IW v City of Perth

HIGH COURT OF AUSTRALIA

BRENNAN CJ, DAWSON, TOOHEY, GAUDRON, McHUGH, GUMMOW AND KIRBY JJ

I W v. THE CITY OF PERTH & ORS; FC 97/027, P 37/96
Anti-discrimination law - Local Government

(1997) 146 ALR 696

31 July 1997
Anti-discrimination law - Local Government

Anti-discrimination law—Direct discrimination—Discrimination on ground of impairment—Discrimination in provision of services—Refusal of planning approval for drop-in centre for people with HIV/AIDS—Application made by incorporated association of which appellant was a member—Meaning of "services" in s 4(1) of Equal Opportunity Act 1984 (WA)—Whether refusal of planning approval by Council was a refusal to provide "services"—Whether appellant an "aggrieved person"—Identification of notional person with whom aggrieved person is to be compared in determining whether discriminatory treatment—Whether refusal was "on the ground of" impairment. Local Government—Nature of test to determine ground of decision made by a decision-making body—Whether councillors personally liable for causing or aiding act of discrimination. Equal Opportunity Act 1984 (WA), ss 4(1), 66A(1), 66K(1), 160. Local Government Act 1960 (WA), s 680.

Orders

ORDER

Appeal dismissed with costs.

Decision

BRENNAN CJ AND McHUGH J

The principal question in this appeal is whether the City of Perth unlawfully discriminated against an association incorporated under the Associations Incorporation Act 1987 (WA) by refusing planning approval for the use of premises for persons infected with the Human Immunodeficiency Virus ("HIV") which can lead to Acquired Immune Deficiency Syndrome ("AIDS").

The appeal is brought against an order of the Full Court of the Supreme Court of Western Australia which held that the Equal Opportunity Tribunal of that State had erred in law in finding against the City of Perth ("the City") on that issue. Section 66K(1)(a) of the Equal Opportunity Act 1984 (WA) ("the Act") provides that it is unlawful for a person who provides services to discriminate against another person on the ground of that person's impairment by refusing to provide that person with those services. The appellant is a member of the association, People Living With Aids (WA) Inc ("PLWA"), and contends that he has standing to bring an action for breach of s 66K(1)(a). He also contends that the City refused to approve the change of use because many of those who would be attending the premises were HIV infected and the Full Court erred in finding that the refusal was not a discriminatory refusal of a service that the Council provided to ratepayers.

PLWA seeks Council approval for a drop-in centre

In January 1990 PLWA applied to the Town Planning Committee of the City for approval for the use of the premises as a day time drop-in centre for persons who were HIV infected. Approval was needed because the premises were in an area zoned for shopping use. The City Planner reported to the Town Planning Committee that the proposed use was compatible with the requirements of the City Planning Scheme and would not adversely affect the amenity of the area. He recommended that the application be approved. Nevertheless, on 19 February 1990, the Committee resolved to recommend to the Council that the application be refused. Later that day the Council rejected a motion to refuse the application. However, it sent the matter back to the Committee for further consideration. On 1 March 1990, the Committee resolved to refer the application to the Council for determination. By 13 votes to 12, the Council rejected a motion that the application be approved for a trial period of 12 months. The Council gave no reasons for its decision.

On 21 March 1990, PLWA appealed to the relevant Minister against the Council's decision. The Minister allowed the appeal and approved the application. PLWA, and later the appellant and two others, lodged a complaint with the Commissioner for Equal Opportunity alleging that the Council had contravened s 66K of the Act.

The statutory provisions

Section 66A is entitled "Discrimination on ground of impairment" and relevantly provides:

"(1) For the purposes of this Act, a person (in this subsection referred to as the 'discriminator') discriminates against another person (in this subsection referred to as the 'aggrieved person') on the ground of impairment if, on the ground of -

(a) the impairment of the aggrieved person;

(b) a characteristic that appertains generally to persons having the same impairment as the aggrieved person;

(c) a characteristic that is generally imputed to persons having the same impairment as the aggrieved person; or

(d) a requirement that the aggrieved person be accompanied by or in possession of any palliative device in respect of that person's impairment,

the discriminator treats the aggrieved person less favourably than in the same circumstances, or in circumstances that are not materially different, the discriminator treats or would treat a person who does not have such an impairment.

(2) For the purposes of subsection (1), circumstances in which a person treats or would treat another person who has an impairment are not materially different by reason of the fact that different accommodations or services may be required by the person who has an impairment.

(3) For the purposes of this Act, a person (in this subsection referred to as the 'discriminator') discriminates against another person (in this subsection referred to as the 'aggrieved person') on the ground of impairment if the discriminator requires the aggrieved person to comply with a requirement or condition -

(a) with which a substantially higher proportion of persons who do not have the same impairment as the aggrieved person comply or are able to comply;

(b) which is not reasonable having regard to the circumstances of the case; and

(c) with which the aggrieved person does not or is not able to comply."

The appellant relies on s 66A(1) which is concerned with direct discrimination rather than s 66A(3) which is concerned with indirect discrimination[1].

Section 66K is entitled "Goods, services and facilities" and relevantly provides:

"(1) 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 impairment -

(a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person;

(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 the 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."

The Act does not define the phrase "on the ground of" in s 66K. However, s 5 states:

"A reference in Part II, III, IV or IVA to the doing of an act by reason of a particular matter includes a reference to the doing of an act by reason of 2 or more matters that include the particular matter, whether or not the particular matter is the dominant or substantial reason for the doing of the act."

Section 4(1) defines "impairment" as follows:

"'impairment' in relation to a person, means one or more of the following conditions -

(a) any defect or disturbance in the normal structure or functioning of a person's body;

(b) any defect or disturbance in the normal structure or functioning of a person's brain; or

(c) any illness or condition which impairs a person's thought processes, perception of reality, emotions or judgment or which results in disturbed behaviour,

whether arising from a condition subsisting at birth or from an illness or injury and includes an impairment which presently exists or existed in the past but has now ceased to exist".

The history of the litigation

Where the Commissioner for Equal Opportunity believes that a complaint cannot be resolved by conciliation, s 93(1) of the Act requires him to refer the complaint to the Equal Opportunity Tribunal which is established by s 96. In accordance with s 93, the Commissioner referred the complaint of PLWA and the other parties to the Tribunal. After a nine day hearing, the Tribunal held that the Council (and thus the City) had discriminated against the complainants[2]. The Tribunal found that the votes of five councillors who constituted the majority of 13 were "grounded on the AIDS factor" and that another councillor who did not vote had encouraged councillors to vote against the motion "because of the AIDS factor". These six councillors are the second to seventh respondents to the present appeal. The Tribunal held that the votes of five of these six councillors were "causative in terms of the decision of the Council ... in that but for them that decision would not have been made."

The Tribunal made orders under s 127(b)(i) requiring the respondents to pay the appellant and other parties damages by way of compensation for loss or damage suffered by reason of their conduct.

The Council and the second to seventh respondents appealed[3] to the Supreme Court of Western Australia. Murray J heard and dismissed the appeal[4]. But on further appeal the Full Court of the Supreme Court of Western Australia (Ipp, Wallwork and Scott JJ) held that the Tribunal had erred in law[5]. Ipp J held that the test for discrimination on the grounds of impairment required a comparison between the way in which the aggrieved person was treated and the way in which "in the same circumstances, or in circumstances that are not materially different" the alleged discriminator has treated or would treat some person not having the impairment[6]. His Honour held that the comparison is between the treatment of the impaired aggrieved person and a notional person who does not have the impairment as defined, but who has one or more of the characteristics set out in s 66A(1)(b) to (c) or the requirement set out in s 66A(1)(d). The Tribunal failed to apply this test. Accordingly, his Honour held that the Tribunal had erred in law in reaching its decision. His Honour also held that the states of mind of the five councillors could not be attributed to the City because only a state of mind possessed collectively by a majority of councillors voting could be attributed to the City. The state of mind of an individual councillor was relevant only to the extent that it was a state of mind common to all those councillors who voted against the application[7]. Accordingly, the City had not committed an unlawful act under s 66K(1) of the Act.

Wallwork J also held that the states of mind of the five councillors could not be attributed to the City[8].

Scott J held that only PLWA, and not the individual complainants had been refused services. His Honour also held that the Tribunal had misdirected itself on the comparison issue for reasons broadly similar to Ipp J. Scott J declined to deal with the state of mind issue because, the Council having given no reasons, the true ground of its decision could not be ascertained[9].

The critical issue

The appellant contends that the judges of the Full Court erred in their reasons for holding that the City had not discriminated against the appellant on the ground of his impairment. In our opinion, it is not necessary to deal with the issues raised in the Notice of Appeal because one of the grounds relied on in the respondents' Notices of Contention should be upheld. That ground is that, on the proper construction of the Act, the Council did not refuse to provide a service within the meaning of s 66K(1) of the Act.

The meaning of "services"

The term "services" has a wide meaning. The Macquarie Dictionary relevantly defines it to include "an act of helpful activity"; "the providing or a provider of some accommodation required by the public, as messengers, telegraphs, telephones, or conveyance"; "the organised system of apparatus, appliances, employees, etc., for supplying some accommodation required by the public"; "the supplying or the supplier of water, gas, or the like to the public"; and "the duty or work of public servants". But wide as the definition is, in our opinion it is not capable of including a refusal to exercise the statutory discretion provided for by the Town Planning and Development Act 1928 (WA) and Clause 40 of the City of Perth City Planning Scheme to approve the use of premises for use other than as a shop.

Section 4(1) of the Act contains an inclusive definition of services. It provides that unless the contrary intention appears:

"'services' includes -

(a) services relating to banking, insurance and the provision of grants, loans, credit or finance;

(b) services relating to entertainment, recreation or refreshment;

(c) services relating to transport or travel;

(d) services of the kind provided by members of any profession or trade;

and

(e) services of the kind provided by a government, a government or public authority or a local government body".

Section 18 of the Interpretation Act 1984 (WA) requires preference to be given to the construction of a written law that would promote the purpose or object underlying that law to a construction that would not promote that purpose or object. One of the objects[10] of the Act is:

"to eliminate, so far as is possible, discrimination against persons on the ground of sex, marital status or pregnancy, race, religious or political conviction or impairment in the areas of work, accommodation, education, the provision of goods, facilities and services and the activities of clubs".

Consequently, the provisions of the Act should as far as possible be given a construction that would eliminate discrimination on the ground of impairment.

In applying s 18 of the Interpretation Act, however, it must be kept in mind that the Act, like many anti-discrimination statutes, defines discrimination and the activities which cannot be the subject of discrimination in a rigid and often highly complex and artificial manner[11]. As a result, conduct that would be regarded as discriminatory in its ordinary meaning may fall outside the Act. The object referred to in s 3(a) of the Act must, therefore, be understood by reference to the definitions of discrimination which occur in various parts of the Act.

The injunction contained in s 18 of the Interpretation Act is reinforced by the rule of construction that beneficial and remedial legislation, like the Act, is to be given a liberal construction[12]. It is to be given "a fair, large and liberal" interpretation rather than one which is "literal or technical"[13]. Nevertheless, the task remains one of statutory construction. Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural. But subject to that proviso, if the term "service", read in the context of the Act and its object, is capable of applying to an activity, a court or tribunal, exercising jurisdiction under the Act, should hold that that activity is a "service" for the purpose of the Act.

Did the Council provide a service of giving planning approval?

As the definition of services in s 4 recognises, councils provide services to the ratepayers and residents of their municipality or borough. The collection of garbage and the supply of water, gas and electricity are common examples of services which councils, depending on their statutory powers, provide to ratepayers and others. Discrimination in the provision of these services is unlawful under the Act. Moreover, in an appropriate case allowing the use of property or facilities owned by or under the control of the Council may constitute the provision of a service by that Council. Providing use of libraries, parks and sporting facilities, for example, may constitute the provision of a service which attracts the operation of the Act. So too may the provision of intangibles such as advice and information in respect of building and town planning matters.

Furthermore, the Act is not necessarily inapplicable to a council activity because the council, acting as a deliberative body, makes a decision refusing to provide the relevant service or because the refusal is made in the exercise of a statutory power or duty. Thus, in Attorney General of Canada v Cumming[14], Thurlow ACJ accepted that in assessing taxes under the Income Tax Act[15] the Department of National Revenue was engaged in the provision of services within the meaning of s 5 of the Canadian Human Rights Act[16]. Similarly, in Savjani v Inland Revenue Commissioners[17], the English Court of Appeal decided that the Inland Revenue was providing "services" to the public in carrying out a statutory duty to determine whether a taxpayer was entitled to a deduction for a dependent child and in disseminating and giving advice to taxpayers to enable them to claim that tax relief. Templeman LJ said[18]:

"[I]t does not necessarily follow that the board and the inspector are not voluntarily, or in order to carry out their duty, also performing services for the taxpayer. The duty is to collect the right amount of revenue; but, in my judgment, there is a service to the taxpayer provided by the board and the inspector by the provision, dissemination and implementation of regulations which will enable the taxpayer to know that he is entitled to a deduction or a repayment, which will entitle him to know how he is to satisfy the inspector or the board if he is so entitled, and which will enable him to obtain the actual deduction or repayment which Parliament said he is to have. For present purposes, in my judgment, the inspector and the board provide the inestimable services of enabling a taxpayer to obtain that relief which Parliament intended he should be able to obtain as a matter of right subject only to proof."

In R v Entry Clearance Officer; Ex parte Amin[19], however, the House of Lords (by a 3-2 majority) held that a clearance officer who vetted aspiring immigrants to the United Kingdom was not providing a facility or service within the meaning of s 29(1) of the Sex Discrimination Act 1975 (UK). Lord Fraser of Tullybelton, with whose speech Lord Keith of Kinkel and Lord Brightman relevantly agreed, said[20] that the entry clearance officer was "not providing a service for would-be immigrants; rather he was performing his duty of controlling them." Lord Fraser said[21] that, properly viewed, Savjani turned on the finding that the Inland Revenue "performed two separate functions - first a duty of collecting revenue and secondly a service of providing taxpayers with information." In our view that is the correct explanation of that decision.

In Farah v Commissioner of Police of the Metropolis[22], the English Court of Appeal held that those duties of a police officer that involve assistance to or protection of the public constitute "services to the public" for the purposes of the Race Relations Act 1976 (UK). Otton LJ said[23]:

"[P]olice officers perform duties in order to prevent and detect crime and to bring offenders to justice. They are also vested with powers to enable them to perform those duties. While performing duties and exercising powers they also provide services in providing protection to the victims of crimes of violence."

Otton LJ also said[24] that, like Templeman LJ in Savjani[25], he would "be slow to find that the effect of something which is humiliatingly discriminatory in racial matters falls outside the ambit of the Act." With respect, while we think that Farah was rightly decided, that is not the correct approach in determining questions under the Equal Opportunity Act 1984 (WA). In a case like Farah, the first question is whether the activity which the person refused to provide is capable of being regarded as a service which that person or his or her employer provides to other citizens. If it is, and a holding to that effect would promote the objects of the Act, then the court or tribunal should hold that it is a service within the meaning of the Act. But, given the artificial definitions of discrimination in the Act and the restricted scope of their applications, the court or tribunal should not approach the task of construction with any presumption that conduct which is discriminatory in its ordinary meaning is prohibited by the Act. The Act is not a comprehensive anti-discrimination or equal opportunity statute. The legislature of Western Australia, like other legislatures in Australia and the United Kingdom, has avoided use of general definitions of discrimination such as the one that Gaudron and McHugh JJ gave in Castlemaine Tooheys Ltd v South Australia[26]and to which McHugh J referred in Waters v Public Transport Corporation[27]:

"A law is discriminatory if it operates by reference to a distinction which some overriding law decrees to be irrelevant or by reference to a distinction which is in fact irrelevant to the object to be attained; a law is discriminatory if, although it operates by reference to a relevant distinction, the different treatment thereby assigned is not appropriate and adapted to the difference or differences which support that distinction. A law is also discriminatory if, although there is a relevant difference, it proceeds as though there is no such difference, or, in other words, if it treats equally things that are unequal - unless, perhaps, there is no practical basis for differentiation."

Those legislatures have also deliberately confined the application of anti-discriminatory legislation to particular fields and particular activities within those fields.

No doubt most anti-discrimination statutes are legislative compromises, resulting from attempts to accommodate the interests of various groups such as traders, employers, religious denominations and others to the needs of the victims of discrimination. As the evils of discrimination in our society have become better understood, legislatures have extended the scope of the original anti-discrimination statutes. Many persons think that anti-discrimination law still has a long way to go. In the meantime, courts and tribunals must faithfully give effect to the text and structure of these statutes without any preconceptions as to their scope. But when ambiguities arise, they should not hesitate to give the legislation a construction and application that promotes its objects. Because of the restricted terms of a particular statute, however, even a purposive and beneficial construction of its provisions will not always be capable of applying to acts that most people would regard as discriminatory.

Thus, when a council is called on as a deliberative body to exercise a statutory power or to execute a statutory duty, it may be acting directly as an arm of government rather than as a provider of services and its actions will be outside the scope of the Act. This is particularly so when councillors are acting as representatives of their constituencies in making by-laws or resolutions that will have the force of law throughout the municipality or borough. Such "legislative" acts have to be contrasted with the acts involved in making operational decisions as to whether a particular service should be provided to certain individuals or to a section of the community.

Similarly, when a council is required to act in a quasi-judicial role in exercising a statutory power or duty, it may be inappropriate to characterise the process as the provision of a service for the purpose of the Act even in cases where the product of the process is the provision of a benefit to an individual. This is likely to be the case where the council, before making a decision, is required to consider matters that affect the public interest. In such a case, the Council may be providing a "service" in a very general sense because its ratepayers ultimately benefit from the process. But that may not be sufficient to bring the process within the scope of Part IVA of the Act.

Section 66A provides that a person does not discriminate on the ground of impairment in providing a service unless that person "treats the aggrieved person less favourably than in the same circumstances, or in circumstances that are not materially different, the discriminator treats or would treat a person who does not have such an impairment." This section makes it clear that the "services" to which s 66K refers are those services which are provided or would be provided to other individuals in the same or like circumstances. The fact that the public or a section of the public benefits from the operation of an activity or the execution of a process of a council does not necessarily mean that the council provides a service for the purposes of the Act. To succeed in a claim under s 66K(1)(a) of the Act, the aggrieved person must establish that he or she has been refused a service that the alleged discriminator provides or would provide to another person in the same circumstances or circumstances that are not materially different.

In the present case, the Tribunal held that the administration of the town planning scheme was itself a service. The Tribunal said:

"Taking the 'broad view', there can be no doubt that in administering a town planning scheme within its municipal area, regulating the use of land to the best possible advantage, securing provision for traffic and the other factors mentioned in s 2 [of the Town Planning and Development Act 1928 (WA)] and clause 5 of the City Planning Scheme, and generally implementing or enforcing measures directed to the amenity of the area, the municipality of the City of Perth is providing a service to residents. In this context, the exercise of a discretion to give planning approval to allow the use of premises for a particular purpose in a specific locality is part of that service and is itself a 'service' within the meaning of s 4(1) of the Act. The statutory definition is inclusive, not exclusive, and where it is reasonably capable of having a sufficiently wide meaning to encompass a situation which would prima facie advance the objects and purposes of the Act, that interpretation is to be preferred (see eg N M Superannuation Pty Ltd v Young[28])." [emphasis added]

Adopting this analysis, the appellant contends that, in performing its functions as responsible authority for the purposes of the relevant town planning scheme, the City was providing services of the kind provided by a public authority or a local government body within the meaning of par (e) of the definition of "services" in s 4(1). He contends that "the refusal to approve the change of use was clearly capable of constituting the refusal of a service." He submits that, if approving a change of use was capable of being a service, then the Tribunal had not erred in law[29] in finding as a fact that the City had refused to provide a service for the purpose of the Act. In our opinion, this submission must be rejected because the City did not provide any service of giving planning approval.

In determining whether a person has refused to provide a service within the meaning of the Act, it is necessary to identify with precision what service has allegedly been refused to that person and what service or services the alleged discriminator provides[30]. The appellant does not assert, and the Tribunal did not find, that the relevant service which the City provides was the consideration of an application for approval. There was clearly no refusal to provide such a service. Rather, the appellant asserts that it was the refusal to approve the application that was the refusal of the service which the Council provided. However, the City did not provide any service of giving approvals. Conversely, it did not provide any service of refusing approvals. The Council, acting on behalf of the City, merely had a duty to consider applications and a discretionary power to refuse or approve those applications unconditionally or on conditions.

Clause 34(1) of the City of Perth City Planning Scheme prohibited any use or development of land including the subject premises "without first having applied for and obtained the town planning approval of the Council under the Scheme." Clause 34(5) required an application to be in the form prescribed in the First Schedule to the Scheme and to be accompanied by certain plans and information. If the Council did not convey its approval within 60 days or such further time as should be agreed upon, the application was "deemed to have been refused"[31]. Clause 40(1) imposed a duty on the Council to examine applications taking into consideration such matters as "the orderly and proper planning of the locality and the preservation of the amenities of the locality", and gave it a discretion to refuse or grant the application "unconditionally or subject to such conditions as it may deem fit." Thus, the granting or refusal of an application was the end product of a deliberative process. Approval of an application no doubt conferred a benefit on an applicant. But it misdescribes the process to say that the Council provided a service of giving approvals. Certainly the process was not an "exercise of a discretion to give planning approval to allow the use of premises for a particular purpose in a specific locality[32]" as the Tribunal held. Consequently, the Tribunal erred in law and the Full Court, although for different reasons, was correct in setting aside the Tribunal's decision.

The claim under s 66K(1)(c)

In the Points of Claim filed with the Tribunal, the appellant also alleged that the City exercised its discretion in a discriminatory manner. This was a claim under s 66K(1)(c) and not s 66K(1)(a). That claim necessarily identified the service provided by the Council as the process which the Council undertook in considering and ultimately refusing or approving applications. However, the Tribunal did not deal with this claim. Moreover, it seems not to have been raised before Murray J or the Full Court. That being so, even if we thought that the alternative claim was arguable, we would hesitate to send the case back to the Tribunal to consider it at this late stage in the proceedings. In our opinion, however, the claim could not succeed in any event.

The process by which the Council considers applications for approvals is not in our view arguably describable as a service that it provides to applicants for planning approval. Rather it is a power to process applications for the protection and general benefit of the residents of the City. If the Council delays making its decision for more than 60 days, it is deemed to have refused the application. A process that can lead to such a result can hardly be described as providing a service to the applicant. If within the statutory period, the Council considers the application, it is bound to consider various matters and interests which may be contrary to the interests of the applicant and which may result in the refusal of the application. If the application succeeds, the applicant no doubt receives a benefit or advantage. But not every process or activity which results in a benefit or advantage to an individual is a service that is provided to that individual. When the deliberative and quasi-judicial nature of the application process is identified and analysed, it cannot sensibly be described as a "helpful activity" provided by the Council to applicants for planning approval. The Council is an adjudicator, not a servant of an applicant.

Order

The appeal should be dismissed.

DAWSON AND GAUDRON JJ

The appellant, IW, is and at all relevant times has been a member of People Living with AIDS (WA) Inc ("PLWA"). Membership of that organisation is confined to people who are HIV positive. In January 1990, PLWA sought planning approval from the first respondent, the City of Perth, for the use of certain premises as a daytime drop-in centre for persons infected with or affected by HIV.
The City of Perth is a body corporate constituted pursuant to the LocalGovernment Act 1960 (WA) ("the Local Government Act")[33]. Its Council ("the Council") is and was, in 1990, responsible for the administration and enforcement of the City of Perth City Planning Scheme ("the Planning Scheme")[34]. It was pursuant to the Planning Scheme[35] that PLWA sought approval for its drop-in centre. Subject to a qualification that is not presently relevant[36], s 173(8)(b) of the Local Government Act provided for decisions of the Council to be taken by "a majority of the valid votes of the members ... present at [a] meeting". And by s 8A of the Town Planning and Development Act 1928 (WA), appeals could be taken from decisions of the Council under the Planning Scheme to the Minister for Planning.

PLWA's application for planning approval came before the Council on 19 March 1990. It was moved that the application be approved for a trial period of 12 months ("the motion"). The motion was lost 13 votes to 12, with one member of Council, Councillor Nattrass, abstaining. On 21 March, PLWA appealed to the Minister and, on 6 April, the appeal was allowed and the application approved.

History of the Proceedings

Notwithstanding the Minister's grant of planning approval, PLWA brought discrimination proceedings in the Equal Opportunity Tribunal ("the Tribunal") against the first respondent (the City of Perth), the thirteen Councillors who voted against the motion and Councillor Nattrass who spoke in relation to the motion but who, as already noted, abstained from voting. As well, certain individual members of PLWA ("the individual complainants"), one of whom was the appellant, instituted proceedings against the same parties.

It was alleged by PLWA and by the individual complainants that the City of Perth discriminated against them contrary to s 66K(1) of the Equal Opportunity Act 1984 (WA) ("the Act"). It will later be necessary to refer to the precise terms of that sub-section. For the moment, however, it is sufficient to note that it proscribes discrimination on the ground of impairment in the provision of goods and services.

PLWA's complaint was amended at an early stage by substituting the name of one of its members for that of PLWA. The matter then proceeded before the Tribunal on that complaint, as a representative complaint, and, except for one which was held to have abated, on the complaints of the individual complainants. The complaints were upheld against the City of Perth and against six of its Councillors, including Councillor Nattrass (together referred to as "the respondents"). However, the Tribunal dismissed the complaints against other members of Council, it being held that they did not vote against the motion on grounds related to the HIV status of PLWA's members.

So far as concerns the six Councillors against whom the complaints were upheld, the Tribunal found that, by voting against the motion on grounds related to the HIV status of PLWA's members and, in the case of Councillor Nattrass, by raising those grounds in speaking on the motion, they, respectively, caused and aided an act of discrimination. By s 160 of the Act they were, thus, to be taken as, themselves, having committed that act[37]. They and the City of Perth were ordered to pay damages by way of compensation pursuant to s 127(b)(i) of the Act[38].

The respondents appealed unsuccessfully to the Supreme Court of Western Australia pursuant to s 134 of the Act[39]. They then appealed to the Full Court. Their appeal to that Court was allowed and the orders of the Tribunal set aside[40]. The appellant now appeals to this Court.

The Legislative Provisions

As already indicated, the complaints alleged discrimination by the first respondent contrary to s 66K(1) of the Act. That sub-section 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 impairment-

(a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person;

(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 the 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 is necessary to note the statutory definition of "services" and the statutory concept of "discrimination". "[S]ervices" is defined in s 4(1) of the Act, unless the contrary intention appears, to include:

"(a) services relating to banking, insurance and the provision of grants, loans, credit or finance;

(b) services relating to entertainment, recreation or refreshment;

(c) services relating to transport or travel;

(d) services of the kind provided by members of any profession or trade; and

(e) services of the kind provided by a government, a government or public authority or a local government body".

So far as concerns the statutory concept of "discrimination", the Act proceeds by reference to two apparently separate notions, namely, "direct" and "indirect" discrimination. The complaints in this case were complaints of direct discrimination which, so far as concerns discrimination on the ground of impairment, is defined in s 66A(1) in these terms:

" For the purposes of this Act, a person (in this subsection referred to as the 'discriminator') discriminates against another person (in this subsection referred to as the 'aggrieved person') on the ground of impairment if, on the ground of-

(a) the impairment of the aggrieved person;

(b) a characteristic that appertains generally to persons having the same impairment as the aggrieved person;

(c) a characteristic that is generally imputed to persons having the same impairment as the aggrieved person; or

(d) a requirement that the aggrieved person be accompanied by or in possession of any palliative device in respect of that person's impairment,

the discriminator treats the aggrieved person less favourably than in the same circumstances, or in circumstances that are not materially different, the discriminator treats or would treat a person who does not have such an impairment."

The concept of "circumstances that are not materially different" is elaborated in s 66A(2). Nothing presently turns on the terms of that sub-section. "[I]mpairment" is defined in s 4(1) to mean, amongst other things, "any defect or disturbance in the normal structure or functioning of a person's body".

One other matter should be noted. The notion of discrimination on the ground of impairment was extended in 1993 with the insertion in the Act of s 66A(1a)[41]. The effect of that sub-section is to extend the definition to include discrimination on the ground of the impairment of "any relative or associate of [an] aggrieved person". As the events involved in this case occurred in 1990, s 66A(1a) has no bearing on its outcome.

The issues in the Appeal

It is not in issue that HIV infection falls within the definition of "impairment" in s 4(1) of the Act. And the proceedings have been conducted on the basis that the first respondent discriminated against the appellant by refusing planning approval and not in any other way. Moreover, they have been conducted on the basis that, in terms of s 66K(1)(a), that refusal constituted a refusal "to provide [him] with ... services". On that basis, the question whether the appellant was the subject of unlawful discrimination involves four distinct issues. They are:

(i) whether refusal of planning approval was a refusal to provide services contrary to s 66K(1)(a) of the Act[42];

(ii) whether refusal of planning approval to PLWA constituted an act of discrimination against the appellant, IW, such that he is an "aggrieved person" for the purposes of s 66A(1) of the Act[43];

(iii) whether, in terms of s 66A(1), the first respondent treated the appellant "less favourably than in the same circumstances, or in circumstances that are not materially different, [it] treat[ed] or would treat a person who [is not infected with HIV]". In this regard, the issue is the proper identification of the person or persons with whom an "aggrieved person" is to be compared[44];

(iv) whether, given that five only of the Councillors voted against the motion on grounds related to the HIV status of PLWA's members, the first respondent's refusal to grant planning approval was a refusal "on the ground of" their HIV status[45].

We are of the view that the appellant fails on the first and second issues. It is, thus, unnecessary to deal with the third and fourth issues. Similarly, it is unnecessary to deal with another matter raised in argument, namely, whether, in view of s 680 of the Local Government Act[46], the Councillors against whom adverse findings were made by the Tribunal can be made personally liable under s 160 of the Act[47].

Refusal to provide "services"

In construing legislation designed to protect basic human rights and dignity, the courts "have a special responsibility to take account of and give effect to [its] purpose"[48]. For this reason, the provisions of the Act concerned with discrimination in the provision of goods or services, including s 66K(1), should be construed as widely as their terms permit. In particular, "services", a word of complete generality, should not be given a narrow construction unless that is clearly required by definition or by context.

Although s 4(1) of the Act purports to define "services", it does so by use of the word apparently defined. And it does so by indicating what is included in the definition, not what is excluded. As the matters included in the definition are all matters which fall within the ordinary notion of "services", the definition is to be taken as signifying everything which falls within that notion. And as neither the terms of s 66K(1) nor its context provides any contrary indication, "services" should be read in that sub-section as having its ordinary and broad meaning.

The need for "services" to be construed as having its ordinary broad meaning is, to some extent, confirmed by decisions given with respect to anti-discrimination legislation in the United Kingdom - legislation on which the Act and similar anti-discrimination legislation in other Australian states is largely based. Thus, it has been held that, in its proscription of discrimination in the provision of services, the Race Relations Act 1976 (UK) extends to "the provision, dissemination and implementation of regulations" by the Board of Inland Revenue[49]. It has also been held to extend to "those parts of a police officer's duties involving assistance to or protection of members of the public."[50] On the other hand, it has been held, in the context of the Sex Discrimination Act 1975 (UK), that in administering the Immigration Act 1971 (UK) and the Immigration Rules, the Secretary of State does not provide facilities to a section of the public[51]. Similarly, it was held in R v Entry Clearance Officer; Ex parte Amin that, in granting immigration vouchers, an entry clearance officer was "not providing a service for would-be immigrants; rather he was performing his duty of controlling them."[52]

The word "services", in its ordinary meaning, is apt to include the administration and enforcement by the City of Perth of the Planning Scheme. That being so, the Tribunal was correct in holding that "in administering a town planning scheme ..., regulating the use of land ..., securing provision for traffic ..., and generally implementing or enforcing measures directed to the amenity of the area, ... the City of Perth [was] providing a service to residents."

The Tribunal proceeded from its decision that, in administering and enforcing the Planning Scheme, the first respondent was providing a service to residents to the conclusion that "the exercise of a discretion to give planning approval ... is part of that service and is itself a 'service' within the meaning of s 4(1) of the Act." It followed from that conclusion that refusal of planning approval was a refusal to provide services for the purposes of s 66K(1)(a) of the Act. However, the Tribunal's intermediate conclusion that "the exercise of a discretion to give planning approval ... is itself a 'service' within the meaning of s 4(1) of the Act" involves a false description of the discretion vested in the first respondent. The discretion is not simply a discretion to grant approval. Rather, it is a discretion to grant or withhold approval[53].

Within the context of s 66K(1), a person who provides a service by exercising a discretion to grant or withhold approval may discriminate against a person in the exercise of that discretion by refusing to exercise it at all (par (a)), by imposing terms and conditions (par (b)), or by exercising it in a particular manner (par (c)). Subject to the question whether the appellant is an aggrieved person, it may be that a case can be made that, in refusing PLWA's application, the City of Perth exercised its discretion in a discriminatory manner and, thus, infringed s 66K(1)(c) of the Act. The Points of Claim lodged with the Tribunal asserted such a case. However, it was not dealt with by the Tribunal or in the subsequent appeals.

The appellant's argument that the first respondent's refusal of planning approval was a refusal to provide a service cannot be sustained. Once the service in issue is identified as the exercise of a discretion to grant or withhold planning approval, a case of refusal to provide that service is not established simply by showing that there was a refusal of planning approval. Rather, it is necessary to show a refusal to consider whether or not approval should be granted. And that case is foreclosed by the very matter of which the appellant complains, namely, the Council's refusal to grant approval.

Meaning of "aggrieved person"

We agree with Gummow J that the appellant is not an "aggrieved person" for the purposes of s 66A(1) of the Act. In considering whether the appellant is an "aggrieved person", it is necessary to have regard to the structure of the Act generally and, also, that of Pt IVA, the provisions of which deal with discrimination on the ground of impairment. In that exercise, s 66A(1a), which was inserted with effect from 8 January 1993, can be disregarded.

The Act, in its several Parts, proscribes direct and indirect discrimination on specified grounds, including sex (Pt II), race (Pt III), religious or political conviction (Pt IV) and impairment (Pt IVA). Subject to specified exceptions, it operates, in each Part, by proscribing discrimination in certain fields, including employment, education and the provision of goods, services and facilities. The proscriptions are effected in each Part by proscribing specified discriminatory conduct by one person or body, usually identified by occupation, undertaking or business activity, against another.

The general pattern of the Act is reflected in Pt IVA. As already indicated, s 66A defines discrimination on the ground of impairment: s 66A(1) defines it by reference to direct discrimination, with some further elaboration in sub-s (2); s 66A(3) defines indirect discrimination. In ss 66A(1) and (3), the person discriminated against is referred to as the "aggrieved person". A special definition of discrimination against the "blind, deaf, partially blind or partially deaf" is contained in s 66A(4). Again, the person discriminated against is referred to as the "aggrieved person". Succeeding provisions proscribe acts of discrimination in various fields of activity, including employment (s 66B), education (s 66I) and the provision of goods, services and facilities (s 66K).

As with other Parts of the Act, the proscriptions of discriminatory conduct are effected in Pt IVA by rendering unlawful specified discriminatory acts by one person or body against another. Thus, it is unlawful "for an employer to discriminate against a person on the ground of the person's impairment" by engaging in conduct falling within s 66B of the Act. Similarly, it is unlawful for a "principal" to discriminate against a "commission agent" or a "contract worker" by conduct falling within ss 66C and 66D respectively. So too, it is unlawful for partnerships, trade unions and employer organisations, qualifying bodies, and employment agencies to discriminate "against a person on the ground of the person's impairment" in the respects specified, respectively, in ss 66E, 66F, 66G and 66H. The pattern is repeated in ss 66I, 66J, 66K, 66L, 66M, 66N and 66P.

It is clear from the structure of the Act generally and, also, from the structure of Pt IVA, that an "aggrieved person" is a person who is discriminated against in a manner which the Act renders unlawful. And when regard is had to the precise terms of s 66K(1), it is clear that the person discriminated against is the person who is refused services, or who is provided with services on terms or conditions or in a manner that is discriminatory. As already indicated, there was no refusal of services in this case. And if anyone was the recipient of treatment which might constitute discrimination, it was PLWA, not the appellant. Accordingly, the appellant was not an "aggrieved person" within the meaning of that expression in s 66A(1) of the Act. And that being so, he is in no position to assert that the City of Perth engaged in unlawful discrimination in the exercise of its discretion to grant or withhold planning approval for PLWA's drop-in centre.

The appeal must be dismissed with costs.

TOOHEY J

The circumstances giving rise to this appeal and the relevant legislation appear in other judgments. I shall avoid undue repetition.

Unhappily, this matter has had a very long history. Since 1991 it has been before the Equal Opportunity Tribunal of Western Australia, judges of the Supreme Court of Western Australia[54], the Full Court of that Court and is now on appeal to this Court.

Before this Court four issues arose for determination. In logical sequence they were as follows:

1. Was the refusal by the Perth City Council to provide planning approval for the use of premises as a "day time drop-in centre" for persons who are HIV positive a refusal to provide "services" within s 66K(1) of the Equal Opportunity Act 1984 (WA) ("the Act")?

2. If so, was it a refusal to provide a service to the appellant as distinct from People Living with AIDS (WA) Inc ("PLWA"), an association incorporated under the Associations Incorporation Act 1987 (WA) and which was the applicant for planning approval?

3. What is the relevant test in order to attribute the ground of impairment referred to in the Act to a decision making body such as the Perth City Council when the application was rejected by 13 votes to 12?

4. Is it necessary that the unimpaired person, to whom the impaired person must be compared by reason of s 66A(1) of the Act, exhibit the characteristics ascribed by the decision making body to the impaired person?

Although this is the logical sequence in which to approach the issues, it should be appreciated that the first two arise from the respondents' notice of contention. It is the third and fourth issues which are the subject of the notice of appeal and which were the basis of the application for special leave to appeal. If either of the first two issues is determined adversely to the appellant, the remaining issues do not have to be resolved; in that event, however, the grant of special leave to appeal rather loses its point.

The objects of the Act, expressed in s 3, include

"to eliminate, so far as is possible, discrimination against persons on the ground of ... impairment in ... the provision of ... facilities and services". In the interpretation of this provision and any other provision in the Act,

"a construction that would promote the purpose or object underlying the written law ... shall be preferred to a construction that would not promote that purpose or object"[55].

Thus the approach to be taken in the interpretation of any of the provisions of the Act is marked out. Preference is to be given to a construction that would promote its objects. The Act is remedial and should receive "a generous construction"[56].

A refusal to provide services?

Section 66K(1) of the Act makes it unlawful for a person who provides goods or services to discriminate against another person on the ground of that person's impairment, in any of the circumstances identified in pars (a) to (c) of the sub-section. Discrimination is a term of varied meaning but the Act provides its own dictionary. Section 66A spells out when discrimination on the ground of impairment may occur. This case is concerned only with the direct discrimination to which s 66A(1) refers.

Unless there was a failure by the Council or at any rate by the other respondents to provide a relevant service, nothing contrary to the Act took place. The legislature has chosen an inclusive definition of "services"[57], thereby giving the word its ordinary, wide meaning. However par (e) of the definition is directly relevant in that it identifies

"services of the kind provided by a government, a government or public authority or a local government body".

The question whether there has been a refusal to provide a service is a question of fact, to be determined by the Tribunal[58]. An appeal lies from the Tribunal to the Supreme Court "on a question of law"[59]. As it happens, the Tribunal, Murray J and the members of the Full Court all held that the refusal of planning approval was a refusal to provide a service. As mentioned earlier, that particular issue is before the Court by reason of the notice of contention. In the circumstances, the question must be whether there was evidence upon which the Tribunal might properly conclude that there was such a refusal.

Given the breadth of the term "services", it might be readily concluded that a refusal to give planning approval to the application by PLWA was a refusal to provide a service. The contrary argument however is that the service provided by the Council is not the giving of planning approval but the consideration of an application for such approval. It is not encumbent on the Council to give its approval; it may refuse its approval, or grant its approval unconditionally or subject to conditions[60]. The service it provided was to consider the application in question and this it did. This approach to the issue is in my view too narrow.

The Council is responsible for preparing and giving effect to a town planning scheme. In discharge of that responsibility the Council adopted the "City of Perth City Planning Scheme" (1985), the objects of which include the classification and zoning of land within the Scheme Area for use for the purposes described and fostering and controlling development of land within the Scheme Area. The Tribunal said:

"Taking the 'broad view', there can be no doubt that in administering a town planning scheme ... and generally implementing or enforcing measures directed to the amenity of the area ... the City of Perth is providing a service to residents. In this context, the exercise of a discretion to give planning approval to allow the use of premises for a particular purpose in a specific locality is part of that service and is itself a 'service' within the meaning of s 4(1) of the Act."

On appeal from the Tribunal, Murray J held that there was nothing in the Act which required that "services" be given a specialised or restricted meaning. He regarded the conclusion reached on the point by the Tribunal as open to the Tribunal and furthermore that it was "a conclusion of fact and not of law". It followed that no appeal lay on this ground. In the Full Court Ipp J said:

"[T]he granting of a change in use, in the context of the relevant legislation, is a service provided to the community by the City".

But, it is said, the service is not one of granting approval. To say that is to disregard the fact that the Council may grant or refuse an application to rezone so as to permit a hitherto unpermitted use. But how, it is asked, can a refusal of an application be a refusal to provide a service? The answer to this may be found in s 66K(1)(c) of the Act. If the service is seen as the consideration of the application and its disposition and if it appears that the Council refused the application on the ground of impairment, why is that not discrimination "in the manner in which the first-mentioned person provides the other person with those ... services"? Consideration of an application is of itself hardly a service; it is the disposition of the application which either provides or refuses the service. In the manner of that refusal there may be discrimination.

In the course of argument reference was made to some English decisions. One was Savjani v IRC[61] which concerned the Inland Revenue office where information and advice were given to members of the public on their tax affairs. Where tax relief was claimed in respect of a child the office had a policy of accepting a short form of birth certificate which was issued free but, in the case of taxpayers who came from the Indian sub-continent, a full certified copy of the birth certificate costing [sterling]2.50 was required. The Court of Appeal held that this constituted discrimination against the appellant. Lord Denning MR concluded[62]:

"It seems to me that the provisions for granting relief, giving advice, and the advice which is given, are the provision of services."

Templeman LJ drew a distinction between the function of collecting revenue and that of providing information and said[63]:

" Now if the inspector or the board make it more difficult for a taxpayer - who is entitled to relief; he does satisfy all the conditions - to obtain that relief than they do for other taxpayers, they are discriminating in the provision of the service to the public and the service to him of enabling tax relief to be obtained." This division of function approach was adopted by Lord Fraser in

R v Entry Clearance Officer; Ex parte Amin[64] and also by Hutchison LJ in Farah v Commissioner of Police of the Metropolis[65] who concluded that the words "services to the public"

"are entirely apt to cover those parts of a police officer's duties involving assistance to or protection of members of the public".

In other words, the appellant's real case in this regard is that, in exercising its discretion in the disposition of the application, the Council acted in a discriminatory manner. It may be that this is not the way in which the refusal of services was approached in the Tribunal or in the Supreme Court. However, such a case formed part of the points of claim lodged with the Tribunal. In any event the issue is raised by the notice of contention and the appellant is entitled to answer the notice by reference to any argument that fairly meets the contention.

Is the appellant an aggrieved person?

Part IVA of the Act is entitled: DISCRIMINATION ON THE GROUND OF IMPAIRMENT. Division 1 - General contains s 66A which identifies in general terms what constitutes such discrimination. Sub-section (1) speaks of a person (referred to as the "discriminator") discriminating against another person (referred to as the "aggrieved person") on the ground of impairment.

The complaint to the Tribunal was made by PLWA and by some of its members. When the matter came on for hearing before the Tribunal, PLWA was deleted as a party and DL, a representative member, was substituted, presumably on the basis that the association could not suffer an impairment. Nevertheless PLWA had been the applicant for approval. The appellant now remains as the only complainant. The Tribunal held that the individual members of PLWA were aggrieved persons because they could physically occupy the premises and their interests would thereby be prejudicially affected if occupation was refused. Murray J again held that there was no error of law on the part of the Tribunal in this regard. In the Full Court Ipp J opted for a broad interpretation of "aggrieved person", pointing out that it was at all times clear that PLWA was acting on behalf of its members. His Honour said:

" It is ... necessary to point out that a person can refuse services to another even if the other person does not expressly ask that the services be provided. I would have thought it all too obvious that persons, who announce publicly that they will refuse to provide services to an identified group of impaired persons, would thereby be refusing to provide those services to the individual members of the group. That would be the case even though none of the individual members requested that the services be provided."

Ipp J held that the then respondents were aggrieved, commenting that if the narrow construction urged by the then appellant was accepted, it would be impossible for discriminatory conduct to occur when refusal to provide services was to a corporate body by reason of discriminatory attitudes towards its members. Wallwork J did not address this issue. Scott J held that the refusal was made to the PLWA, not to the individual members.

By their notice of contention the respondents in effect challenge the finding of the Tribunal. I would accept the appellant's argument in this regard, for the following reasons. The appellant argued that as the benefit of the change of use, if granted, would have gone to the members of PLWA and because the change was for a specific not a general purpose, the refusal was in truth a refusal to provide the benefit of approval (a service) to the members of PLWA. As to "person aggrieved", he relied upon a passage from the judgment of Stephen J in Koowarta v Bjelke-Petersen in which his Honour said[66]:

"It is not, I think, to the point that, as a matter of form, what the Minister withheld was approval of a transfer to the Aboriginal Land Fund Commission. The Minister's reasons for refusal disclose that he regarded approval as involving use of the property by Aborigines and refusal of approval as preventing that use."

It is true that the passage must be read in the light of the phrase "second person" in the Racial Discrimination Act 1975 (Cth); the question here is one of the interpretation of a different Act. Nevertheless the passage does point up the need to look at substance rather than form in considering such an expression as "person aggrieved". There was never any doubt that the application by PLWA was made on behalf of its members including the appellant.

I agree with Ipp J's approach to this issue and accept the Tribunal's conclusion that the appellant was entitled to assert that there had been discrimination against him[67].

The test to be applied to the Council

Section 5 of the Act provides that a reference in the Parts identified, which include Pt IVA,

"to the doing of an act by reason of a particular matter includes a reference to the doing of an act by reason of 2 or more matters that include the particular matter, whether or not the particular matter is the dominant or substantial reason for the doing of the act".

Sections 66A and 66K refer to discrimination "on the ground of" impairment. As this matter has progressed through the courts, it has been accepted that "by reason of" is not materially different from "on the ground of". Hence, once a conclusion is reached that discriminatory factors were one ground on which the Council reached its decision to refuse the application, it follows that there was a contravention of s 66K even if the discriminatory ground was not the principal ground upon which the decision was made.

It further follows that the particular issue is whether the discriminatory ground on which 5 of the 13 Councillors resolved to refuse the application could be imputed to the Council and with what consequences. In disposing of this issue, three possible tests have emerged from the proceedings below.

1. The test adopted by the Tribunal and upheld by Murray J was that the ground of decision of any Councillor whose decision was causative, in the sense that "but for" that decision approval would not have been refused, can be imputed to the Council. On this test, since there was a 13 to 12 majority against approval, the vote of every Councillor in the majority was causative. Consequently, in the words of Murray J, "it would be sufficient if the vote of one of those councillors was produced by or grounded in the consideration of the impairment of the aggrieved person".

2. The test favoured by Ipp J was that relevantly the ground of decision is the ground on which a majority of the voting Councillors made their decision.

3. The test favoured by Wallwork J was to look at the ground on which a majority of the majority Councillors made their decision. In the present case, presumably 7 Councillors would have had to vote on an improper ground for that ground to be imputed to the Council.

Scott J held that the complainants had been unable to identify the reasons for decision of the Council.

The "but for" test, which has featured in some decisions relating to causation in negligence actions, has been rejected as a definitive test of causation[68]. That is not to say that it has no part in this appeal. It has a respectable provenance in situations having some comparability to the present one. Thus in Whitehouse v Carlton Hotel Pty Ltd, where it was held that an allotment of shares was made for an impermissible purpose, Mason, Deane and Dawson JJ said[69]:

"As a matter of logic and principle, the preferable view would seem to be that, regardless of whether the impermissible purpose was the dominant one or but one of a number of significantly contributing causes, the allotment will be invalidated if the impermissible purpose was causative in the sense that, but for its presence, 'the power would not have been exercised'". While not relying on the expression "but for", the House of Lords in

R v Birmingham City Council; Ex parte Equal Opportunities Commission[70] and in James v Eastleigh Borough Council[71] applied a causative construction to the phrase "on the ground of" in discrimination legislation. In other words the test to be applied was objective in the sense that it was necessary to show no more than that "but for" the prohibited ground, the complainant would have been treated differently.

It is true that these decisions are not concerned with the attribution of a ground of a decision to a corporate body. However they offer guidance. The decision of the Council must have been on the ground of impairment of members of PLWA before the Act could operate on the refusal of approval. In the present case each Councillor in the majority determined the outcome by the vote he or she cast. If one or more of these Councillors voted on an impermissible ground, whether or not that was "the dominant or substantial reason"[72], that vote determined the outcome because the result would have been different "but for" the vote of that Councillor. The City of Perth could only act through its Council; the Council could only act through the vote of its members; the vote of every member of the majority was causative in the sense that the application would not have been refused but for each of those votes; and one, in fact five, Councillors reached a decision on a ground that was unlawful. The decision of the Council was likewise infected.

To whom is the impaired person to be compared?

Under s 66A a person discriminates against another on the ground of impairment in the circumstances there identified.

The respondents contended that while the notional person to whom the impaired person must be compared in terms of s 66A is free of the impairment, that person retains the characteristics imputed to or which characterise the impaired person. Put another way, the features identified in pars (b) to (d) of s 66A(1) are shared by both the impaired and the notional person and are included in the "circumstances" identified in the section as those in which the differential treatment is to be considered. On the other hand, the appellant contended that such an approach would fatally frustrate the purposes of the Act. Thus, he said, if infectiousness is a characteristic of sufferers of AIDS (which is an impairment) and people would discriminate equally against those who are infectious but do not have AIDS, it would follow that there has been no discrimination under the Act against people with AIDS. Likewise, he said, if illegal drug use or homosexuality is a perceived characteristic of those who are HIV positive, discriminating against AIDS sufferers would not be contrary to the Act so long as the discriminator would also discriminate against illicit drug users and homosexuals who do not have AIDS.

The illustration given in the course of argument before the Court is apt. On the construction for which the respondents contended, if dangerousness was a characteristic imputed to paranoid or schizoid personalities, there could be no discrimination against persons with those personalities.

The point was made by the President of the Human Rights and Equal Opportunity Commission in a passage quoted by Wilcox J in The Commonwealth v Human Rights Commission[73] and by Lockhart J in Human Rights and Equal Opportunity Commission v Mt Isa Mines Ltd[74]:

"It would fatally frustrate the purposes of the Act if the matters which it expressly identifies as constituting unacceptable bases for differential treatment ... could be seized upon as rendering the overall circumstances materially different, with the result that the treatment could never be discriminatory within the meaning of the Act."

In my view these considerations lead to the construction of the Act argued for by the appellant and upheld by the Tribunal and Murray J.

The process of construction and application of the relevant provisions of the legislation is as follows. The impairment must be identified with reference to the definition in s 4(1) of the Act. This is so expressed as to identify various "conditions" by reference to defects or disturbances in the normal structure or functioning of a person's body or brain, and to illnesses or conditions which impair thought processes, perception of reality, emotions or judgment, or which result in disturbed behaviour. The impairment of the aggrieved person is an essential element in all that follows.

The next step is to ascertain whether there has been any treatment by the discriminator of the aggrieved person "on the ground of impairment". That portion of s 66A(1) which comprises pars (a) to (d) and the immediately preceding words "on the ground of" are declaratory or explanatory of the expression in the opening passage of s 66A(1) "a person ... discriminates ... on the ground of impairment if ...". Paragraphs (b) and (c) refer to characteristics which appertain generally, or are generally imputed to, persons having the same impairment as the aggrieved person. The result is that there may be wrongful discrimination against the aggrieved person "on the ground of impairment" where the ground is not the impairment itself but one or other of these characteristics. Paragraphs (b) and (c) (and par (d) also) add to the unacceptable bases for differential conduct and in this way expand the scope of the sub-section. They do not limit the overall operation of the sub-section and thus of the Act.

Then a comparison must be made. This involves consideration of how the discriminator treats or would treat a person who does not have "such an impairment". In making the comparison the characteristics referred to in pars (b) and (c) of s 66A(1) are to be ignored. When s 66A(1) concludes with the words "such an impairment", the correspondence is with "the ground of impairment" in the opening words of the sub-section. Any other approach would render the Act ineffective.

Conclusion

It follows from these reasons that both grounds of appeal succeed and both grounds of the notice of contention fail.

In that event a question arises whether s 680 of the Local Government Act 1960 (WA) applies to the acts of the Councillors. I agree with Kirby J that an error of law occurred in the Tribunal which necessitates that this aspect be dealt with by the Tribunal.

I also agree with the orders proposed by Kirby J.

GUMMOW J

The facts giving rise to this litigation and the course of the litigation in the Supreme Court of Western Australia are detailed in the reasons for judgment of Kirby J. I need not repeat them. However, it should be noted that the Equal Opportunity Tribunal ("the Tribunal") found that the application for the use of the premises at Walcott Street, North Perth, as a "daytime drop-in centre" for persons who were HIV positive was rejected on 19 March 1990 upon a motion lost by 13:12 votes in the council of the City of Perth ("the Council"). The application had been made by People Living with AIDS (WA) Inc ("PLWA"). This was an association incorporated under the Associations Incorporation Act 1987 (WA). An appeal to the Minister was successful and the application was approved on 6 April 1990. However, the complaints giving rise to this litigation concern the treatment of the matter by the Council.

The Tribunal found that, of the majority of 13, the votes of Councillors Scurria, Vlahos, Salpietro, David Nairn and Donald Nairn were "grounded on the AIDS factor" and that, whilst he did not vote, Councillor Nattrass "advertently" encouraged councillors to vote against the motion "because of the AIDS factor". These six councillors are the second to seventh respondents to the present appeal. The Tribunal held that the votes of Councillors Scurria, Vlahos, Salpietro, David Nairn and Donald Nairn were "causative in terms of the decision of the Council (and hence the City of Perth ['the City'] whose executive decision-making body the Council was), in that but for them that decision would not have been made".
The Tribunal is established under Pt VIII (ss 96-137) of the Equal Opportunity Act 1984 (WA) ("the Act"). The appellant obtained from it orders under s 127(b)(i) that the respondents pay to him damages by way of compensation for loss or damage suffered by reason of their conduct.

The appeal to the Supreme Court of Western Australia by the City and those councillors who are now the second to seventh respondents was dismissed by Murray J[75]. Section 134 of the Act provided that the appeal was limited to questions of law. An appeal to the Full Court was allowed (Ipp, Wallwork and Scott JJ)[76].

The Act

I should begin by some reference to provisions of the Act. One of the objects of the Act, specified in s 3(a) is:

"to eliminate, so far as is possible, discrimination against persons on the ground of sex, marital status or pregnancy, race, religious or political conviction or impairment in the areas of work, accommodation, education, the provision of goods, facilities and services and the activities of clubs".

Section 18 of the Interpretation Act 1984 (WA) ("the Interpretation Act") requires preference to be given in the interpretation of a provision of a written law to a construction that would promote the purpose or object underlying that law over a construction that would not promote that purpose or object.

This case is concerned with discrimination on the ground of impairment. Provision with respect to this is made in Pt IVA (ss 66A-66U). Part IVA and consequential amendments were inserted by the Equal Opportunity Amendment Act 1988 (WA). Section 4(1) of the Act contains the following definition of "impairment":

"'impairment' in relation to a person, means one or more of the following conditions -

(a) any defect or disturbance in the normal structure or functioning of a person's body;

(b) any defect or disturbance in the normal structure or functioning of a person's brain; or

(c) any illness or condition which impairs a person's thought processes, perception of reality, emotions or judgment or which results in disturbed behaviour,

whether arising from a condition subsisting at birth or from an illness or injury and includes an impairment which presently exists or existed in the past but has now ceased to exist."

Section 66A identifies that conduct which amounts to discrimination on the ground of impairment. Before turning to the detailed provisions of s 66A, it may be observed that "discrimination", as a matter of ordinary English, has quite distinct shades of meaning. Some of these lack the critical if not pejorative connotation the term has in human rights legislation. Thus, "discrimination" may identify the ability to observe accurately and make fine distinctions with acuity, good judgment or taste, as well as the making of unjust or prejudicial distinctions.

In Australia, discrimination is also a constitutional concept. The terms "discriminate" or "discrimination" appear in various provisions of the Constitution, notably ss 51(ii), 102 and 117. Section 117 states:

"A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State."

Section 51(ii) authorises the making of laws with respect to taxation "but so as not to discriminate between States or parts of States". In Street v Queensland Bar Association, when dealing with s 117, Gaudron J said[77]:

"Although in its primary sense 'discrimination' refers to the process of differentiating between persons or things possessing different properties, in legal usage it signifies the process by which different treatment is accorded to persons or things by reference to considerations which are irrelevant to the object to be attained. The primary sense of the word is 'discrimination between'; the legal sense is 'discrimination against'."

Further, in Castlemaine Tooheys Ltd v South Australia, a case concerned with the application of s 92 of the Constitution after Cole v Whitfield[78], Gaudron and McHugh JJ said[79]:

"A law is discriminatory if it operates by reference to a distinction which some overriding law decrees to be irrelevant or by reference to a distinction which is in fact irrelevant[80] to the object to be attained; a law is discriminatory if, although it operates by reference to a relevant distinction, the different treatment thereby assigned is not appropriate and adapted to the difference or differences which support that distinction. A law is also discriminatory if, although there is a relevant difference, it proceeds as though there is no such difference, or, in other words, if it treats equally things that are unequal - unless, perhaps, there is no practical basis for differentiation."

This passage deals with species of discrimination which elsewhere have been identified as "direct" and "indirect" discrimination[81]. The succinct terms by which the fundamental precepts are explained in this passage have been eschewed by legislatures when framing human rights legislation, such as the Act. Language has been employed which is both complex and obscure and productive of further disputation.

Section 66A of the Act is itself a striking example. Sub-sections (1), (2) and (3) state:

"(1) For the purposes of this Act, a person (in this subsection referred to as the 'discriminator') discriminates against another person (in this subsection referred to as the 'aggrieved person') on the ground of impairment if, on the ground of -

(a) the impairment of the aggrieved person;

(b) a characteristic that appertains generally to persons having the same impairment as the aggrieved person;

(c) a characteristic that is generally imputed to persons having the same impairment as the aggrieved person; or

(d) a requirement that the aggrieved person be accompanied by or in possession of any palliative device in respect of that person's impairment,

the discriminator treats the aggrieved person less favourably than in the same circumstances, or in circumstances that are not materially different, the discriminator treats or would treat a person who does not have such an impairment.

(2) For the purposes of subsection (1), circumstances in which a person treats or would treat another person who has an impairment are not materially different by reason of the fact that different accommodations or services may be required by the person who has an impairment.

(3) For the purposes of this Act, a person (in this subsection referred to as the 'discriminator') discriminates against another person (in this subsection referred to as the 'aggrieved person') on the ground of impairment if the discriminator requires the aggrieved person to comply with a requirement or condition -

(a) with which a substantially higher proportion of persons who do not have the same impairment as the aggrieved person comply or are able to comply;

(b) which is not reasonable having regard to the circumstances of the case; and

(c) with which the aggrieved person does not or is not able to comply."

Section 66A(1) is concerned with direct and s 66A(3) with indirect discrimination. This case is said to arise under s 66A(1).

The conclusion that the appellant is an "aggrieved person" within s 66A(1) is also in conformity with the ample construction given to that phrase in other rights-protective legislation. Similar formulae have long been employed in a wide variety of statutory contexts in many jurisdictions and elaborated by much decisional law. Such words are most commonly used to define a class of persons who will have the necessary standing to bring proceedings in identified circumstances. The meaning ascribed to the expression was formerly confined to describing a class of persons suffering a particular legal grievance[253]. However, a contrary intention might appear from the context[254]. Thus, it was said in Sevenoaks Urban Council v Twynam[255]:

"The problem with which we are concerned is not, what is the meaning of the expression "aggrieved" in any one of a dozen other statutes, but what is its meaning in this part of this statute?"

Particularly in relation to the growing body of legislation providing for the challenge by "persons aggrieved" to decisions by public authorities of wide public interest or potential community impact, courts have lately demonstrated an increasing willingness to adopt a broader view of the scope of such expressions. In the Privy Council in Attorney-General of the Gambia v N'Jie[256], Lord Denning observed:

"The words 'person aggrieved' are of wide import and should not be subjected to a restrictive interpretation. They do not include, of course, a mere busybody who is interfering in things which do not concern him; but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interests."

Australian courts have followed this approach[257]. In recognition of the development of much legislation providing ample statutory rights to challenge decisions of public authorities and governmental agencies, the trend of recent case law in this country has been to give a broad operation to such provisions rather than to construe them as words of limitation[258]. A good illustration of this trend may be found in Coles Myer Ltd v O'Brien[259].

The term "[a] person who is aggrieved" was chosen to express the interest necessary to enliven the Administrative Decisions (Judicial Review) Act 1977 (Cth)[260]. It has often been pointed out in that context that those words "should not ... be given a narrow construction"[261]. The trend towards a broader approach to such provisions has also been remarked upon by the Australian Law Reform Commission[262]. The trend has not been confined to Australia. It is also evident in Canada[263], India[264], New Zealand[265] and the United States[266].

These developments help to confirm the approach which I favour holding that the appellant is an "aggrieved person" within the provisions of the Act in question here. Those provisions appear in legislation with the stated objective "to eliminate, so far as is possible, discrimination against persons on the ground of ... impairment in the areas of ... facilities and services"[267]. That objective would not be promoted by a narrow approach to the meaning of "aggrieved person" for which the respondents contend. Such a construction should be rejected.

The councillors' issue

Finally, the individual respondents argued, that they were not personally liable in respect of the unlawful discrimination found against them. They relied on the provisions of s 680 of the LGA which is set out in the reasons of Dawson and Gaudron JJ. They submitted that no "intentional misconduct or ... negligence" on their part was found. Nor did the facts, as determined by the Tribunal, support a conclusion that such aggravating features of their conduct were present. Still less, in the absence of specific findings, did the facts found require that conclusion as the only one available.

The state of the record on this point is unsatisfactory. It was conceded for the appellant that the points of defence before the Tribunal had raised the councillors' claim of immunity based on s 680. It was also conceded that the issue had been litigated before the Tribunal and "argued in some detail"[268]. Despite careful attention to so many other issues, the Tribunal appears to have overlooked this one. There is considerable discussion in the Tribunal's reasons concerning the liability of the individual respondents who were found to have voted against the application on the ground of the impairment of the members of PLWA. All but one of those respondents were found to be personally liable upon the ground that each of them had advertently "caused" or "aided" the City to do the unlawful discriminatory act. The remaining councillor (Cr Nattrass), who had spoken but not voted, was found to have "aided" the City to commit the act of unlawful discrimination. In this respect, the Tribunal relied upon s 160 of the Act. Although the application of that section was challenged below, it has not been contested in this Court. It will be assumed that it provides a basis for rendering each of the individual respondents liable under the Act for the unlawful discrimination found against them. Each was thus, on the face of things, open to the orders made for the payment of compensation.

That leaves the question whether such liability is excluded by the special provisions of s 680 of the LGA. The notice of appeal to the Supreme Court from the Tribunal raised the application of s 680[269]. The ground was addressed by the primary Judge[270]. He pointed out that no authority had been cited in support of the submission. For two reasons he held that the section did not apply to confer the immunity claimed. The first was that the actions of the members of the Council could not, within the terms of the LGA,be "an act done by the Council in the execution and performance of the powers and duties conferred upon it"[271]. This was so because no power or duty was conferred upon the Council to authorise the performance of an unlawful act on the part of a member of the Council. Secondly, his Honour held that the exemption provided by s 680 assumed the lawful execution and performance by the Council of its powers and duties. As found, the performance in question was affected by the unlawful consideration which determined the vote of the named councillors. The section could not, therefore, operate to exempt those councillors from their personal liability.

Although the point was carried forward in the appeal to the Full Court it was not decided there. The respondents were relieved of the orders made against them upon the reasons already examined.

The decision of the primary Judge was given after, but made no reference to, the decision of this Court in Webster v Lampard[272]. That case concerned another exempting provision in Western Australian legislation, namely the Police Act 1892 (WA), s 138 (h). That section provides that "[n]o action shall lie against any ... Officer of Police ... on account of any act, matter, or thing done ... in carrying the provisions of [the Police] Act into effect ... unless there is direct proof of corruption or malice"[273]. Summary judgment was given against a plaintiff who sued a police officer who had pleaded that, at the relevant time, he was "acting in good faith and without corruption or malice". This Court unanimously upheld the appeal against that summary order. It emphasised that the general onus of establishing a connection between the conduct complained of and the protected official duty rested (in the absence of special legislative provisions) upon the defendant invoking the defence[274]. The onus of establishing that the defendant's ostensible pursuit of public duty was actuated by a wrong or indirect motive rested upon the plaintiff asserting that contention[275]. The Court emphasised that it was inappropriate to deal with the issue in an abstract way. There had to be some factual basis for the belief. Until the relevant dispute of fact (in that case the belief of the police officer) was resolved, the matter was not one appropriate for summary judgment[276].

In the course of its consideration of Webster, this Court referred to several authorities in which protective provisions, designed to exclude the liability of public officials, had been examined[277]. Reference was made to G Scammell & Nephew Limited v Hurley[278]where the English Court of Appeal upheld an appeal by councillors against a judgment that they had conspired to induce their Council to breach its statutory duty by discontinuing the supply of electricity for power and lighting to the plaintiff. The councillors relied on the provisions in the Public Authorities Protection Act 1893 (UK). In the Court of Appeal, Scrutton LJ said[279]:

"[W]hen a defendant appears to be acting as a member of a public body under statutory authority and pleads the Public Authorities Protection Act, the plaintiff can defeat that claim by proving on sufficient evidence that the defendant was not really intending to act in pursuance of the statutory authority, but was using his pretended authority for some improper motive, such as spite, or a purpose entirely outside statutory justification. When defendants are found purporting to execute a statute, the burden of proof in my opinion is on the plaintiffs to prove the existence of the dishonest motives above described and the absence of any honest desire to execute the statute, and such existence and absence should only be found on strong and cogent evidence."

The clear purpose of s 680 of the LGAis to afford a high measure of protection to a member of a council of a local government body. The section should not be given a narrow construction. Such members of councils are, and are intended to be, drawn from a wide cross-section of the community. Inevitably, they reflect the variety of opinions, attitudes and prejudices which exist in the community. If a narrow construction of s 680 of the LGAwere upheld, it could inhibit the participation in the activities of the councils of local government bodies of many ordinary citizens who could not afford the risk that their conduct would render them personally liable, although they were attempting and purporting to discharge the performance of their duties of office.

According to the findings of the Tribunal in this case, those councillors who came from the ward in which the subject premises were situated, voted as they did because they conceived it to be their duty to reflect the wishes of the majority of the ratepayers, as they understood them to be. It is inevitable, in the case of elected office-holders, that they would often feel pressure to act in such a way. To construe s 680 so as to give protection only to the lawful execution and performance, or non-performance, of the duties of a council member would, in my opinion, unduly narrow its intended operation. For performance or non-performance which is lawful, the councillor would ordinarily need no protection. The utility of such a provision really arises only where the performance or non-performance has been affected by an erroneous or unlawful consideration. It must be assumed that the protection of the section was intended to apply to such a case.

The individual respondents complain that the findings made by the Tribunal about their conduct were not specifically addressed to the issue tendered by their defence based on s 680. Although the Tribunal made quite detailed findings about the motivations of individual council members, it did not turn its attention to whether they, or any of them, had been "guilty of wilful or intentional misconduct or of negligence". Whilst negligence might safely be ignored in the facts of this case, the wilfulness or intentional character of any "misconduct" on the part of the individual council members in casting their vote as they did in an unlawful way (as I have found) was never the subject of a finding by the Tribunal. Yet it is the only body with the authority to make any relevant factual findings. Only if a court could hold that s 680had no possible application or that the evidence permitted but one conclusion, could this apparent oversight of the Tribunal, in failing to address this issue, be cured on appeal.

The decision in Webster emphasises the importance of applying exempting provisions such as s 680 of the LGAonly after the relevant factual findings are made. As they were not made in this case, although the issue was tendered for decision, an error of law has occurred in the Tribunal. It is one which was complained of to the Supreme Court. Because the primary Judge took a view of s 680 which was unduly narrow an error of law has occurred which the Full Court failed to address. This Court should now do so because it cannot confirm the order of dismissal entered by the Full Court. Neither can it make the necessary factual finding for itself. Nor can it uphold the immunity claimed upon the basis that only one factual finding was open.

Despite the further extension of this litigation, criticised by the Tribunal as "exceptionally long and unfortunate"[280], there is no alternative, in the opinions which I hold, but to return the proceedings to the Tribunal so that it can give such relief to the individual respondents on this point of their defence as is required by law. The power of the Supreme Court to return proceedings to the Tribunal in the circumstances is clearly provided for[281]. It should be exercised in this case.

Conclusion and orders

The appellant is entitled to succeed in the appeal in the case between him and the City of Perth. In those proceedings the appeal should be allowed with costs. The orders of the Full Court of the Supreme Court of Western Australia should be set aside. In lieu thereof, it should be ordered that the appeal to that Court be dismissed with costs. The order that the City pay the appellant the damages ordered by the Tribunal will thereby be restored.

In the proceedings between the appellant and the individual (second to seventh) respondents, the appeal should also be allowed. The orders of the Full Court of the Supreme Court of Western Australia should be set aside. In lieu thereof, it should be ordered that the appeal to that Court by the said respondents should be allowed. The judgment of Murray J should be set aside. In place of his Honour's orders, it should be ordered that the proceedings be returned to the Equal Opportunity Tribunal to determine, conformably with law, the defence of those respondents based on s 680 of the LGA.


FOOTNOTES

[1] See Waters v Public Transport Corporation (1991) 173 CLR 349 at 392-393.
[2] Unreported decision of 21 July 1993. A digest of the Tribunal's decision is published in [1993] EOC |P 92-510.
[3] Section 134 limited the appeal to "a question of law".
[4] Perth City v DL (1994) 88 LGERA 45.
[5] Perth City v DL (1996) 90 LGERA 178.
[6] (1996) 90 LGERA 178 at 190.
[7] (1996) 90 LGERA 178 at 199.
[8] (1996) 90 LGERA 178 at 207.
[9] (1996) 90 LGERA 178 at 223.
[10] Section 3(a).
[11] cf Waters v Public Transport Corporation (1991) 173 CLR 349 at 402-403.
[12] West v AGC (Advances) Ltd (1986) 5 NSWLR 610 at 631.
[13] Coburn v Human Rights Commission [1994] 3 NZLR 323 at 333.
[14] [1980] 2 FC 122 at 131-132.
[15] RSC 1952 c148 as amended by SC 1970-1972 c 63.
[16] SC 1976-1977 c 33.
[17] [1981] QB 458.
[18] [1981] QB 458 at 467.
[19] [1983] 2 AC 818.
[20] [1983] 2 AC 818 at 835.
[21] [1983] 2 AC 818 at 834.
[22] [1997] 2 WLR 824; [1997] 1 All ER 289.
[23] [1997] 2 WLR 824 at 840; [1997] 1 All ER 289 at 304.
[24] [1997] 2 WLR 824 at 840; [1997] 1 All ER 289 at 304.
[25] [1981] QB 458 at 466-467.
[26] (1990) 169 CLR 436 at 478.
[27] (1991) 173 CLR 349 at 409.
[28] (1993) 41 FCR 182; 113 ALR 39.
[29] Hope v Bathurst City Council (1980) 144 CLR 1 at 7-8.
[30] Waters (1991) 173 CLR 349 at 404-405.
[31] Clause 36(1) of the City of Perth City Planning Scheme.
[32] Emphasis added.
[33] Section 9(2). The Local Government Act was largely repealed and replaced by the Local Government Act 1995 (WA) with effect from 1 July 1996, but this has no bearing on the present appeal.
[34] See s 9(5) of the Local Government Act, s 7 of the Town Planning and Development Act 1928 (WA)and cl 8 of the Planning Scheme.
[35] Clause 34.
[36] In the case of an equal division of votes and, in the absence of a casting vote, the question was to be determined in the negative. See ss 173(8)(a), (aa) and (b).
[37] Section 160 of the Act provides: " A person who causes, instructs, induces, aids, or permits another person to do an act that is unlawful under this Act shall for the purposes of this Act be taken also to have done the act."
[38] The Tribunal ordered that the City of Perth and the six Councillors pay damages of $8,000 in total, apportioned as between the three individual complainants then surviving and as between the respondents. The appellant was to receive a total of $4,000; $2,000 from the City of Perth and $2,000 from the Councillors. No orders were considered appropriate and, thus, no order was made on the representative complaint.
[39] Perth City v DL (1994) 88 LGERA 45. Note that by s 134(1) of the Act, an appeal is limited to questions of law.
[40] Perth City v DL (1996) 90 LGERA 178.
[41] Section 17 of the Equal Opportunity Amendment Act 1992 (WA) which took effect on 8 January 1993.
[42] This issue arises on the respondents' Amended Notice of Contention.
[43] This issue also arises on the respondents' Amended Notice of Contention.
[44] This issue arises on the Notice of Appeal, it having been decided adversely to the appellant by Ipp and Scott JJ in the Full Court.
[45] This issue is also raised in the Notice of Appeal, it having been decided adversely to the appellant by all members of the Full Court.
[46] Section 680 relevantly provided: " In the execution and performance by a council of the powers and duties conferred upon it by this Act, a member ... is not personally liable in respect of the execution or non-execution of the powers or the performance or non-performance of the duties, unless it is proved that he has been guilty of wilful or intentional misconduct or of negligence".
[47] This issue arises on the respondents' Amended Notice of Contention.
[48] Waters v Public Transport Corporation (1991) 173 CLR 349 at 359 per Mason CJ and Gaudron J (with whom Deane J agreed). See also at 372 per Brennan J, 394 per Dawson and Toohey JJ and 406-407 per McHugh J.
[49] Savjani v IRC [1981] QB 458 at 467 per Templeman LJ.
[50] Farah v Commissioner of Police of the Metropolis [1997] 2 WLR 824 at 835;[1997] 1 All ER 289 at 299 per Hutchison LJ.
[51] R v Immigration Appeal Tribunal; Ex parte Kassam [1980] 1 WLR 1037; [1980] 2 All ER 330.
[52] [1983] 2 AC 818 at 835 per Lord Fraser of Tullybelton (with whom Lord Keith of Kinkel and Lord Brightman agreed).
[53] See cl 40(1) of the Planning Scheme, which provides: " The Council, having regard to [specified matters], may refuse to approve any application for town planning approval or may grant its approval unconditionally or subject to such conditions as it may deem fit."
[54] There was an earlier appeal to the Supreme Court against a ruling of the Tribunal that the respondents had a case to answer. The appeal was dismissed.
[55] Interpretation Act 1984 (WA), s 18.
[56] Waters v Public Transport Corporation (1991) 173 CLR 349 at 394 per Dawson and Toohey JJ; see also 359 per Mason CJ and Gaudron J, 372 per Brennan J and 406-407 per McHugh J.
[57] s 4(1).
[58] Waters v Public Transport Corporation (1991) 173 CLR 349 at 394 per Dawson and Toohey JJ.
[59] s 134(1).
[60] Clause 40(1) of the Planning Scheme.
[61] [1981] QB 458.
[62] [1981] QB 458 at 466.
[63] [1981] QB 458 at 467-468.
[64] [1983] 2 AC 818 at 834-835.
[65] [1997] 2 WLR 824 at 835; [1997] 1 All ER 289 at 299.
[66] (1982) 153 CLR 168 at 221.
[67] Section 66A was amended by s 17 of the Equal Opportunity Amendment Act 1992 (WA) by the insertion of sub-s (1a). The amendment has no application to the present case.

[68] March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506.
[69] (1987) 162 CLR 285 at 294.
[70] [1989] AC 1155.
[71] [1990] 2 AC 751.
[72] s 5.
[73] (1993) 46 FCR 191 at 209; 119 ALR 133 at 151.
[74] (1993) 46 FCR 301 at 327; 118 ALR 80 at 104.
[75] Perth City v DL (1994) 88 LGERA 45.
[76] Perth City v DL (1996) 90 LGERA 178.
[77] (1989) 168 CLR 461 at 570-571.
[78] (1988) 165 CLR 360.
[79] (1990) 169 CLR 436 at 478.
[80] An example of this species of discrimination identified by Gaudron and McHugh JJ may be a law which is passed in reliance upon s 51(ii) and which prefers a locality "merely because it is locality" and because the locality is "a particular part of a particular State": W R Moran Pty Ltd v Deputy Federal Commissioner of Taxation (NSW) (1940) 63 CLR 338 at 348; but cf Commissioner of Taxation v Clyne (1958) 100 CLR 246 at 266.
[81] Waters v Public Transport Corporation (1991) 173 CLR 349 at 357, 392.
[82] Section 40 of the Equal Opportunity Amendment Act 1992 (WA) amended various provisions of the Act, including s 5, by deleting "by reason of" and inserting "on the ground of". See also Waters v Public Transport Corporation (1991) 173 CLR 349 at 359.
[83] [1994] 3 NZLR 323 at 333. See also Waters v Public Transport Corporation (1991) 173 CLR 349 at 359, 372, 394, 406-407; Zarczynska v Levy [1979] 1 WLR 125 at 129; [1979] 1 All ER 814 at 817; Ontario Human Rights Commission v Simpsons-Sears Limited [1985] 2 SCR 536 at 546-547; NZ Van Lines v Proceedings Commissioner [1995] 1 NZLR 100 at 103-104.
[84] The LG Act was repealed and replaced by the Local Government Act 1995 (WA), but this litigation is unaffected by the change in legislation.
[85] Section 680 provides: "In the execution and performance by a council of the powers and duties conferred upon it by this Act, a member or an officer employed or a person engaged by the council is not personally liable in respect of the execution or non-execution of the powers or the performance or non-performance of the duties, unless it is proved that he has been guilty of wilful or intentional misconduct or of negligence, but the provisions of this section do not affect those of section six hundred and thirty-two."
[86] [1996] 1 SCR 571; (1996) 133 DLR (4th) 449.
[87] Human Rights Act, RSY 1986, c 11 (Supp), s 8(a).
[88] [1996] 1 SCR 571 at 639; (1996) 133 DLR (4th) 449 at 498. Her Ladyship dissented in the result but nothing turns upon this for present purposes.
[89] [1980] 2 FC 122.
[90] SC 1976-77, c 33.
[91] SC 1970-71-72, c 63.
[92] [1980] 2 FC 122 at 132.
[93] [1981] QB 458.
[94] [1981] QB 458 at 467; see also per Lord Denning MR at 465-466.
[95] (1993) 41 FCR 182; 113 ALR 39.
[96] cf Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468 at 510, 512, 523; P v P (1994) 181 CLR 583 at 600-601.
[97] [1997] 2 WLR 824; [1997] 1 All ER 289.
[98] [1997] 2 WLR 824 at 840; [1997] 1 All ER 289 at 304.
[99] (1982) 153 CLR 168 at 221-222, 268.
[100] [1990] 1 WLR 1453 at 1458-1459; [1990] 3 All ER 737 at 741. Lord Oliver of Aylmerton agreed in the speech of Lord Lowry. The plaintiff had pleaded, but failed to prove, that all the councillors who voted for the resolution in question were actuated by malice towards her.
[101] (1987) 162 CLR 285 at 294.
[102] (1938) 60 CLR 150 at 186.
[103] (1936) 60 CLR 150 at 185.
[104] (1758) 1 Eden 132 at 138 [28 ER 634 at 637].
[105] (1938) 60 CLR 150 at 164 per Latham CJ, 185-186 per Dixon J.
[106] [1974] AC 821 at 835-836.
[107] Mills v Mills (1938) 60 CLR 150 at 185-186 per Dixon J.
[108] Underhill and Hayton, Law Relating to Trusts and Trustees, 15th ed (1995) at 633-637.
[109] Farwell on Powers, 3rd ed (1916) at 459.
[110] Section 9(1) of the LG Act stated: "The inhabitants for the time being of a municipal district constitute a municipality."
[111] [1983] 1 AC 768.
[112] (1858) 11 Moore 463 [14 ER 770].
[113] (1858) 11 Moore 463 at 524 [14 ER 770 at 793].
[114] R v London County Council; Ex parte Akkersdyk; Ex parte Fermenia [1892] 1 QB 190; Dickason v Edwards (1910) 10 CLR 243 at 252-253, 257, 263; Frome United Breweries Co v Bath Justices [1926] AC 586 at 590-591, 603-606, 615, 619; R v Mullins; Ex parte Stenhouse [1971] Qd R 66; Builders' Registration Board of Queensland v Rauber (1983) 57 ALJR 376 at 385; 47 ALR 55 at 71.
[115] Dickason v Edwards (1910) 10 CLR 243 at 259.
[116] Halsbury's Laws of England, 4th ed Reissue, vol 1(1), Administrative Law, par 90.
[117] See Builders' Registration Board of Queensland v Rauber (1983) 57 ALJR 376 at 385; 47 ALR 55 at 71.
[118] de Smith, Woolf & Jowell, Judicial Review of Administrative Action, 5th ed (1995) at par 12-002.
[119] The term "public body" is used in the definition of "person" in s 5 of the Interpretation Act.
[120] Rowe,"Misunderstanding Anti-Discrimination Law: The New South Wales Court of Appeal in Reddrop" (1986) 10 Adelaide Law Review 318; "Indirection of Sex Discrimination" (1993) 12 University of Tasmania Law Review 88; Skidmore, "No Gays in the Military" (1995) 24 Industrial Law Journal 363, commenting on R v Ministry of Defence; Ex parte Smith [1996] QB 517; O'Byrne and McGinnis, "Case Comment: Vriend v Alberta Plessy Revisited: Lesbian and Gay Rights in the Province of Alberta" (1996) 34 Alberta Law Review 892; Renke, "Case Comment: Vriend v Alberta Discrimination, Burdens of Proof, and Judicial Notice" (1996) 34 Alberta Law Review 925.
[121] For example R v Entry Clearance Officer; Ex parte Amin [1983] 3 WLR 258 at 270; [1983] 2 All ER 864 at 873 per Lord Scarman.
[122] Waters v Public Transport Corporation (1991) 173 CLR 349 at 372.
[123] Local Government Act 1960 (WA) ("LGA"), s 9(4)(a). The City was constituted as a body corporate from 2 January 1871 under s 2 of the Act for Establishing Municipalities (WA) (34 Vic No 6). That Act was repealed and replaced by various statutes before the LGA came into force on 1 July 1961. Various changes have been made to the name and boundaries of the City since 1871, for example by the City of Perth Act 1914 (WA), but this has no application to the issues on this appeal.
[124] LGA, s 9(2).
[125] LGA, s 9(1).
[126] LGA, s 9(5)(a).
[127] LGA, s 9(5)(b)(i).
[128] LGA, s 9(5)(e).
[129] Town Planning and Development Act 1928 (WA).
[130] Under s 7(3).
[131] cll 34(2) and (2A).
[132] cl 34(1).
[133] s 96.
[134] DL v City of Perth unreported, Equal Opportunity Tribunal of Western Australia, 21 July 1993 (the "Tribunal decision") at 14; digested at [1993] EOC 92-510.
[135] Town Planning and Development Act 1928 (WA), s 39.
[136] Tribunal decision at 74.
[137] Tribunal decision at 73.
[138] s 75.
[139] Pursuant to s 93(1)(a) of the Act.
[140] Pursuant to s 125(1) of the Act.
[141] DL v Perth City Council [1992] EOC 92-422.
[142] City of Perth v DL [1992] EOC 92-466 per Anderson J.
[143] The total amount ordered against the City was $4,000: $500 to GM; $2,000 to IW (the appellant); and $1,500 to JW.
[144] GM $500; IW $2,000; and JW $1,500.
[145] Cr David Nairn $400; Cr Donald Nairn $500; Cr Nattrass $400; Cr Salpietro $600; Cr Scurria $1,500; Cr Vlahos $600.
[146] s 134.
[147] Perth City v DL (1994) 88 LGERA 45 at 68 per Murray J.
[148] Perth City v DL (1996) 90 LGERA 178.
[149] Perth City v DL (1996) 90 LGERA 45 per Ipp and Scott JJ.
[150] s 66A.
[151] Referred to in s 66A(1)(b) and (c).
[152] s 66K(1).
[153] s 680.
[154] s 134.
[155] Hope v Bathurst City Council (1980) 144 CLR 1 at 7-8; Waters v Public Transport Corporation (1991) 173 CLR 349 at 361, 394, 404.
[156] cf Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 335-338.
[157] Street v Queensland Bar Association (1989) 168 CLR 461 at 571-573.
[158] cf Waters v Public Transport Corporation (1991) 173 CLR 349 at 359; Street v Queensland Bar Association (1989) 168 CLR 461 at 571.
[159] Waters v Public Transport Corporation (1991) 173 CLR 349 at 372.
[160] Savjani v Inland Revenue Commissioners [1981] QB 458 at 467 per Templeman LJ.
[161] cf Henderson v Victoria [1984] EOC 92-027 at 75,532-75,533; Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 184.
[162] University of British Columbia vBerg [1993] 2 SCR 353 at 370; Gould v Yukon Order of Pioneers [1996] 1 SCR 571; Coburn v Human Rights Commission [1994] 3 NZLR 323 at 333; New Zealand Van Lines Ltd v Proceedings Commissioner [1995] 1 NZLR 100 at 104; cf NM Superannuation Pty Ltd v Young (1993) 113 ALR 39 at 43; Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 423-425.
[163] Interpretation Act 1984 (WA), s 18.
[164] See for example s 118, 121, 125 of the Act.
[165] s 127 of the Act.
[166] James v Eastleigh Borough Council [1990] 2 AC 751 at 774 per Lord Goff of Chieveley.
[167] See for example McHugh J in Waters v Public Transport Corporation (1991) 173 CLR 349 at 401.
[168] cf R v Birmingham City Council; Ex parte Equal Opportunities Commission [1989] AC 1155 at 1194; Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 at 176.
[169] s 66K of the Act.
[170] LGA, s 9(4)(a).
[171] s 66K(1) of the Act.
[172] cf Hoddy v Executive Director Department of Corrective Services [1992] EOC 92-397.
[173] Town Planning and Development Act 1928 (WA), s 7 and City of Perth City Planning Scheme.
[174] Or any function conferred on it by any federal Act declared by the Minister to be complementary to the Tribunal's other functions, in accordance with s 107(4)(b) of the Act.
[175] Perth City v DL (1996) 90 LGERA 178 at 186, 203-204, 214.
[176] LGA, s 9(5)(a).
[177] s 66U.
[178] s 66K(1).
[179] Tribunal decision at 82.
[180] Perth City v DL (1994) 88 LGERA 45 at 62-63.
[181] Perth City v DL (1994) 88 LGERA 45 at 63.
[182] Perth City v DL (1996) 90 LGERA 178 at 196, 199.
[183] (1996) 90 LGERA 178 at 207.
[184] (1996) 90 LGERA 178 at 196 per Ipp J; cf R v Somerset City Council; Ex parte Fewings [1995] 1 WLR 1037 at 1051; [1995] 3 All ER 20 at 33.
[185] (1996) 90 LGERA 178 at 207 per Wallwork J; cf R v Amber Valley District Council, Ex parte Jackson [1984] 3 All ER 501 at 508; Canada (Eve Studio) v Winnipeg [1985] 3 WWR 40 at 42-43.
[186] (1996) 90 LGERA 178 at 223 per Scott J.
[187] s 5 was amended in 1992. See Equal Opportunity Amendment Act 1992 (WA), ss 7 and 40.
[188] [1990] 2 AC 751.
[189] R v Birmingham City Council; Ex parte Equal Opportunities Commission [1989] AC 1155 at 1193-1194.
[190] James v Eastleigh Borough Council [1990] 2 AC 751 at 765.
[191] [1989] AC 1155 at 1194.
[192] [1989] AC 1155 at 1194.
[193] [1990] 2 AC 751 at 764-766.
[194] Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 at 176-177; Waters v Public Transport Corporation (1991) 173 CLR 349 at 359-360 but see 400-401.
[195] Devonport Borough Council v Robbins [1979] 1 NZLR 1 at 25-26.
[196] (1996) 90 LGERA 178 at 188. Note that James v Eastleigh Borough Council [1990] 2 AC 751 concerned a complaint against a local authority.
[197] Whitehouse v Carlton Hotel Pty Ltd (1987) 162 CLR 285 at 294 citing Mills v Mills (1938) 60 CLR 150 at 186.
[198] The Act, s 5.
[199] The Act, s 5.
[200] Ipp and Scott JJ.
[201] Especially Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13.
[202] The Act, s 66A(1)(b).
[203] The Act, s 66A(1)(c).
[204] The Act, s 66A(1)(a).
[205] Tribunal decision at 42-43.
[206] Perth City v DL (1994) 88 LGERA 45 at 64.
[207] Cited in Commonwealth v Human Rights and Equal Opportunity Commission (1993) 46 FCR 191 at 209.
[208] (1996) 90 LGERA 178 at 192 per Ipp J, 218-219 per Scott J.
[209] [1984] 2 NSWLR 13.
[210] Rowe, "Misunderstanding Anti-Discrimination Law: The New South Wales Court of Appeal in Reddrop"(1986) 10 Adelaide Law Review 318.
[211] Waterhouse v Bell (1991) 25 NSWLR 99 at 115.
[212] The Act, s 66K(1)(a).
[213] Waters v Public Transport Corporation (1991) 173 CLR 349 at 361, 404-405.
[214] Waters v Public Transport Corporation (1991) 173 CLR 349 at 405.
[215] For example Henderson v Victoria [1984] EOC 92-027; Pearce v Glebe Administration Board [1985] EOC 92-131; L v Registrar of Births, Deaths and Marriages [1985] EOC 92-142; Jolly v Director-General of Corrections [1985] EOC 92-124; Byham v Preston City Council [1991] EOC 92-377; Woods v Wollongong City Council [1993] EOC 92-486; Woods v Wollongong City Council [No 2] [1993] EOC 92-511.
[216] Proudfoot v ACT Board of Health [1992] EOC 92-417.
[217] R v Immigration Appeal Tribunal; Ex parte Kassam [1980] 1 WLR 1037; [1980] 2 All ER 330; Savjani v Inland Revenue Commissioners [1981] QB 458.
[218] Tribunal decision at 28-29.
[219] Perth City v DL (1994) 88 LGERA 45 at 55.
[220] Perth City v DL (1994) 88 LGERA 45 at 55.
[221] (1996) 90 LGERA 178 at 186-188.
[222] (1996) 90 LGERA 178 at 216.
[223] Perth City v DL (1994) 88 LGERA 45 at 55.
[224] cf Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 354-355; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156.
[225] Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47 at 51.
[226] For example, s 66Q.
[227] Waters v Public Transport Corporation (1991) 173 CLR 349 at 359.
[228] The Act, s 66K(1).
[229] R v Entry Clearance Officer; Ex parte Amin [1983] 3 WLR 258; [1983] 2 All ER 864. See also Bourn and Whitmore, Anti-Discrimination Law in Britain, 3rd ed (1996) at 273-279.
[230] R v Immigration Appeal Tribunal; Ex parte Kassam [1980] 1 WLR 1037; [1980] 2 All ER 330; Savjani v Inland Revenue Commissioners [1981] QB 458; R v Entry Clearance Officer; Ex parte Amin [1983] 3 WLR 258; [1983] 2 All ER 864. See also Farah v Commissioner of Police of the Metropolis [1997] 2 WLR 824; [1997] 1 All ER 289.
[231] [1981] QB 458 at 466, 469; applied Farah v Commissioner of Police of the Metropolis [1997] 2 WLR 824 at 835-836, 840;[1997] 1 All ER 289 at 300, 304.
[232] [1983] 3 WLR 258 at 276; [1983] 2 All ER 864 at 879.
[233] For example Re Singh (Subhaschan) (1988) 86 NR 69 at 76; Attorney General of Canada v Cumming [1980] 2 FC 122 at 132; Canada (Secretary of State for External Affairs) v Menghani (1993) 70 FTR 81 at 94; Canada (Attorney General) v Anvari (1993) 152 NR 241 at 245; Insurance Corporation of British Columbia v Heerspink [1977] 6 WWR 286 at 287.
[234] Dayton v Ewart 72 P 420 at 422 (1903); Pollak v Public Utilities Commission of the District of Columbia 191 F 2d 450 at 453 (1951); Chesterfield Fire Protection District of St Louis County v St Louis County 645 SW 2d 367 at 370-371 (1983).
[235] Kondala Rao v Andh. Pra. S.R.T. [1961] AIRSC 82 at 87.
[236] cf Bropho v Western Australia (1990) 171 CLR 1 at 19.
[237] Hope v Bathurst City Council (1980) 144 CLR 1 at 7-8.
[238] Equal Opportunity Amendment Act 1992 (WA) (Act No 74 of 1992) relevant provisionsin force from 8 January 1993.
[239] (1996) 90 LGERA 178-78,888 per Scott J.
[240] (1982) 153 CLR 168 at 221-222.
[241] Tribunal decision at 20.
[242] The Act, s 66A(1).
[243] Perth City v DL (1994) 88 LGERA 45 at 58-59.
[244] (1996) 90 LGERA 178 at 189.
[245] (1996) 90 LGERA 178 at 221.
[246] (1982) 153 CLR 168.
[247] Racial Discrimination Act 1975 (Cth) s 12(1). See also s 9(1).
[248] Especially (1982) 153 CLR 168 at 222 per Stephen J (Murphy J agreeing), 268 per Brennan J.
[249] Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 221.
[250] See Associations Incorporation Act 1987 (WA), s 10.
[251] See for example Navarro v Spanish American Club of Canberra (Inc) (1987) 87 FLR 390.
[252] (1996) 90 LGERA 178 at 189.
[253] See for example Ex parte Sidebotham (1880) 14 Ch D 458; Buxton v Minister of Housing and Local Government [1961] 1 QB 278 at 285; Day v Hunter [1964] VR 845; Spurling v Development Underwriting (Vic) Pty Ltd [1973] VR 1 at 16-17.
[254] Attorney-General for NSW v Brewery Employés Union of NSW (1908) 6 CLR 469 at 531.
[255] [1929] 2 KB 440 at 443.
[256] [1961] AC 617 at 634.
[257] See for example Coles Myer Ltd v O'Brien (1992) 28 NSWLR 525 at 528-530.
[258] See for example National Trust v Aust T & G [1976] VR 592 applied in Australian Conservation Foundation v Environment Protection Appeal Board [1983] 1 VR 385.
[259] (1992) 28 NSWLR 525.
[260] s 5.
[261] Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 54 FLR 421 at 437.
[262] Australian Law Reform Commission, Standing in Public Interest Litigation, ALRC No 27 (1985) at 76-77, 130-131, 138-139.
[263] For example Thorson v Attorney-General of Canada (No 2) (1974) 43 DLR (3d) 1 at 7.
[264] For example S P Gupta v President of India [1982] AIRSC 149 at 195; Bandhua Mukti Morcha v Union of India [1984] AIRSC 802 at 839.
[265] Environmental Defence Society Inc v South Pacific Aluminium Ltd (No 3) [1981] 1 NZLR 216.
[266] United States v Students Challenging Regulatory Agency Procedures 412 US 669 (1973).
[267] The Act, s 3.
[268] Transcript of proceedings, 12 November 1996 at 89.
[269] Grounds 3(b) and 4(e).
[270] Perth City v DL (1994) 88 LGERA 45 at 66.
[271] Perth City v DL (1994) 88 LGERA 45 at 66.
[272] (1993) 177 CLR 598.
[273] (1993) 177 CLR 598 at 601.
[274] (1993) 177 CLR 598 at 606-607.
[275] (1993) 177 CLR 598 at 607.
[276] (1993) 177 CLR 598 at 611-612.
[277] For example Theobald v Crichmore (1818) 1 B & Ald 227 at 229 [106 ER 83 at 84]; Hamilton v Halesworth (1937) 58 CLR 369 at 377; Little v The Commonwealth (1947) 75 CLR 94 at 108; Trobridge v Hardy (1955) 94 CLR 147 at 156-158; Marshall v Watson (1972) 124 CLR 640 at 651.
[278] [1929] 1 KB 419.
[279] [1929] 1 KB 419 at 429.
[280] Tribunal decision at 1.
[281] The Act, s 134(4)(a).