues raised in the respective notices of appeal. Background facts [6] Mr Sailor is of Torres Strait Island descent, and is elderly. At the time he lived in a unit at 118 Murray Street, Manoora. On 25 March 2005 he was sitting outside his unit when a taxi driven by Mr Hubbucks entered the general car park area at the block of units. [7] Mr Hubbucks was employed as a commission driver by R & B Sandahar who operated the taxi by way of a lease from the owner of the taxi licence. He had been dispatched to pick up a fare paying passenger from Unit 12 at 118 Murray Street. When he parked the taxi he sounded the horn to inform the fare of his arrival. He -- 2 of 6 -- 3 then asked Mr Sailor, “Where Unit No. 12 was”. That inquiry was followed by a verbal exchange, the terms of which were much in dispute before the Tribunal. The learned Tribunal member resolved the dispute by finding – (a) In the exchange that occurred between them, Mr Hubbucks called Mr Sailor a “black bastard” and a “black cunt”. (b) Mr Samuel Brown heard some of Mr Hubbucks’ remarks; (c) It is likely that Ms Sharyn Brown also heard Mr Hubbucks’ remarks; (d) Mr Sailor thought Mr Hubbucks was employed by, or was a representative of Black & White; and (e) There is insufficient evidence to find that Mr Sailor called Mr Hubbucks a “fucking white cunt”, or words to that effect. 1 [8] The original complaint by Mr Sailor asserted discrimination on the basis of race, public vilification on the ground of race and victimisation. The learned member ruled that there was no racial vilification 2 and no victimisation3 but found that there was discrimination in contravention of s 46(1)(d) of the Act. The issue [9] The appellants each contend that the Tribunal erred in law in its construction of s 46(1) of the Act and further erred in finding that Mr Hubbucks was an agent of B W Taxis within the meaning of s 133(1). [10] Section 46(1) provides:- “(1) A person who supplies goods or services (whether or not for reward of profit) must not discriminate against another person- (a) by failing to supply the goods or services; or (b) in the terms on which goods or services are supplied; or (c) in the way in which goods or services are supplied; or (d) by treating the other person unfavourably in any way in connection with the supply of goods and services.” “Services”, by definition, includes services connected with transport or travel and this includes the taxi service. 4 [11] The Tribunal reasoned that the words “another person” and “the other person” are not limited in their application to the actual consumer of the relevant goods and services. 5 Having characterised the Act as “beneficial and remedial Human Rights legislation, and thus to be given a liberal construction, the Tribunal determined that the words “another person” and “the other person” were not confined to the consumer of the services”. 6 The Tribunal’s reasoning then continued as follows:- “60. At the time Mr Hubbucks drove into the car park of the unit complex he was engaged in supplying taxi services to the person who had booked them. He was dressed in corporate uniform and was driving a Black & White taxi. Mr Sailor was an occupier of the land onto which Mr Hubbucks drove his taxi. It was undisputed that 1 Reasons para [34], Appeal Record p 326 2 Reasons para [48] Appeal Record p 332 3 Ibid at para [64] Appeal Record p 336 4 Schedule – Dictionary of the Act 5 Reasons para [54] Appeal Record p 333 6 Reasons paras [55] and [56] Appeal Record p 334 -- 3 of 6 -- 4 Mr Hubbucks stopped the taxi, tooted the horn, wound down the window and asked Mr Sailor where unit 12 was. Mr Hubbucks’ enquiry about the location of unit 12 was connected with his supply of taxi services, because he was looking for his fare. If not for the supply of taxi services, Mr Hubbucks and Mr Sailor would have had no reason to communicate with each other.”7 [12] The appellants contend that by this reasoning the Tribunal erred in law by interpreting that subsection without sufficient reference to the broad statutory scheme, and without sufficient regard to the internal structure in content of s 46(1). [13] The broader statutory scheme is discerned from an examination of s 6 of the Act where the purpose of protecting persons from discrimination is achieved by prohibiting discrimination that is – (i) on a ground set out in paragraph 2 (e.g. sex, age, race, etc); (ii) of a type set out in paragraph 3 (e.g. direct/indirect discrimination); (iii) in an area of activity set out in Part 4 (e.g. work area, education area, goods and services area etc). unless stated exemptions apply. [14] Regard must be had to the fact that s 46 deals with direct discrimination, which requires the comparison of the treatment of a person with an attribute less favourably than a person without the attribute. Section 10. In Bayside City Council v Telstra 8 this notion was explored in the judgment of the majority in the following passage:- “Discrimination is a concept that arises for consideration in a variety of constitutional and legislative context. It involves a comparison, and, where a certain kind of differential treatment is put forward as the basis of a claim of discrimination, it may require an examination of the relevance, appropriateness, or permissibility of some distinction by reference to which such treatment occurs, or by reference to which it is sought to be explained or justified. In selection of comparable cases, and in forming a view as to the relevance, appropriateness, or permissibility of a distinction, a judgment may be influenced strongly by the particular context in which the issue arises. Questions of degree may be involved” 9 (my emphasis). [15] The appellants argue that for a complainant to be treated less favourably than the hypothetical comparator in the supply of goods or services, it is essential to the comparison that the complainant be an actual, intended or potential beneficiary of the relevant supply – because if the supply has no relation to the comparison called for, it cannot be said that the complainant has been treated less favourably by reference to the relevant supply. [16] Turning to the textual considerations of s 46(1), the appellants contend that the meaning of the subsection when read as a whole is clear from the language 7 Reasons para [60] Appeal Record p 335 8 [2004] 216 CLR 595 9 Ibid at para [40] -- 4 of 6 -- 5 employed. Paragraphs (a), (b) and (c) are references to treatment of an actual, intended or potential beneficiary – as distinct from a stranger to the transaction. This should, using the ejusden generis rule, guide the interpretation of para (d). This would result in “the other person” being the actual intended beneficiary of the service. Counsel for the appellants relied on the primacy of the language of the Act to contend that the meaning was clear. [17] The Tribunal was swayed by the terms of the preamble to the Act stating the intention to provide for promotion of equality and protection of persons from discrimination and relied upon judicial statements that legislation of this kind should be given a “purposive and beneficial construction”10 . The Tribunal approaching the issue with this instruction in mind, construed the scope of s 46)1)(d) to be of general scope. [18] I accept the arguments raised on behalf of the appellants. The scope of the section is limited by its reference to discrimination. In my view there is no ambiguity in the language of the section. Whilst phrases such as “in connection with” in some context may be given a wide interpretation, that is not the situation here. In Minister Administering the Crown Lands Act v NSW Aboriginal Land Council 11 the majority said:- “It is not necessary to invoke some principle of “beneficial construction” to resolve the issue in this case. No question is presented in this matter which requires a choice to be made between competing constructions of (the subsection), one described as “broad” and the other “narrow”. Rather, it is necessary to focus upon whether, as the appellant submitted, the activities that were undertaken by or on its behalf prior to the intended sale.”12 [19] Similar considerations arise here. The court is not dealing with competing constructions. The concept of discrimination has as its foundation the treatment of a person less favourably than a person without the attribute in the various situations contemplated by the Act. It is the combination of features listed in s 6 of the Act that identifies the occurrence of discrimination which the Act sets out to prohibit. [20] With regard to the supply of the taxi services intended to be undertaken by Mr Hubbucks, Mr Sailor could only be cast in the role as an observer or bystander. He was not the beneficiary, or intended beneficiary of any service to be supplied by Hubbucks. That he may have been asked to give assistance, is of no consequence because Mr Sailor’s circumstances do not invite the necessary comparison to determine discrimination in connection with the supply of services. The interaction between Mr Sailor and Mr Hubbucks, whilst it might be seen as insulting or demeaning, is a peripheral matter. It simply does fall to be considered on the issue of unfavourable treatment for the purpose of discrimination. [21] The first appellant also argued against the finding that it was vicariously liable for the actions of Mr Hubbucks. The issue is no longer of importance in determining the outcome of the appeals. Ordinarily, in deference to the detailed submission made by counsel, I would nonetheless have expressed my view on the issue. In this case there was no appearance on behalf of the first respondent or of the Tribunal. In 10 Reasons [55] citing I W v City of Perth [1996-7] 191 CLR 1 11 [2008] HCA 48; 82 ALJR 1505 12 Ibid at para [48]; see also per Kirby J at para [8] et seq -- 5 of 6 -- 6 the absence of any contradictor to the appellant’s submissions I should therefore refrain from any comment on the issue. [22] Mr Trevino of counsel for the appellant Hubbucks sought to challenge, and have reversed, findings of credibility made by the Tribunal adverse to his client. I decline to do so for the reasons firstly, those findings in the end result have no relevance to the final outcome of the original claim and secondly, because the right to appeal is limited to questions of law and does not envisage resolution of factual questions such as this. [23] In respect of each appeal, I make the following orders:- 1. The orders of the Anti-Discrimination Tribunal made on 23 December 2008 that – (i) the appellants are to pay $2,000 to the first respondent; (ii) the appellants are to pay the first respondent’s costs fixed at $635; and (iii) the appellants are jointly and severally liable to pay these sums; be set aside. 2. In lieu thereof, I order that – (a) the first respondent’s complaint be dismissed. (b) the first respondent pay the appellants’ costs of and incidental to the proceeding in the Anti-Discrimination Tribunal to be assessed on the standard basis by reference to the District Court Scale. 3. The first respondent pay the appellants’ costs of and incidental to these appeals to be assessed on a standard basis. 4. Liberty to each party to apply on giving to other parties 3 business days notice. -- 6 of 6 --