Bell v iiNET Ltd[2017] QCAT 114

REASONS FOR DECISION

1. [1]
   This matter concerns a claim by Andrew Bell that he was discriminated against in four separate incidents by iiNet arising out of the cancellation by Mr Bell of the internet service supplied to him by iiNet. In short, the first two incidents related to a statement made by an employee of iiNet that the instruction to cancel the internet service had to occur by telephone, the third in iiNet’s debt department requiring Mr Bell contact them by telephone in relation to an outstanding invoice, and the fourth by iiNet in the fact of and manner of its referral of that debt to a debt recovery agency. 
2. [2]
   Mr Bell made a complaint in relation to these incidents to the Discrimination Commissioner pursuant to s 134 of the Anti-Discrimination Act 1991 (Qld) (the AD Act). In due course the complaint was referred to the Queensland Civil and Administrative Tribunal (the Tribunal) which, under s 174A of the AD Act, is empowered to hear and decide the complaint.

Statutory framework – Anti-Discrimination Act 1991 (Qld)

3. [3]
   The principle that an Act must be read in light of its statutory objects is of particular significance in the case of legislation which protects or enforces human rights. In construing such legislation, it has been held by the High Court^[1] that there is a special responsibility to take account of and give effect to the statutory purpose. Further, it is generally accepted that beneficial and remedial legislation is to be given a “fair, large and liberal” interpretation.^[2]
4. [4]
   One of the purposes of the AD Act is to promote equality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity.^[3] This is achieved by prohibiting discrimination that is on a ground in part 2, of a type in part 3, and in an area of activity in part 4.^[4]
5. [5]
   The grounds on which it is unlawful to discriminate are set out in s 7. Section 7 contains a list of “attributes” on the basis of which discrimination is prohibited. The relevant attribute in this case is “impairment”.^[5]  Impairment is defined to include, relevantly, the partial loss of a person’s bodily functions.^[6]
6. [6]
   Discrimination on the basis of an attribute can be direct or indirect.^[7] In the case of direct discrimination the treatment is on its face less favourable whereas in the case of indirect discrimination the treatment is on its face neutral but has an adverse impact on a person with the attribute when compared to a person without the attribute.^[8]
7. [7]
   It is usual for anti-discrimination legislation in Australia to deal separately with both forms of discrimination. This is the case in Queensland, where s 10 defines direct discrimination and s 11, indirect discrimination.^[9]
8. [8]
   Direct discrimination is defined as follows:

10 Meaning of direct discrimination

Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.

9. [9]
   Section 10 requires comparison between the treatment the discriminator gives, or proposes to give, to the aggrieved person and the treatment that the discriminator would give, or would propose to give, to a person without the aggrieved person’s impairment in “circumstances that are the same or not materially different”. If the comparison shows that the person with the impairment was treated less favourably, the further question must be asked as to whether the impairment was the “basis” for the less favourable treatment.^[10]
10. [10]
    The central question is therefore to ask why the aggrieved person was treated as he or she was? It is not necessary that the discriminator considers that the treatment is less favourable.^[11] Nor is a person’s motive for discriminating relevant.^[12]
11. [11]
    If there is more than one reason for treating a person less favourably than another, the less favourable treatment will be on the basis of the attribute only where the attribute is a substantial reason for the treatment.^[13]
12. [12]
    Indirect discrimination is defined as follows:

11 Meaning of indirect discrimination

1. (1)
   Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose, a term –
   1. (a)
      with which a person with an attribute does not or is not able to comply; and
   2. (b)
      with which a higher proportion of people without the attribute comply or are able to comply, and
   3. (c)
      that is not reasonable.^[14]
2. (2)
   Whether a term is reasonable depends on all the relevant circumstances of the case, including, for example –

1. (a)
   the consequences of failure to comply with the term; and

2. (b)
   the cost of alternative terms; and

3. (c)
   the financial circumstances of the person who imposes, or proposes to impose, the term.

3. (3)
   It is not necessary that the person imposing, or proposing to impose, the term is aware of the indirect discrimination.

4. (4)
   In this section –

term includes condition, requirement or practice, whether or not written.

13. [13]
    It is apparent that pursuant to s 11, for indirect discrimination to have occurred, four elements must be satisfied:

1. the discriminator has required the applicant to comply with a term;
2. the applicant, due to an attribute, does not or is not able to comply with the term;
3. a higher proportion of persons without that attribute comply or are able to comply; and
4. the term was not reasonable. 

14. [14]
    Section 11 has been described as, in effect, a deeming provision, in the sense that if the elements of the section are satisfied, discrimination on the basis of a person’s impairment is taken to have occurred.^[15]
15. [15]
    Sections 10 and 11 do not make unlawful any discriminatory act but merely define what will amount to discrimination. Section 46 makes unlawful (in the circumstances set out in that section) acts amounting to discrimination within the meaning of s 10 and s 11. Sections 10 and 11 therefore need to be read in conjunction with s 46.
16. [16]
    Section 46 prohibits, in certain circumstances, discrimination in the context of the supply of goods and services.  Section 46 provides:

    1. (1)
       A person who supplies goods or services (whether or not for reward or profit) must not discriminate against another person-
       1. by failing to supply the goods or services; or
       2. in the terms on which goods or services are supplied; or
       3. in the way in which goods or services are supplied; or
       4. by treating the other person unfavourably in any way in connection with the supply of goods and services.
17. [17]
    “Services” is defined to include the services “of any profession, trade or business”.^[16] Although there is no specific inclusion of services relating to telecommunications as there is in the Commonwealth Disability Discrimination Act,^[17] the definition in the AD Act is, in my view, broad enough to include the internet services provided by iiNet.
18. [18]
    The activities in question being the cancellation of that service and the recovery of debts, in my view, comes within the meaning of “the terms on which goods or services are supplied”^[18] or, “in any way in connection with the supply of goods or services.”^[19]
19. [19]
    Responsibility for contravening conduct can extend to responsibility for the conduct of a worker or agent. Section 133 provides: 

133 Vicarious liability

1. (1)
   If any of a person's workers or agents contravenes the Act in the course of work or while acting as agent, both the person and the worker or agent, as the case may be, are jointly and severally civilly liable for the contravention, and a proceeding under the Act may be taken against either or both.
2. (2)
   It is a defence to a proceeding for a contravention of the Act arising under subsection (1) if the respondent proves, on the balance of probabilities, that the respondent took reasonable steps to prevent the worker or agent contravening the Act.

The factual background 

20. [20]
    Mr Bell claims discriminatory conduct occurred in the provision of a service by iiNet on four separate occasions. Before considering those incidents, it is helpful to provide some background to the dispute.
21. [21]
    Mr Bell entered into a 24 month contract with iiNet in February 2015 for the provision of internet services to his then current address. That contract was due to expire on 23 January 2017. In August 2015 Mr Bell and his partner, Michelle Pennell, were making arrangements to move to Mt Cotton. They planned to move on 11 September 2015.
22. [22]
    Mr Bell wanted to ask iiNet whether he could relocate the internet service to their new address. Mr Bell instructed Michelle to call iiNet in his presence and, by relaying what she was told, to involve him in the discussion.
23. [23]
    A dispute arose during the course of that conversation. The iiNet representative, Phumeza, told Michelle it would cost $49.90 plus $29.90 per month to relocate the services and that this meant a total of $69.90 a month. Phumeza’s addition was wrong: the correct amount was $79.90. Phumeza realised her mistake and, before any agreement had been entered into, corrected herself. Mr Bell and Michelle said that $80 a month was too much to pay and asked whether, instead, they could cancel the service from the 11^th of September, the date of their move.
24. [24]
    The conversation went as follows:

Andrew: $80 a month?

Michelle: Way too much.

Phumeza: Hello?

Andrew: Yes, can we cancel the internet which is going to be $80 a month.

Phumeza: So you want to cancel your services altogether?

Michelle: Can we cancel the iiNet services from the 11^th?

Phumeza: Yes, it shouldn’t be a problem, please give us a call on the 11^th to cancel the services. So you no longer want to relocate your services to this address?

Michelle: Sorry, it’s way too much money.

Phumeza: Okay then, I just need to write this down in my notes, so September 11, you’ll call through to cancel your services right?

Michelle: Yes.

25. [25]
    Phumeza, then gave them a reference number to quote when they called back to cancel the service on the 11^th. Just as the conversation was coming to a close, Michelle asked whether a cancellation fee would apply. Phumeza checked and told them that a $144 cancellation fee would be payable. That is when matters deteriorated. Mr Bell and Michelle refused to pay the cancellation fee on the basis they had been given the wrong information initially (having been told the monthly fee was $10 cheaper) and that this was “false advertising”. Mr Bell and Michelle then asked to speak to Phumeza’s supervisor who apologised for Phumeza’s mistake but confirmed that the cancellation fee would apply if they decided to cancel the service.
26. [26]
    Mr Bell and Michelle then asked to speak to the manager. The manager also confirmed the cancellation fee would apply but that they could take the matter to the “solutions team” at iiNet if they were not happy with this outcome. Mr Bell and Michelle told the manager they would be taking the matter to the Telecommunications Industry Ombudsman.
27. [27]
    On 19 August 2015 Mr Bell sent an email to iiNet outlining his concerns about the cost of relocating the service and the phone call. The same day Mr Bell and Michelle were contacted by telephone by a Customer Service Manager at iiNet who offered to waive the first month’s phone line rental at their new address. Mr Bell said he was not happy with this solution and wanted any escalation of the dispute to take place via email.
28. [28]
    The matter was then assigned at iiNet to Anthony O'Halloran from the solutions team.  Anthony called Mr Bell on 21 August and left a voice to text message. Anthony also sent a SMS asking Mr Bell to call to discuss the matter.
29. [29]
    Mr Bell attempted to contact Anthony using the National Relay Service on 25 August 2015. The call took 12 minutes and a 9 point ID check was conducted but Mr Bell could not get through to Anthony.  During that call Mr Bell said that email was the best way to contact him but later agreed that if Anthony called back straight away, when his partner was there, that that would be ok. The NRS call was as follows:

Graig (iiNet billing): Okay, so he can, Anthony can contact Andrew on the mobile, because his girlfriend is there. Is that what I can tell Anthony quickly?

Jacqui (NRS): That’s correct, yes.

Graig: Okay, let me just punch that in quickly.

Jacqui: Okay, they just said Anthony has just rung now…

30. [30]
    Anthony then called to try to resolve the dispute concerning the cancellation fee. The conversation began as follows:

Michelle: Hello, Michele speaking.

Anthony: Oh Hello Michelle. It’s Anthony calling from iiNet Solutions, how are you going?

Michelle: Very good thanks, how are you?

Anthony: Not bad, not bad, I was wondering if I could speak with Andrew please.

Michelle: Ah, Andrew is profoundly deaf.

Anthony: Oh.

Michelle: I’m his girlfriend.

Anthony: Okay.

Michelle: Yeah, if I can relay whatever you say –

Anthony: Yeah, absolutely…^[20]

31. [31]
    Anthony explained the cancellation process to Mr Bell who repeatedly insisted that iiNet not charge a cancellation fee to his credit account. Anthony explained to him that a cancellation fee is only generated once a service is cancelled. Anthony outlined the process as follows: once a customer cancels the service any direct debit is automatically cancelled and a final invoice generated. This invoice may or may not include a contract break fee. If it does and the amount is disputed a customer has two weeks to lodge a complaint with the Telecommunications Industry Ombudsman in which case all payments on that customer’s account are suspended while the complaint is investigated. Anthony said:

…if you speak to the TIO before the invoice is due, the system is not going to draw anything until the invoice is due.^[21]

32. [32]
    Mr Bell appeared to accept this. He said:

Okay. So from here, I guess when the internet is disconnected, I can contact the TIO, Australian Standards. So can I ask you what’s your position please?^[22]

33. [33]
    Then, as the conversation was drawing to a close, Mr Bell stated that he wanted any communication from iiNet to be by email. He also said:

…I guess I could proceed and take the case against the discrimination commission.^[23]

34. [34]
    Anthony responded by saying:

Discrimination Commission? So I’m not following you here.

35. [35]
    Michelle responded by saying that Mr Bell had been discriminated against because he had told iiNet to contact him by email and yet Anthony had contacted him by phone. To this Anthony replied:

…you have to understand though, that we have to abide by the privacy law. We can’t take action on his account from emails. We need to do an ID check every time we change something on his account. It is the law. We can’t – we’re not above the law and he isn’t either. So we’ve got no option here. If it’s just a general enquiry, we can do that by email, but if it’s about cancelling accounts, charges, money owing, that is all private information and we need to do the ID check, we can’t do that by our email.  

36. [36]
    The following conversation then occurred:

Michelle: But how do you do if I wasn’t around. Will you just tell a deaf person you still have to call up anyway?

Anthony: No. We would probably recommend then getting someone on the phone. Like, they have services where people can actually get someone on the phone and speak on their behalf.

37. [37]
    Later, after Michelle complained about the time it takes to communicate using the relay service, Anthony suggested emailing the service and having it act on Mr Bell’s behalf over the telephone.
38. [38]
    Mr Bell lodged a complaint with the Anti-Discrimination Commission Queensland on 30 August 2015.
39. [39]
    A further telephone call took place on 31 August 2015. Michelle, on loudspeaker with Mr Bell, called iiNet to again ask if they could relocate their service. Mr Bell gave permission at the start of the call for his girlfriend to conduct the call. They were told it may cost them $299 to have a new phone line installed.
40. [40]
    On 15 September 2015 Anthony emailed Mr Bell outlining his options which were to relocate the service at a higher monthly cost or to cancel the cancel with a contract break fee payable.  As an application for relocation had not been received, the email stated that no changes to Mr Bell’s current service would occur, that it would remain active and all applicable costs continue to be incurred. The email concluded with a statement that if Mr Bell had any further enquiries that Anthony could be contacted by email or phone.
41. [41]
    On 23 October 2015 Mr Bell emailed to cancel his account. iiNet offered to waive the cancellation fee in an effort to resolve the discrimination complaint but this was rejected by Mr Bell.
42. [42]
    iiNet subsequently issued Mr Bell with a final invoice which comprised monthly service fees for September and October 2015 and a contract break fee of $144.
43. [43]
    Mr Bell did not pay the invoice. The debt department at iiNet made automated calls to Mr Bell between 15 and 20 November 2015 regarding the unpaid invoice and asking that he contact them by telephone. These calls were repeated by way of text message.
44. [44]
    The debt was referred to an external debt collection agency in February 2016. Correspondence from the collection agency to Mr Bell provided contact telephone numbers, a street address and a fax number but no email address. 
45. [45]
    Mr Bell resolved his debt dispute with iiNet by paying one month’s service fee and the cancellation fee.^[24]

The Claim   

46. [46]
    Mr Bell alleges that the facts surrounding the cancellation of his internet service have led to four incidents of discrimination by iiNet. They are:

    1. the statement made by Anthony during the telephone call of 25 August 2015 that the service had to be cancelled by telephone;
    2. the final invoice issued by iiNet which included a month’s fee for October which amounted to a refusal by iiNet to acknowledge the service had been cancelled from 11 September;
    3. the automated calls made by iiNet’s debt department in relation to the outstanding invoice;
    4. the referral of the disputed debt to a debt collection agency which required contact by telephone.

Consideration

47. [47]
    The issue is whether Mr Bell has been discriminated against by iiNet in a way prohibited by the AD Act. This requires iiNet to have discriminated against Mr Bell on the basis of his hearing impairment, either directly or indirectly, in connection with the supply of goods or services.^[25] Generally, Mr Bell carries the onus of proof^[26] and the standard is the civil standard as informed by the Briginshaw standard^[27] to reflect the seriousness of the allegations.^[28]
48. [48]
    Mr Bell had a significant hearing loss at birth.^[29] Mr Bell has had hearing aids since birth and had a cochlear implant inserted on 19 December 2014 which was activated in January 2015. Mr Bell agreed with the proposition put by counsel for the respondent that the cochlear implant had given him “significantly improved hearing”.^[30] Dr Andrew Parker stated in April 2016 that Mr Bell had, at best, a mild hearing loss.^[31] It was not disputed that Mr Bell’s hearing loss constitutes an “impairment” for the purposes of the AD Act.^[32]
49. [49]
    Mr Bell gave evidence that his level of hearing at the time of the first incident permitted him to make telephone calls provided they required a “yes” or “no” response from the other party.^[33]
50. [50]
    The cancellation of the internet service and the procedures in respect of outstanding invoices are, for the reasons above, in connection with the supply of goods or services.

The first incident

51. [51]
    Anthony O'Halloran, an employee in the Solutions department at iiNet, attempted to contact Mr Bell by telephone on 21 August and left a voicemail message which appeared by text on Mr Bell’s mobile. On 25 August Mr Bell attempted to call him back with the assistance of the National Relay Service. Mr Bell asked the representative from iiNet who answered that call to get Anthony to call him back within the next half hour when his partner would be there to assist him with the call.
52. [52]
    Anthony made a second call which was answered by Michelle. During that call Anthony said that Mr Bell would need to call back when he had vacated the house and no longer required the internet, to cancel the service. Michelle told Anthony that Mr Bell was deaf and that Mr Bell would need to email instead. Anthony replied saying, in effect, that cancellation had to occur via telephone so that a 9 point ID check could be done to satisfy privacy requirements. In fact, that was not correct and iiNet’s policy was, at the relevant time, that cancellation of a service could be done by telephone or email. 
53. [53]
    A 9 point ID check conducted over the telephone could have been satisfied either by, for example, calling from a recognised number (3 points) plus providing a password (8 points) or if the customer did not have a password, by providing the customer’s name, billing address and date of birth.^[34]
54. [54]
    In this case, following the ID check, Mr Bell would have needed to say that he wished to cancel his account.

Was the first incident unlawful discrimination?

55. [55]
    Anthony’s statement was not direct discrimination. The requirement to cancel by telephone was, albeit mistakenly, thought by Anthony to apply globally to all customers. Anthony gave evidence at the hearing that he thought it was iiNet policy, that he had applied that process for 18 months and handled all enquiries exactly the same way.^[35] There was no suggestion, and indeed no evidence, that Anthony was treated less favourably than persons without his impairment would have been in circumstances that are the same or not materially different. The issue is whether it is a case of indirect discrimination.
56. [56]
    In order to constitute indirect discrimination the following elements need to be satisfied:

    1. a term was imposed;
    2. the person with the attribute does not or is not able to comply with it;
    3. a higher proportion of people without the attribute comply or are able to comply with it; and
    4. the term is not reasonable.^[36]

Was a term imposed and how, precisely, is it defined

57. [57]
    “Term” is defined in s 11(4) to include a condition, requirement or practice, whether or not written. It has been held that the expression “requirement or condition” in s 6 of the Disability Discrimination Act (Cth) should be construed broadly and beneficially, although the term should be formulated with some precision.^[37] The term must be something more than is inherent in the goods or services offered.^[38]
58. [58]
    Michelle Pennell gave evidence at the hearing that she was not sure, following the conversation with Anthony, whether she had to call back to cancel the service or whether Mr Bell could do it by email.^[39] Mr Bell understood that Anthony was requiring him to call back to cancel.
59. [59]
    I find, on the basis of the transcript of the conversation between Mr Bell, Michelle and Anthony, that Anthony told Mr Bell that the ID check had to be done by telephone and that the ID was necessary before cancellation could occur.
60. [60]
    Anthony by that statement imposed a “term” and he had done so in the course of his employment.
61. [61]
    I find accordingly there was a term imposed that an instruction to cancel the internet service had to be communicated by telephone. I do not find, on the basis of the evidence, that the term extended to require that negotiation of any cancellation fee occur by telephone.^[40] The instruction to cancel would have led to the issue of a final invoice which may or not have included a cancellation fee. It was then that the fee could have been disputed.^[41]

Does not or is not able to comply

62. [62]
    The time to consider whether a term is one with which the applicant “does not or is not able to comply” is the time at which the term has to be fulfilled.^[42] Here that time is 11 September 2015.
63. [63]
    The meaning of the words “does not…comply” in s 11(1)(a) is not easy to define. At their narrowest, the words might be confined to an inherent or immutable characteristic, for example, height or weight, or age. However, the objects of the AD Act are broad and the authorities show that provisions such as these should be read consonantly with the broad and remedial purpose of the Act. As Sackville J in Australian Medical Council v Wilson^[43] said:

It was submitted that the phrase “does not comply” refers to some immutable characteristic of the individual that prevents him or her ever complying with the relevant condition. I must confess that I find it difficult to see why the words in s 9(1A)(b) should be given a restrictive gloss. As a matter of ordinary English, the words “cannot comply”, which also appear in s 9(1A)(b), are apt to apply to a case of inherent inability to comply with a condition.

More particularly, a restrictive construction runs counter to the fundamental objective s 9(1A) seeks to achieve. The point of provisions attacking indirect discrimination is to prevent individuals from the effect of apparently neutral conditions or requirements, which in fact operate in a manner that discriminates against particular groups the members of which have characteristics in common (such as race or national origin). A particular individual within a group subjected to discriminatory practices often will have some chance of complying with the offending condition or requirement. The chances of compliance may depend on how the condition is administered, or on whether the individual is able to overcome the practical obstacles placed in his or her path by the invidious condition or requirement.

…

I do not think it necessary in the present case to attempt a definition of the phrase “cannot comply”, as employed in s 9(1A)(b), beyond indicating that it is apt to include at least a case of inherent inability to comply with a condition or requirement.^[44]

64. [64]
    However, and also consonant with the purposes of the Act, where a person does not comply with a term the non-compliance cannot, in my opinion, be a matter of whim. It must, in my opinion, and in a practical and common sense way relate to and be the consequence of the attribute.
65. [65]
    This interpretation is also consistent with s 11(1)(b) which requires that a higher proportion of people without the attribute either comply or are able to comply. It would be difficult to apply the comparison if it depended on a mere matter of choice amongst the members of the pool.
66. [66]
    The complainant bears the onus of proving that he “does not ….comply” with the term within the meaning of s 11(1)(a).^[45] The evidence demonstrates that the applicant is capable both of hearing and conducting conversation on the telephone in relation to matters of a straightforward nature. He is also able to speak clearly and in a way that is easily understood. I consider that the details required by way of identification are of a straightforward nature and that he had managed similar conversations before. That alone, in my opinion, demonstrates that the applicant has not discharged the onus.
67. [67]
    However, and in addition, I am also prepared to find that a substantial motivation for the applicant’s non-compliance was his ongoing contractual dispute with iiNet and the elevation of the dispute, by then, into one in which he had threatened to make a complaint to the Discrimination Commissioner. 
68. [68]
    The next issue is whether Mr Bell was “able to comply” with the term. The issue of whether a person can comply with a term is a question of fact. Although statutory language used to describe an inability to comply with a term varies, there does not appear to be any difference of substance. The House of Lords in Mandla v Dowell Lee^[46] held that a person’s inability to comply with a particular requirement or condition is to be judged practically rather than literally. This interpretation of “could not comply” has been applied in Australia.^[47]
69. [69]
    Here, the nature of the term is such that it is a relatively straightforward question as to whether the applicant could or could not comply. The question is not whether Mr Bell could conduct telephone calls, it is whether Mr Bell could have conducted the call to cancel his internet service. Such a term does not, for example, raise issues of the relevance of the degree of compliance as was the case in Hurst v Education Queensland^[48] in relation to whether a hearing impaired person could comply with a term that she “accept an education and receive instruction in English without the assistance of an Auslan teacher or an Auslan interpreter”. This is not a situation where Mr Bell could comply but would be at a serious disadvantage in doing so.^[49]
70. [70]
    Prior to its amendment, s 6 of the Disability Discrimination Act 1992 (Cth) was in similar terms to s 11 of the AD Act. In relation to the Commonwealth provision, as it then was, it was held that compliance must not be at the cost of being put in any substantial or serious disadvantage in relation to the comparable base group.^[50] The nature of the term is such that there was no serious or substantial disadvantage to Mr Bell in complying with it.
71. [71]
    Having considered all of the material I find that Mr Bell could comply with the term for the following reasons. The “term” was that he call back the day he wished the service to cease. I find, taking into account the nature of the communications already conducted by Mr Bell on the telephone, that he was, with or without the help of Ms Pennell or the National Relay Service, capable of completing such a call.
72. [72]
    It is important, in the context of the complaint, to focus on the practical content of the term imposed. A term which requires a complicated call to be completed with a person with a hearing impairment is a matter different from a term requiring a call of a more simple nature. The “cancellation call” would have consisted of Mr Bell answering preliminary questions to identify that he was the account holder followed by a statement that he wanted to cancel his internet service. The call would not have been complicated. The procedure for cancelling the service and disputing any cancellation fee if imposed, as explained to Mr Bell in a telephone conversation with iiNet,^[51] would not have required a discussion concerning the fee at that stage. It was simply a call to activate the cancellation.
73. [73]
    The evidence of the respondent is that the telephone call would only have required a yes/no response from iiNet, requiring no more than the following:

I refer to my previous discussions with Anthony O'Halloran. I require my service to be cancelled today. Can you please confirm that it will be cancelled?^[52]

74. [74]
    Mr Bell had initiated contact with iiNet by telephone. He had managed to conduct a telephone conversation by calling to enquire as to when the technician was arriving.^[53] I had the benefit of listening to the conversation and I am satisfied he was able to provide a reference number for the call, understand questions, answer them appropriately and make his own points. I also had the benefit of hearing Mr Bell give evidence. During his evidence Mr Bell had the assistance of a tele captioner who would type the questions for him to read. Mr Bell spoke his answers to the questions in a clear and articulate way and was easily understood.  
75. [75]
    I also note that in a telephone conversation of 19 August 2015 made by Michelle and Mr Bell to iiNet, that practically all the elements which would have been required in the cancellation call were effectively performed by Mr Bell. In particular, the ID questions asked consisted of Mr Bell’s billing address and date of birth. That part of the conversation went as follows:

Phumeza: Okay then, okay, because I’ve seen that it’s Andrew Bell’s account, I just need to verify a few details in order for me to be able to go into the account. May I confirm the billing address for this account please?

Michelle: What’s your billing address?

Andrew: No […], […] Street, Capalaba and the post code is 4157.

Phumeza: Thank you very much. May I have the date of birth for Andrew Bell please?

Andrew: It’s the […]^th of the […]th […].

76. [76]
    And later, speaking directly to Phumeza, Mr Bell says:

Yes, can we cancel the internet which is going to be $80 a month?^[54]

77. [77]
    Phumeza replies that “that shouldn’t be a problem” but could they call back on the 11^th, so that the cancellation is effective from then.^[55]
78. [78]
    These conversations and other instances where Mr Bell has been able to respond accurately and directly to the person on the other end of the line establish, in my view, that Mr Bell was able to comply with the term that cancellation had to occur by telephone.
79. [79]
    I note that at the end of the relevant conversation with Anthony that Mr Bell referred to the fact that he wanted communications by email but the request came at the end of the conversation and only when it became apparent he was not going to get his way concerning the commercial arrangement between the parties.
80. [80]
    On all the evidence I do not find that request to be determinative of Mr Bell’s capacity to communicate adequately during any telephone call regarding cancellation.
81. [81]
    Finally, I note Mr Bell’s evidence that he could conduct simple “yes or no” telephone calls with close family and with third parties provided they were aware of his hearing impairment.^[56] For example, Mr Bell admitted that he was able to make telephone calls to his general practitioner’s receptionist which would involve introducing himself and then confirming the date and time of his appointment.^[57] Michelle gave evidence that she had witnessed Mr Bell make short telephone calls on his own but that these were “not very often with his family”.^[58]
82. [82]
    In the circumstances I find that the second element has not been satisfied.

Comparison of base groups

83. [83]
    In respect of the third element, I do not find that a higher proportion of persons without Mr Bell’s impairment could comply with the term. This is because I find that persons with Mr Bell’s level of impairment would have been able to make a call to cancel the relevant internet service.
84. [84]
    The limb in s 11(1)(b) requires a comparison to be made. Identification of the comparator groups in a similarly worded provision^[59] was considered in Catholic Education Office v Clarke.^[60] There, Sackville and Stone JJ said:

Section 6(a) is satisfied if the requirement or condition is one with which a ‘substantially higher proportion of persons without the disability comply or are able to comply’. This language implicitly requires a comparison to be made. Clearly enough, one comparator is a group of persons without the disability. The other comparator is not, however, specifically identified. But as Dawson J observed in Australian Iron & Steel v Banovic, at 187, a ‘proportion must be a proportion of something’. This suggests that the second comparator is a group of persons with the disability. The comparison is not with the aggrieved person, since that person’s ability to comply with the requirement or condition is addressed in s 6(c). In any event, it does not accord with the ordinary use of language to refer to the ‘proportion’ able to comply with a requirement in relation to only one person.

Section 6(a) of the DD Act does not mean that the comparison must be between all persons with the disability and all those without it: Australian Iron & Steel v Banovic, at 178, per Deane and Gaudron JJ. The determination of the appropriate groups must be based on the evidence in the particular case, although the groups chosen must, as a matter of law, be capable of allowing the comparison required by s 6(a) to be made: Australian Iron & Steel v Banovic, at 179, per Deane and Gaudron JJ.^[61]

85. [85]
    A similar comparator test was applied to s 11 of the AD Act in Chivers v State of Queensland:^[62]

The “comparator” test in s 11(1)(b) imposed an onus upon the appellant to demonstrate that the respondent had required her to comply with a term with which a higher proportion of persons without the appellant’s attribute were able to comply than for those with a like attribute. Speaking of the counterpart test in the Disability Discrimination Act 1992 (Cth), Black CJ in Queensland v Forest explained that that test “directs attention at the outset to groups of people: persons with the disability that affects the aggrieved person and persons without that disability”. His Honour noted that those with the disability are conventionally referred to as the “comparator group”, and those in the broader group as the “base group”. Section 11(1)(b) speaks of impairment rather than disability and, here, the relevant impair­ment was the appellant’s severe headaches disorder.

86. [86]
    It can be difficult to define the appropriate “comparator group”. One way is to define the group as all hearing impaired persons. If the group was defined as broadly as this a higher proportion of people without the impairment than with the impairment would be able to comply with the term. However, in my view, the appropriate comparator group in these circumstances is those persons who are hearing impaired to a similar degree to Mr Bell. I find, when applying that comparator group, that the term is not one with which a higher proportion of people without the attribute comply or are able to comply.

Term is not reasonable

87. [87]
    The fourth element is that the term is not reasonable.
88. [88]
    The test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience.^[63] The criterion is an objective one, requiring the Tribunal to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the condition, on the other.
89. [89]
    The Tribunal must consider all the circumstances of the case in assessing reasonableness, including the non-exhaustive factors in s 11(2).^[64] They include:

    1. (a)
       the consequences of failure to comply with the term;
    2. (b)
       the cost of alternative terms; and
    3. (c)
       the financial circumstances of the person who imposes, or proposes to impose, the term.
90. [90]
    In Waters it was held:

“[I]t must be determined by reference to the activity or transaction in which the putative discriminator is engaged. Provided the purpose of the activity or transaction is not to discriminate on impermissible grounds, the reasonableness of a requirement or condition depends on whether it is reasonable to impose the requirement or condition in order to perform the activity or complete the transaction. There are two aspects to this criterion of reasonableness: first, whether the imposition of the condition is appropriate and adapted to the performance of the activity or the completion of the transaction; second, whether the activity could be performed or the transaction completed without imposing a requirement or condition that is discriminatory…or that is as discriminatory as the requirement or condition imposed. These are questions of fact and degree. Effectiveness, efficiency and convenience in performing the activity or completing the transaction and the cost of not imposing the discriminatory requirement or condition or of substituting another requirement or condition are relevant factors in considering what is reasonable.”^[65]

91. [91]
    In Clarke the need to confine the assessment of reasonableness to the circumstances of the case was emphasised. It was held, at first instance:

It is important to bear in mind that the issue is the reasonableness of the requirement or condition attached in the case of Jacob Clarke and of no other person, by the respondents. This is not a test case about the merits of Auslan compared with other means of communication between deaf and hearing people. Neither is it a case about the respondents’ or any other authority's practices generally in relation to all deaf or profoundly deaf or even profoundly deaf and Auslan-dependent pupils. It is, however, relevant that the respondents might well have had to provide in future for a likely small number of pupils with a similar disability to Jacob's.^[66]

92. [92]
    Whether a term is not reasonable is a question of fact.^[67] The respondent must prove, on the balance of probabilities, that the term complained of is reasonable.^[68]
93. [93]
    In this case, in considering whether the imposition of the term was “appropriate and adapted to the performance of the activity” I find that a term to cancel a service by telephone is on its face appropriate. However I also find that the activity, here cancellation of the service, could have been performed in a less discriminatory way by permitting customers to cancel by email.  There was no evidence from the respondent that cancellation by email was more costly or inefficient.
94. [94]
    These arguments would, in any case, have been inconsistent with the fact that iiNet had, at the relevant time, a policy which permitted cancellation to occur by telephone. The term imposed by Anthony was imposed by him due to an erroneous belief that the ID check, which was required to comply with iiNet’s privacy obligations, could only be conducted over the telephone.
95. [95]
    Although the application of the factors outlined in s 11(2) is unnecessary in the face of the actual term imposed by iiNet which permitted email communication, I will, for completeness, consider those factors.
96. [96]
    The consequence of not complying with the term on 11 September was that Mr Bell’s internet service continued and he was charged for a month’s usage that he did not require. There was no evidence as to the cost of permitting cancellation by email but I take note of the fact that most companies permit communication and/or notification by email because it is cost and time efficient. I also note that iiNet is a telecommunications company which is part of a larger group of companies and it is not a situation where the financial circumstances of the person imposing the term supports a finding that the term was reasonable. Further, Anthony gave evidence at the hearing that the main benefit in dealing with customers over the telephone as opposed to email was the time in which matters could be resolved and, ultimately, was a customer service issue. In his view no extra cost was necessarily involved because he would not be “sitting there doing nothing” while waiting for a customer to get back to him.^[69]  
97. [97]
    Finally, although on the basis of Clarke’s case, it is arguable that the imposition of the term was reasonable in the particular circumstances of Mr Bell’s case, I am of the view that a broader view of the element must be taken. If this were not the case, the element would not add much beyond the element relating to the ability to comply.
98. [98]
    Accordingly, I find, for the reasons above, that the term imposed by Anthony and therefore by iiNet was not reasonable. 
99. [99]
    The defence in s 133(2) was not relied upon by the respondent. This was despite the fact that iiNet had a policy in place that permitted cancellation to occur by email and that Anthony had, the year before, signed a typed document created by iiNet which acknowledged that communications with customers could occur by telephone or email and set out how the requisite ID points could be achieved in either case.
100. [100]
     In conclusion, given my finding that Mr Bell was able to comply with the term, I find that incident 1 did not constitute unlawful discrimination by iiNet or by Anthony.
101. [101]
     If I am wrong about that, the issue would arise as to whether s 46 had been contravened and, if so, whether by iiNet, its employee, or both. The answer depends upon the construction of the AD Act and, to the extent they are relevant, upon agency principles.
102. [102]
     “Person” includes a corporation for the purposes of the AD Act.^[70] Corporations can only act through natural persons and the only way a corporate service provider could ever commit an act of discrimination would be through its employees or agents. In my view, s 46 must have been intended to apply directly to the activities of corporate service providers.^[71] In this case, Anthony was acting on behalf of iiNet when he spoke to Mr Bell in his capacity as a member of iiNet’s “solutions team”. On that basis, it was iiNet that imposed the term and iiNet, potentially, that contravened s 46. If iiNet was liable, in my view, it was liable directly and the vicarious liability provision^[72] would have no application.
103. [103]
     This does not necessarily mean that Anthony, as an employee, could not also be directly liable in these circumstances.^[73]

Second incident

104. [104]
     On 23 October 2015 Mr Bell cancelled his contract by email. Mr Bell was charged a cancellation fee and one month’s fee for September 2015. Mr Bell claims this is unfair because he had attempted to inform iiNet in August 2015 that he would not be requiring the service from September.
105. [105]
     The alleged discriminatory conduct is iiNet’s refusal to acknowledge cancellation had occurred over the telephone on 25 August 2015 and then in billing Mr Bell for an extra month on the basis cancellation had not occurred in August.

Was the second incident unlawful discrimination

106. [106]
     In his submissions, Mr Bell articulates that he was discriminated against because a term was imposed that cancellation be affected by a return telephone call.
107. [107]
     This is the same term that is relied upon in respect of the first incident. For the reasons above I find that this term is not one with which the applicant was unable to comply.
108. [108]
     Accordingly, I find that the second incident does not constitute a contravention of the Act.
109. [109]
     In any event, I note that from the evidence it is artificial for Mr Bell to say that his conversation of 25 August should have been effective to cancel the service from 11 September. This is because, as was explained to Mr Bell, the internet service is programmed to cease approximately 20 minutes after the instruction to cancel is given. Mr Bell decided against that option because he did not want to risk his service being interrupted prematurely. Further, Mr Bell and Michelle make a further telephone call after the 25 August to iiNet to enquire again about how much it will cost to relocate the service. During that call, on the 31 August 2015, Michelle and Mr Bell said they had decided to relocate rather than cancel their service. The $79.90 monthly fee was quoted and they said they were happy with that. There was an issue as to whether a new phone line would need to be installed at a cost of $299. Mr Bell and Michelle were unclear about this so Cleo, the iiNet representative, offered to find out and get back to them by phone. Michelle said “ok, thank you”.
110. [110]
     Cleo then phoned back and said that they may need a new phone connection if the tenants took the “in-place” with them. Michelle says that “Okay, we might give you a call when we moved from here in September, we might give you a call early next week if that’s okay.”
111. [111]
     Mr Bell was emailed on 15 September 2015 by Anthony who outlined his options in relation to the service and advised him that until he elected to relocate he would be charged for the service in accordance with the original contract.

Third incident

112. [112]
     Mr Bell disputed the final account from iiNet and did not pay it. Mr Bell was then contacted on multiple occasions in relation to the outstanding account by an automated system used by iiNet’s debt department. The calls played a standard voice recording and could not be responded to.
113. [113]
     The system left computer generated voice mail messages and voice to text messages. The messages said, for example:

Please contact iiNet on 13 22 58 to arrange payment for an overdue balance, to avoid suspension of services. Thanks iiNet.

114. [114]
     Mr Bell argues he was unable to respond to iiNet over the telephone and that no email contact address was provided. Mr Bell alleges that this conduct by iiNet’s debt department in continuing to call him was discriminatory.

Was the third incident unlawful discrimination

115. [115]
     In respect of the third incident it is arguable that no term was imposed. A request to contact by telephone does not preclude other modes of communication. It also does not amount to a requirement or condition.
116. [116]
     If there was a term imposed, I find that the term was to contact the debt department on a telephone number. However, that was the extent of the term. I find that Mr Bell was capable of contacting the respondent on the telephone. Where the matter would have gone from there, had the contact been made, is not the subject of evidence nor the subject of complaint. Negotiations regarding the debt could have occurred by email as is evident by emails already sent between Mr Tony Moffatt of iiNet and Mr Bell relating to the amount payable.^[74]
117. [117]
     I find there was no direct discrimination. I am not prepared on the available evidence to find that Mr Bell was treated any differently than any other customer would have been treated. I am not prepared to find on the evidence that the course complained of was the consequence of the commencement by the applicant of these proceedings.

Fourth incident

118. [118]
     An external collection agency was engaged by iiNet in relation to the outstanding account on or before 2 February 2016. Although correspondence from the collection agency contained a fax number and a postal address the letter stated that if the addressee was unable to pay the account in full that he or she was to contact the office by telephone to “discuss your options to resolve this matter”. 
119. [119]
     Mr Bell argues that iiNet knew or ought to have known that he would need to speak to the collection agency as the amount of the invoice was disputed, that the collection agency normally communicated by telephone and that Mr Bell could not communicate this way.
120. [120]
     This conduct, in referral of the debt in these circumstances, is, Mr Bell alleges, discriminatory.
121. [121]
     Mr Bell also alleges the conduct is discriminatory because, in the usual course, iiNet would not refer a matter to debt recovery while negotiations in relation to the debt were ongoing.

Was the fourth incident unlawful discrimination

122. [122]
     The applicant submits that direct discrimination occurred by:

     1. the fact of the referral; and
     2. the manner of referral, being to an agency which presumed telephonic communication.
123. [123]
     I have assumed that the debt collection procedures of an entity after the provision of a service has ceased constitutes treatment “in connection with the supply of goods or services”.^[75] 
124. [124]
     For there to be direct discrimination the discrimination must be because of an attribute. The proposition therefore is that the fact of and manner of referral to the debt collection agency was because of Mr Bell’s impairment or, alternatively, because he had commenced these proceedings.
125. [125]
     Mr Bell referred his complaint to the ADCQ on 30 August 2015. An email was sent by Mr Bell on 23 October cancelling the service. Between 11 and 20 November 2015 the computer software, Adeptra, was engaged and applied an automatic process designed to remind a customer they have outstanding invoice. On 2 February 2016 the debt was referred to an external debt collection agency who contacted Mr Bell using a standard letter.
126. [126]
     Anthony gave evidence that a debt is automatically referred to a debt collection agency once it reaches a certain “aging point”.^[76] Mr Bell alleged that iiNet had a policy not to pursue a debt if it is disputed. Mr Bell refers to an email and to Anthony’s evidence at the hearing.
127. [127]
     The email on which Mr Bell relies is an email from Mr Tony Moffatt, in house counsel dated 11 November 2015. That email states that the invoice was for the correct amount considering when the cancellation instruction was provided by Mr Bell and that “I understand that we have put a hold on credit management activity pending any outcome of the proceedings.”
128. [128]
     During the hearing Anthony does not say categorically that debt recovery is suspended while a dispute is negotiated. The examination was as follows:

Q: So you wouldn’t refer somebody to debt recovery while you were still negotiating a dispute would you.

A: Normally the debt collection is suspended while an investigation is ongoing, but it was made evident to me straight away that he didn’t wish to proceed with me at the time so no action was taken.^[77]

129. [129]
     It was put to Anthony that negotiations were suspended because Mr Bell sought third party advice:

Q: I take what you’re saying, but you decided not to negotiate within drew (sic) because he sought third party advice. Would that be right?

A: No that’s incorrect. I was having the conversation with Andrew and the conversation was going perfectly fine until the call escalated. At that point I was unable to reason with Andrew.^[78]

130. [130]
     In a telephone conversation between Anthony and Mr Bell, Anthony stated to Mr Bell, in effect, that debt recovery would be suspended where a customer had made a complaint relating to the debt to the Telecommunications Industry Ombudsman.^[79] Although such a course was threatened, no such complaint was made.
131. [131]
     I am not prepared to find on the evidence that the referral to the debt collection agency was because Mr Bell had a hearing impairment. The inference which the applicant asks the Tribunal to draw is one possible inference, but it is not an inference I am prepared to find on the balance of probabilities. The proposition was never squarely put to Mr O'Halloran. There are other more likely inferences available, such as the referral occurred in the ordinary course of business. I would not find in that circumstance, that the conduct was because of the applicant’s hearing impairment. I also do not find that the referral was made because Mr Bell had commenced discrimination proceedings. Anthony refuted any suggestion that negotiations relating to the debt were suspended because Mr Bell had sought third party advice. 
132. [132]
     I also do not find that the referral or manner of referral was any different than it would have been for any other customer who had not paid an outstanding account. Accordingly, it cannot be said that iiNet’s treatment of Mr Bell in the fact of and manner of referral of the dispute was directly discriminatory. 
133. [133]
     In respect of indirect discrimination, the term alleged is that communications with the debt collection agency occur by telephone. There is some doubt, as I mentioned above, as to whether a request to contact by telephone amounts to the “imposition” of a term.  Assuming for present purposes that it does, I do not find that a request to “contact” by telephone is one with which Mr Bell could not comply even if the purpose of the call was to discuss options. Any discussion of options could sensibly have included a discussion of the means by which continuing communications could occur. The mere requirement to contact by telephone was one with which Mr Bell could comply and I am satisfied on the evidence that Mr Bell could, having made such contact, have discussed options for payment and, if necessary, the need to conduct further negotiations by email or correspondence. 

Remedies

134. [134]
     If I am incorrect about any of the above findings in respect of any of the four incidents I do not consider there is a sufficient basis for a finding that loss flowed from any illegal discrimination.
135. [135]
     The applicant sought relief in the form of an apology, internal review of procedures and nominal damages. The applicant referred, as an example of an award of nominal damages, to Kleinig v Village Roadshow Theme Parks Pty Ltd^[80] where the Tribunal ordered $500.00 be paid to the complainant for discrimination suffered by her on the basis of impairment in the context of access to a joy ride.
136. [136]
     In respect of the consequences of the alleged unlawful discrimination, Mr Bell said:

I lost sleep due to the incident with iiNet. I suffer from insomnia, which as a result of the stress and anger I experienced following the incident with iiNet, was exacerbated from 25^th August 2015, until the debt was resolved on 22^nd (sic) February 2016. I continue to experience intermittent loss of sleep as a result of the ongoing litigation of my dispute with iiNet.

The incident caused me stress due to the issues and discriminatory conduct of a big telecommunications company.

I had to take time off work to deal with the issues involving iiNet and it also caused stress on my relationship with Ms Pennell.^[81]

137. [137]
     To award compensation I would need to be satisfied that any loss or damage claimed to have been suffered by Mr Bell was caused by the contravention.^[82]  For the reasons given above I find that Mr Bell did not suffer damage by reason of any contravention.
138. [138]
     I also find, in circumstances where the conduct alleged in incidents 1 and 2 was a result of a mistake by an employee which was “one-off” in nature and not likely to be repeated, there was no basis for making an order that iiNet refrain from particular conduct.
139. [139]
     There was no evidence as to the staff training iiNet conducts. However the employee who made the relevant statement had signed a document less than a year earlier, acknowledging that he understood that customers were able to conduct an ID check by telephone or by email.^[83] I am not inclined in those circumstances to make an order in relation to re-training.
140. [140]
     Finally, the employee who made the mistake has apologised and continues to be sorry to Mr Bell for his mistake. There is no utility in exacting a further apology from him or requiring one from iiNet.

Conclusion

141. [141]
     For the reasons set out in this Decision I order that the application by Mr Bell be dismissed.
142. [142]
     In view of section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) I make no order as to costs.