Fire Service, Commissioner of v Seaton [1996] QSC 39 (1996) Q.A.D.R. 269

IN THE SUPREME COURT OF QUEENSLAND No 230 of 1995 Brisbane Before Mr Justice de Jersey BETWEEN: THE COMMISSIONER OF FIRE SERVICE (Appellant) AND: CLEMENT JOHN SEATON (Respondent) REASONS FOR JUDGMENT - de JERSEY J Judgment delivered 22\03\1996 CATCHWORDS: Appeal against decisions of Anti-Discrimination Tribunal - whether involving questions of law Counsel: R Bourke for appellant P Applegarth for respondent Solicitors: Crown Solicitor for appellant Slater Gordon for respondent Date of Hearing: 15 March, 1996 -- 1 of 5 -- IN THE SUPREME COURT OF QUEENSLAND Brisbane Before Mr Justice de Jersey No 230 of 1995 BETWEEN: THE COMMISSIONER OF FIRE SERVICE (Appellant) AND: CLEMENT JOHN SEATON (Respondent) REASONS FOR JUDGMENT - de JERSEY J Judgment delivered 22\03\1996 The respondent, Mr Seaton, applied to the Queensland Fire Service for appointment as a Station Officer, Second Class at Townsville. The Fire Service refused his application on the ground that his eyesight did not meet its standard. Mr Seaton has 6/24 vision in his left eye, notwithstanding 6/6 binocular vision. The Queensland Fire Service Code of Practice, Vision and Eye Protection Code then in force required that on recruitment, a fire officer have 6/6 vision in each eye. Mr Seaton brought a complaint to the Anti-Discrimination Tribunal. After a hearing, Ms C E Holmes, a member of the Tribunal, upheld the complaint and ordered the Fire Service to reinstate Mr Seaton. It was virtually accepted before the Tribunal that discrimination within the meaning of the Anti-Discrimination Act, 1991 had occurred. The real issue was whether the fire service had discharged the onus it bore (s.206) of establishing on the balance of probabilities that one or more of three exemptions applied:- first, that it was -- 2 of 5 -- 2 entitled to refuse Mr Seaton's application because of his failure to satisfy a "genuine occupational requirement" for the position for which he applied (s.25); second, that it was entitled to refuse because that course was "reasonably necessary to protect public health" (s.107); and third, that the refusal was justified as "reasonably necessary to protect the health and safety of people at a place of work"(s.108). Ms Holmes held that the Fire Service had not discharged the onus of establishing the applicability of any of those three exemptions. The Fire Service has now appealed to this court against the Tribunal's decision. Its entitlement to appeal depends, under s.217, on one's being able to identify a "question of law" as involved in the decision of the Tribunal. Mr Bourke, who appeared for the Fire Service, submitted that the Tribunal's decision in relation to each of the claimed exemptions was erroneous in law, in the sense that there was no evidence to support it, although his oral submission concentrated on the first - he conceded great difficulty in arguing that the Commissioner's decisions on the last two exemptions were vulnerable. Mr Applegarth, who appeared for Mr Seaton, submitted that the three decisions were factually open. As to the first of the three exemptions, Ms Holmes concluded that the "6/6 requirement was (not) a genuine occupational requirement". She went on to describe it as an "arbitrary standard". Ms Holmes relied on these particular matters - that a different (less stringent) requirement applied for serving officers; that the 6/6 requirement could operate unreasonably, for example excluding someone with 6/7 vision but well equipped for the work; that a reasonable system should rely not on that sort of inflexible requirement, but involve specialist testing, so that practically irrelevant divergences -- 3 of 5 -- 3 from the standard might be overlooked; and that the inapplicability of the requirement to serving officers suggested that it was not truly an "occupational" requirement. Could one say that the Commissioner's conclusion, based on those factors emerging from the evidence, found no evidentiary support, so that it involved an error of law, thereby creating a "question of law" sufficient to give rise to jurisdiction in this court? Mr Bourke emphasised the position in other states, where comparable standards are utilized, suggesting that that lent these requirements an authenticity which precluded their being condemned as "arbitrary". But that factor was one of many. It did not necessitate a conclusion that this requirement is a genuine occupational requirement in terms of s.25. In my opinion, no question of law arises from the Commissioner's conclusion that s.25 did not apply. The issue of what is an "occupational requirement", and whether it is "genuine", appears at first blush to be perfectly factual. I have not been dissuaded from that position. The Commissioner received evidence of what the "requirement" was, and she then determined, by taking account of surrounding relevant circumstances, whether, as a matter of fact, that requirement should be regarded as "occupational" and as "genuine". There was evidence justifying the conclusions to which she came. It is not a case where the decision might be criticised as bad in law because it was not supported by any evidence. Whether or not this Court would have reached the same factual conclusion is by the way. As to the second and third grounds, Ms Holmes carefully discussed the various concerns advanced by the Fire Service - including that Mr Seaton might not be able to read the gauge on his breathing apparatus if he lost his right eye, that he might have -- 4 of 5 -- 4 difficulty reading "Hazchem" labels, that his capacity to perceive warning signs might be reduced, and that he might require assistance from others to leave a scene. In general, the Fire Service preferred that its officers have "all faculties in a situation which can be life threatening". The Commissioner dealt with each of those concerns on a factual level, mentioning that Mr Seaton had previously served 15 years in the Melbourne Fire Service and without difficulty, and concluding that neither of these two exemptions applied. As Mr Bourke virtually conceded, the Commissioner's conclusions on those two exemptions gave rise to no "question of law". Her approach was purely factual. It drew permissibly on the evidence before her, and the inferences she drew were open. It follows that the appeal must be dismissed, with costs to be taxed. -- 5 of 5 --