Ball v Morgan - [2001] FMCA 127

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BALL v MORGAN & ANOR [2001] FMCA 127

DISABILITY DISCRIMINATION – Unlawful discrimination – removal and/or refusal to allow to return to “swingers” party – whether illegal brothel – whether public policy and/or illegality prevents reliance upon rights under Disability Discrimination Act – words uttered in anger referring to `wheelchair’ – no discrimination where not found to be reason for refusal to allow to return to premises – aggressive, unpleasant disabled person to be treated in same manner as a person with that demeanour who is not disabled.

COSTS – Costs to follow event in human rights applications – normal costs principles apply – discretion – no costs where respondents conduct of illegal activity subject of the claim and/or where intemperate remarks a part of unlawful discrimination claim.

Phillips v Australian Girls Choir and anor [2001] FMCA 109
Hardy v Motor Insurers Bureau (1964) 2QB 745
Colin John Fitzgerald v F J Leonhardt Pty Ltd (1997) 189 CLR 215
Nelson v Nelson (1995) 184 CLR 538
Henwood v Municipal Tramways Trust (SA) (1930) 60 CLR 438
Gala v Preston (1990-1) 172 CLR 243
Jones v Randall (1774) 1 Cowp 37
Ryan v Presbytery of White Bay Sunshine Coast [2001] FMCA 12
Theodore Xiros v Fortis Life Assurance Ltd [2001] FMCA 15
Tadawan v State of South Australia [2001] FMCA 25
IW v City of Perth (1997) 191 CLR 1

Disability Discrimination Act 1992 ss 5, 10, 23(1)(a), 23(1)(e), 23(1)(f), 24,
Human Rights and Equal Opportunity Act 1986 s 46PO(2)
Prostitution Control Act 1994 (Vic) s 15
Planning and Environment Act 1987 (Vic) s 114

Applicant:

KATHLEEN FAYE BALL

First Respondent:	TED MORGAN
Second Respondent:	DIANNE MORGAN

File No:

MZ 219 of 2001

Delivered on:

21 December 2001

Delivered at:

Melbourne

Hearing Date:

3 & 4 July 2001

Judgment of:

McInnis FM

REPRESENTATION

Counsel for the Applicant:

Mr K Tringas

Solicitors for the Applicant:

Disability Discrimination Legal Service

Counsel for the Respondent:

Mr P Testart

Solicitors for the Respondent:

Testart Robinson

ORDERS

(1)The applicant be granted an extension of time to 12 February 2001 pursuant to s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 to make an application against the respondents pursuant to the Disability Discrimination Act 1992.
(2)The application be dismissed.
(3)That there be no order as to costs.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE

MZ 219 of 2001

KATHLEEN FAYE BALL

Applicant

And

TED MORGAN

First Respondent

And

DI MORGAN

Second Respondent

REASONS FOR JUDGMENT

Introduction

KATHLEEN FAYE BALL (the applicant) has made a claim pursuant to the Disability Discrimination Act 1992 (the DDA) wherein she claims that she was the subject of unlawful discrimination which occurred in April 2000. The application was filed on 12 February 2001 in the Federal Court of Australia and by consent was transferred to the Federal Magistrates Court on 6 April 2001.
It is not disputed that the applicant has a disability as defined in s 4 of the DDA. She has muscular atrophy though I note that in her affidavit material and other documents filed with the court reference is made to the applicant suffering from “spinal-muscular dystrophy”. In any event there is no issue taken that the applicant has a disability as defined by the DDA.
The applicant had lodged a complaint under the Human Rights and Equal Opportunity Commission Act 1986 (the HREOC Act) alleging breach of the DDA by Mr and Mrs Ted and Di Morgan (the respondents). The claim arose out of what was alleged to be the provision of goods and services whereby the respondents conducted what are described as “swinging house parties” from their home for couples and singles. The respondents used the name “Club Jacaranda”.
It was alleged in the complaint before the Human Rights and Equal Opportunity Commission (the Commission) that on 20 April 2000 the applicant contacted the second respondent and made a booking for a party on 22 April 2000. In her claim the applicant had alleged that the second respondent was reluctant to take the booking after being informed that the applicant used a wheelchair. Before the Commission it was further alleged that the second respondent was not friendly to the applicant or her partner Mr Vanderfeen when they had arrived at the party on 22 April 2000. It was claimed this was because the second respondent did not want a person in a wheelchair at the party. It was further alleged before the Commission by the applicant that the second respondent would not permit the applicant to smoke at the front of the house which was claimed by the applicant to be more accessible than the backyard. The applicant claimed that the second respondent displayed an attitude of discouragement throughout the evening asking the applicant and her partner to keep quiet and to remain in one place for the evening. When leaving the party it was alleged that the applicant after telling the second respondent that she would see her in a couple of weeks was told “No! No! We have given you a go here. We don’t cater for wheelchairs”. It was on that basis that the applicant claimed that the respondents treated her and her partner less favourably at the party than other guests who were not users of wheelchairs and who were not associates of persons who use a wheelchair.
In this application it is only the applicant and not her partner who pursues the claim.

Extension of time

The complaint before the Commission was terminated pursuant to

s 46PH(1)(i) of the HREOC Act. The Notice of Termination is dated 18 December 2000.
Hence it is clear that by filing the application with the Federal Court on 12 February 2001 the applicant is required to seek an extension of time within which to make the application. The application is the subject of the time period set out in s 46PO(2) of the HREOC Act which provides:
“(2) The application must be made within 28 days after the date of issue of the notice under sub-section 46PH(2) or within such further time as the court concerned allows”.
The applicant has relied upon an affidavit in support of an application for extension of time affirmed on 26 April 2001. In that affidavit after reciting the chronology to which I have already referred the applicant states that she did not become aware that the Commission had so determined her complaint until 15 January 2001 because she did not receive the notice of termination. It was after not receiving any communication from the Commission that the applicant contacted the Commission on or about 8 February 2001 and was informed that the complaint had in fact been terminated on 18 December 2000. The applicant assumed that the notice of termination had been lost in the mail. She gave evidence concerning arrangements that she and her partner, who is also her carer, have in relation to checking the mail and affirmed that had she received the termination notice then she would have made application to the court in “the soonest time because I have been made aware previously of the limitation period”. The applicant received a copy of the termination notice on the afternoon of 11 February 2001 and the next morning filed her application in the Federal Court.
When the application was listed for hearing there did not seem to be strong opposition to an extension of time. In the circumstances I am prepared to accept that there is a reasonable explanation and that the principles which otherwise should be applied in relation to an extension of time which I have referred to in the decision of Phillips v Australian Girls Choir and anor [2001] FMCA 109 have been satisfied. I am satisfied that at the very least for the purposes only of an extension of time the applicant has an arguable case sufficient to order that the time for lodging the application be extended to

12 February 2001.

Preliminary issue

During the course of the hearing the court became aware that the Victorian Civil and Administrative Tribunal (VCAT) upon the application of the Monash City Council determined that the premises operated by the respondents as “Club Jacaranda” and the activities engaged in by persons attending the parties held at those premises constituted use of the land as a `brothel’ as defined by the Prostitution Control Act 1994. VCAT made an order on 27 June 2000 in accordance with its finding and specifically made an enforcement order pursuant to s 114 of the Planning and Environment Act 1987 having been satisfied that the use of the land as a brothel contravened a planning scheme of the Monash City Council. Specifically VCAT made the following orders:
“1. The Respondents are ordered to forthwith cease, and not commence or recommence use of the land as a brothel within the meaning of that term in the Monash Planning Scheme and furthermore they are not to use the land or commence its use or recommence its use as a place of assembly within the meaning of that expression in the Monash Planning Scheme unless and until a permit for use of the land as a place of assembly is issued by the Responsible Authority and they are further ordered not to be the owners of land at 18 Mangana Drive, Mulgrave used as a brothel and not be the owners of such land used as a place of assembly in the absence of a permit allowing its use as a place of assembly.
2. The Respondents are ordered to pay the Responsible Authority’s costs of and in relation to this enforcement order application, such costs to be agreed, or failing agreement, to be taxed on Scale C of the County Court scale of costs.”
Whilst it is clear that the orders made by VCAT post dated the incidents which are the subject of the claim of unlawful discrimination by the applicant, it is equally clear on the evidence before me that the activities described by the applicant and respondents together with other witnesses were activities which had been accurately summarised by VCAT. The nature and extent of the activities referred to during the course of evidence before this court did not seem to be significantly different from those activities described in some detail by VCAT in the decision to which I have referred.
For convenience I set out the following extract from the VCAT decision which is substantially in accord with the description of the activities which was given by various witnesses before this court:
“10. People would bring their own drinks and light food refreshments such as sandwiches, sausage rolls, twisties and the like were provided. The value of the supper provided was slight and totally inadequate having regard to the entrance fees being charged. No sensible person would pay $100.00 for a few nibbles if that was all there was in it.
11.In fact the parties, constituted partly by regular customers and partly by new or occasional or once only customers, amounted to gatherings numbering in the order of 20 to 40 persons. Some would participate in the party whilst being naked whilst others wore scanty and revealing clothes. There was no obligation to remove clothing and some might wear ordinary clothing. Furthermore, there were no promises or pressure to participate in sexual intercourse. However, sexual intercourse and other sexual activities were the order of the entertainment for the evening. Condoms were supplied for the purpose. They were offered on a `help yourself’ basis from plates in the bedrooms referred to below. There was a room for changing and hanging up clothes, an outdoor spa where people frequently bathed in the nude and at least two rooms each containing a double bed with a single mattress on the floor. These rooms had their doors removed. This facilitated the desires of both exhibitionists and voyeurs. In fact the uncontradicted evidence of the inquiry agents include accounts of couples and larger groups participating in various forms of sexual intercourse in these rooms, in view of observers inside or outside the rooms concerned. Mr Edwards attended twice in his capacity as inquiry agent. On his account occasions of viewable conventional sexual intercourse was so common as to eventually become boring by repetition as the evening wore on. However, joint sexual activities of larger groups contributed a degree of variety. He gave an account of one episode where a man announced that his wife enjoyed a `gang bang’ and invited others to join them. In this episode the woman had oral sex with one man whilst a series of others had vaginal intercourse with her and whilst her husband sat in the room masturbating.”
Having regard to the description of the activities and that those activities have been found by VCAT to constitute the conduct of an illegal brothel, it seemed to me that it was appropriate at the outset that I should invite counsel for the parties to make submissions to this court regarding the issue of whether rights the applicant may have pursuant to the DDA can be enforced in circumstances where it would appear that matters of public policy and illegality should be addressed as a preliminary issue in this application. Accordingly after the hearing of this application both parties were permitted to file and serve written submissions on that preliminary issue. At the time when the preliminary issue was raised I had in mind the maxim `ex turpi causa non oritur actio’ (an action does not arise from a base cause –eg. an illegal contract is void).

Points of claim

In the Points of Claim the applicant essentially referred to the details of the claim which had been considered by the Commission and otherwise claimed unlawful discrimination had occurred arising out of the following:
(a)Section 23(1)(a) of the DDA by refusing to allow the applicant and her partner the use of the premises that the public or a section of public is entitled or allowed to enter or use subject to a payment.
(b)Section 23(1)(f) of the DDA by requiring the applicant and her partner to cease the use of the facilities of Club Jacaranda.
(c)Section 24 of the DDA by refusing to provide the applicant and her partner with the services and facilities of Club Jacaranda.
It is significant to note that in her claim and when given the opportunity to do so during closing submissions the applicant did not seek to rely upon s 23(1)(e) of the DDA which provides that in relation to access to premises it is unlawful for a person to discriminate against another in the terms or conditions on which the person is prepared to allow the disabled person the use of any such facilities.
It is appropriate to set out the relevant sections as follows:
“23 Access to premises
(1) It is unlawful for a person to discriminate against another person on the ground of the other person’s disability or a disability of any of that other person’s associates:
(a)…
(b)in the terms or conditions on which the first-mentioned person is prepared to allow the other person access to, or use of, any such premises; or
(c)…
(d)…
(e)in the terms or conditions on which the first-mentioned person is prepared to allow the other person the use of any such facilities; or
(f)by requiring the other person to leave such premises or cease to use such facilities.”
Section 24 provides:
“24.Goods, services and facilities
(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 disability or a disability of any of that other person’s associates:
(a)by refusing to provide the other person with those goods or services or make those facilities available to the other person; or
(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.”

Defence

The respondents admitted that the applicant has a disability and further admitted they organised social events known as `swingers parties’ under the name “Club Jacaranda”. They admit that persons attending were asked to pay $30.00 (single men $100.00). It was further admitted by the respondents that on or about 20 April 2000 the applicant had telephoned and admitted that the applicant attended the swingers party on or about 22 April 2000. The respondents join issue on the facts alleged by the applicant though significantly do not challenge that the second respondent at the end of the evening said words to the effect, “We have already given you a go here. We don’t cater for wheelchairs”.
The respondents otherwise by way of defence claim that the parties were not goods and services pursuant to s 24 of the DDA and that the swingers parties were held at the private home of the respondents and therefore could not at any material time have been premises subject to the operation of s 23 of the DDA.

Applicant’s evidence

As indicated there is some agreement about the chronology of events and the activities which were engaged in by persons attending the swingers party at Club Jacaranda. I do not propose setting out in further detail those activities.
The applicant relied upon her affidavit in support of the application and gave evidence.
At the commencement of her evidence the applicant gave as her occupation “activist in human rights and civil rights movement”. She then adopted her affidavit in support of the application. Essentially her evidence referred to a telephone conversation with the second respondent on 20 April 2000 where she made a booking for herself and her partner to attend a party at the respondents premises on

22 April 2000. The applicant said that initially the second respondent appeared friendly but then after the applicant advised of her disability and that she used a wheelchair it is said the second respondent seemed reluctant to take the booking and her voice turned “gloomy”. The applicant claims, and this is not in dispute, that she was asked if she used “a leg bag”. The applicant said this shocked her and she answered “No” before realising the question was unnecessary. She claimed that she was told in that conversation that it would be very quiet over the Easter weekend and hardly anyone would be there.
Upon arriving at the premises on 22 April 2000 the applicant claimed that there were a number of people present. She had taken her own portable ramp to access the house as she did not expect the venue to be wheelchair accessible. The applicant made a number of comments about the disposition of the second respondent when she greeted the applicant at the front door and referred to the overall impression that the second respondent did not appear to be welcoming the applicant. The applicant states there were “no cheerful greetings”.
Other comments were allegedly made by the second respondent throughout the evening starting with suggestions that certain doors might be too narrow and that the applicant would not fit through a particular door. Overall it is said that the respondents displayed an attitude of discouragement towards the applicant and her partner throughout the evening. Included in that discouragement was a suggestion that the applicant should not be allowed to smoke out the front but should smoke at the rear of the premises with other guests. She claimed that she was continually harassed throughout the evening.
There is no doubt however on the evidence that the applicant during the evening had engaged in sexual activity with her partner and at least one other.
At the end of the evening there was a heated exchange of words between the applicant and the second respondent. The applicant’s partner on his evidence and on the evidence of others did not appear to participate in that exchange but remained with the applicant. Ultimately the applicant staged what she describes as a “peaceful sit in” in the lounge room. The police were called and the applicant was escorted to her vehicle.

The argument which occurred is said by the applicant to have arisen at the end of the evening when the applicant approached the second respondent and expressed interest in attending the next party. It is common ground that the second respondent said to the applicant something like, ”No, no we have already given you a go here. We don’t cater for wheelchairs”. The “sit in” followed that exchange and as indicated police were called and the applicant removed from the premises.
It is significant in my view that during the course of her evidence the applicant made it clear that from the time of the first phone call she had strong suspicions about the conduct of the respondents and in particular the second respondent. At one stage during her evidence in chief after describing a request that she be introduced to other guests and shown the premises the applicant said that in general terms she was not treated well. However, she was shown over the premises but then said in her evidence, “I knew by that stage I was being discriminated against and I was waiting for her to trip herself up.” She agreed she became aggressive when being shown around the premises.
Under cross examination the applicant agreed that she was an activist and had in fact published an account of the events, which are the subject of the complaint, on the Internet. She accepted that she had a `confrontationist attitude’ and at one stage when it was put to her that she was “militant” answered “Absolutely please use that term, I like it”. When it was put to her that she went to the premises to make a point she agreed though added that she also went “to have a good time”.
In further cross examination the applicant agreed that her booking had been accepted, that she stayed for three and a half hours, was introduced to guests, was taken through the house, had conversation with other guests, was able to smoke in a smoking area and engaged in sexual activity with her partner and another. She agreed that she had stayed in excess of four hours.
When asked questions concerning the telephone conversation wherein the issue of the “leg bag” arose the applicant said, “I concluded she was a blatant `ableist’ who discriminated or had a hatred of people with disability”. She added that she thought both respondents were `ableists’. It was agreed that she has taken basically a political stance and moreover stated, “Absolutely and I am proud of it”. Throughout the course of the evening the applicant said she adopted an approach where “I was very careful not to be aggressive till they said something I could go on. I was waiting to set up a case against them”. She added, “The fact that I am an activist has no relevance in this case”. Towards the end of her evidence the applicant said, “Right now I am on duty as an activist”.
The applicant denied that on the evening she had been unruly or loud other than during sexual activity. She denied that on that particular evening she had an unpleasant odour or had otherwise behaved in an offensive or aggressive manner.
The applicant’s partner Mr Vanderfeen gave evidence and essentially adopted the affidavit of the applicant. During the course of cross examination however he expressed reservations about the conduct of the applicant towards the end of the evening and said, “I didn’t want it to be done the way she was doing it”. He agreed he did not raise any objection throughout the whole of the evening to the way in which either he or his partner the applicant had been treated. He did not suggest that there was any harassment but rather that the second respondent appeared “just cold” towards him and the applicant.

Respondents’ evidence

As indicated the respondents though to some extent seeking to challenge the findings of VCAT and the description of the activities referred to in that decision did not resile from the suggestion that the premises were used in the manner described. The suggestion was made in this court and it seems before VCAT that there was no profit to be made from the activity. The respondents ceased conducting parties under the name “Club Jacaranda” at their premises. Both respondents did not appear to accept the VCAT ruling that the premises were used as an illegal brothel.
The second respondent admitted saying the words to which I have already referred namely “We have already given you a go here. We don’t cater for wheelchairs”. However those words were uttered according to the second respondent at the end of the evening she had “snapped”. Throughout the evening the second respondent claimed that the applicant had caused tension at the party by using foul language and behaving in an aggressive manner. There was a confrontation with the applicant as to whether the applicant would be permitted to smoke and confirmed she did not want the applicant smoking at the front of the premises given that the applicant was then dressed only in a fish net body stocking. She said that she explained that to the applicant and the applicant then became very angry at the suggestion that she smoke in a designated smoking area rather than the front yard as requested. No one else at the party was smoking in the front yard. It was said by the second respondent that throughout the evening the applicant spoke in a loud voice and complained of unfair treatment to other guests. She had acted in a sexually aggressive manner with many other guests according to the second respondent. In general terms without referring to all the details set out in the affidavit evidence of the second respondent, the applicant appeared to become increasingly angry and frustrated, loud, abusive and the offensive behaviour escalated throughout the evening. In addition the second respondent claims that a number of guests said they found the applicant’s state of hygiene to be offensive and that she had bad body odour. According to the second respondent she gradually became upset and embarrassed about the applicant’s conduct and demeanour. At one point during the evening the second respondent agreed that she asked the applicant to keep her voice down in circumstances where she had been screaming loudly and using explicit language.
The second respondent concluded after discussing the matter with the first respondent that the applicant was not an appropriate person to allow at the parties by reason of her behaviour, demeanour and body odour all of which had offended other guests. It was in that context at the end of the evening that the second respondent uttered the words to which I have already referred but did so at a stage where the applicant had become extremely abusive. When she threatened to call police according to the second respondent the applicant said words to the effect, “Go ahead and call the police” and when the police arrived the applicant yelled at them repeatedly to “Arrest me, arrest me.” This was not contested by the applicant. According to the second respondent the applicant’s partner was upset at this stage and the applicant was removed from the premises by the police and assisted to her vehicle.
Prior to being removed, according to the second respondent, the applicant had not simply staged a “peaceful sit in” but instead had behaved in an aggressive manner towards both respondents. The applicant said she would take legal action unless she was given a written assurance she could come back to the premises.
The evidence of the second respondent was largely corroborated by evidence from the first respondent together with other witnesses called including Mr and Mrs De Kaste. They adopted a statement prepared shortly after the events and in general terms confirmed the loud, aggressive and disruptive behaviour of the applicant and that on the night in question stated that others had moved out of rooms where the applicant had been because of the body odour smell and bad language. It is not necessary in this judgment to recite again all the details in those statements save and except to indicate that the evidence largely corroborated what has been said by the respondents. In addition the respondents called a Mr Bushby who gave evidence that he had been asked to leave a room on the evening so that others could use that room and mentioned that fact to the applicant in response to her complaint that she was asked to leave the room because she was disabled. He confirmed that there had been reluctance on the part of the second respondent to allow the applicant to return to the premises but that this was due to bad language and personal hygiene.
The second respondent denied strongly that she discriminated against disabled people. She gave evidence that she was a trained nurse and understood the needs of disabled persons. In addition she said that on a previous occasion a disabled person had attended one of the parties at her premises.

Applicant’s submissions

In relation to the preliminary issue it was submitted for the applicant that the VCAT finding that the respondents were using land as a brothel without a permit contrary to the planning scheme and the orders made accordingly occurred after the discrimination complained of took place at Club Jacaranda namely 22 April 2000. The applicant submitted therefore that the VCAT ruling should not operate retrospectively so as to effect the applicant’s rights as they subsisted at the time.
Whilst it was conceded that the applicant could be charged under s 15 of the Prostitution Control Act 1994, it was submitted that the applicant was not in fact charged and was unaware that she was doing anything illegal by taking part in the Club Jacaranda party. Although I was not referred specifically to any evidence which would support that submission I am prepared to deal with it as a discrete submission and accept the fact, in the absence of evidence to the contrary, is that the applicant was not charged though I am not sure that she would have been unaware that what she was doing was illegal.
Nevertheless the applicant submitted that if the court were to find that the applicant had been participating in an unlawful act then reliance was placed upon the authority of Henwood v Municipal Tramways Trust (SA) (1930) 60 CLR 438 for the proposition that there is no general principle which denies to a person who is engaged in an unlawful act the protection of the general law imposing upon others duties and care for her safety. This authority it is submitted was recently approved by the High Court in Gala v Preston (1990-1) 172 CLR 243.
It was noted that the Henwood case related to an action in negligence but submitted that that decision is of equal relevance where an applicant seeks to rely upon the fact that she has been discriminated against under human rights legislation. It was submitted there should be no difference between the claim by the applicant if she had fallen through a faulty floorboard at the party for example or whether she had received unfavourable treatment because of the fact that she was wheelchair bound. The fact that she was attending an illegal gathering would in both cases be irrelevant to her cause of action. Specific reference was made to the judgment of Lotham J at p 446 of Henwood’s case where His Honour states:
“In the first place, there is no general principle of English law that a person who is engaged in some unlawful act is disabled from complaining of injury done to him by other persons, either deliberately or accidentally. He does not become caput lupinum. Other people still owe him a duty to take care, the extent of that duty being determined by the circumstances of the case which create the duty.”
It was submitted on behalf of the applicant that in the circumstance of the present case she is entitled to complain of discrimination under the DDA despite the fact that the discrimination may have occurred in the course of her attendance at an illegal gathering.
It was further submitted that the principle in Henwood’s case is subject to the qualification that a statutory provision which creates an offence may evince an intention to disentitle a person who sustains injury in committing the offence from recovery in a civil action. This qualification has no relevance to the present proceedings. It was submitted that not only was the applicant never charged under s 15 of the Prostitution Control Act but even if she had been then s 15 does not manifest such an intention (see Gala v Preston (1990-1) 172 CLR 243 at 248).
In relation to the substantive claim if I were to find that the applicant can rely on the DDA then as indicated earlier in this judgment reliance was placed upon ss 23 and 24 of the DDA. In closing submissions counsel for the applicant referred me to s 4 of the DDA and in particular the definition of service which he submitted includes in paragraph (b), “Services relating to entertainment, recreation or refreshment”. It was submitted that the activities of Club Jacaranda could constitute recreation or entertainment. It was further submitted that the respondents had been guilty of disability discrimination pursuant to s 5 of the DDA in that the applicant was treated less favourably than in the circumstances in this case the respondents treat or would treat a person without a disability. This was based on the suggestion that the applicant had received a “cold welcome” when she arrived, that the second respondent was reluctant to show the applicant around the house and discouraged the applicant from entering rooms. It was further suggested the applicant was reluctantly allowed to participate in sexual activity on one of the beds and had been told to quieten down and eventually leave the room. Further reliance was placed upon the telephone conversation where the applicant was asked whether she had “a leg bag”.
The applicant relied upon ss 23(1)(a), 23(1)(f) and 24(1)(a) and 24(1)(b) of the DDA. It was agreed that given that the respondents no longer conduct the Club Jacaranda that the most important remedy sought was a declaration that the respondents have committed unlawful discrimination. It seemed to be conceded that although there had been some alleged adverse reaction to the events by the applicant that the assessment of damages for that reaction would be difficult.

Respondents’ submissions

On the preliminary issue it was submitted on behalf of the respondents that I should note the activities described by VCAT in its Reasons for Decision to which I have already referred. As I understand it the respondents counsel does not submit that I should rely upon that decision and/or follow the conclusion of VCAT but rather simply as a matter of convenience take note of the description which is in similar terms to the gist of the evidence before this court. It was submitted on behalf of the respondent that I should consider what was said by Diplock LJ in Hardy v Motor Insurers Bureau (1964) 2QB 745 at 767 where the court stated in addressing the issue of public policy the following:
“The rule of law on which the major premise is based – ex turpi causa non oritur actio – is concerned not specifically with the lawfulness of contracts but generally with the enforcement of rights by the courts, whether or not such rights arise under contract. All that the rule means is the courts will not enforce a right which would otherwise be enforceable if the right arose out of an act committed by the person asserting the right (or by someone who is regarded in law as his successor) which is regarded by the court as sufficiently anti-social to justify the courts refusing to enforce that right.”
The respondents submitted that in the present case the court should not enforce any right that the applicant may have pursuant to the DDA in the circumstance of the present case. I was further referred to the judgment of Kirby J in Colin John Fitzgerald v F J Leonhardt Pty Ltd (1997) 189 CLR 215 where His Honour referred to the comments of McHugh J in the decision of Nelson v Nelson (1995) 184 CLR 538 as follows:
“Consideration such as these lead McHugh J in Nelson & Nelson to explore the ways in which a broad judicial discretion to withhold relief, the grant of which would affront `the public conscience’ could be given greater certainty of content. His Honour suggested that such a sanction would have to be proportionate to the seriousness of the illegality involved and not disproportionate to the seriousness of the breach.”
The respondents in referring to the authorities which I have just mentioned submit that the court in relying upon public policy considerations in the present case would not by dismissing the applicant’s claim act disproportionately to any alleged breach of the DDA. In making that submission the respondents do not purport to rely upon their own conduct as a defence to the applicant’s claim but simply accept and have deposed to the fact that they respect and acknowledge that the form of sexual activity engaged in may not be accepted by the community at large. In particular I was taken to the affidavit of the second respondent at paragraph 5 where she states,
“We fully appreciate that this is not a lifestyle that appeals to or is approved by everybody and that if a large number if not the majority of people in the community could be offended by if not outright hostile to the notion of swinging.”
As I understand it reliance was placed upon the VCAT order simply to support the submission that the applicant should not be permitted to rely upon the DDA in circumstances where she engaged in unlawful conduct by being on premises in contravention of s 15 of the Prostitution Control Act 1994 (Vic). That section provides as follows:
“15. Being in, entering or leaving unlicensed brothel
A person must not be found, without reasonable excuse, in or entering or leaving a brothel in respect of which there is not in force any licence required under Part 3.
Penalty: For a first offence – 10 penalty units or imprisonment for 1 month;
For a second offence – 30 penalty units or imprisonment for 3 months;
For a subsequent offence – 60 penalty units or imprisonment for 6 months.”
It was further submitted by the respondents that the court should consider public policy both with respect to the issue of `public conscience’ by a court legitimising the notion of `swingers parties’ as an acceptable form of entertainment/business as well as the policy issue of itself being manipulated for political purposes. The evidence was clear according to the respondents’ submissions that the applicant has sought to use the court and the DDA to benefit a class of persons as opposed to seeking redress for herself individually.
In relation to the substantive claim, it was submitted by the respondents that there has been no unlawful discrimination. It was submitted that the applicant was a militant activist who had conducted herself in a manner where her behaviour had attracted the attention of the respondents. It was submitted that the aggressive and unpleasant behaviour of the applicant including bad language and the fact that she, according to the evidence, suffered from bad body odour did not seem to be matters which had been the subject of any significant cross examination of the witnesses called for and on behalf of the respondents. The applicant’s conduct was apparent early in the evening.
It was submitted that any unlawful conduct as defined by s 5 of the DDA requires some connection between the less favourable treatment and the disability itself. If there was any less favourable treatment it was due not to the disability but rather the behaviour of the applicant. Detailed reference was made to the evidence to which I have already referred and it was noted that the applicant had remained at the premises for a number of hours and it was not until the end of the evening that the altercation occurred and the words uttered which are common ground and clearly indicate some reference to the applicant’s disability in that the second respondent told the applicant that they did not cater for wheelchairs. The suggestion that Club Jacaranda was capable of constituting goods and services for the purpose of s 24 was challenged and so too was any suggestion that breach of s 23 of the DDA occurred.

Reasoning

In my view it is clearly relevant when considering the enforcement of rights by this court pursuant to human rights legislation that the court should consider in the public interest the conduct of the parties which is the subject of the right sought to be enforced.
It would be contrary to the public interest for the courts to simply enforce a right arising out of human rights legislation if indeed that right were not to be enforceable as a contract due to illegality. In the present case the applicant would have great difficulty in my view seeking to claim a breach of contract if the subject matter of that contract was the provision of an illegal service, that is a service provided by an illegal brothel.
In the Prostitution Control Act “brothel” is defined as meaning “any premises made available for the purpose of prostitution by a person carrying on the business of providing prostitution services at the businesses premises”. “Prostitution” means “the provision by one person to or for another person (whether or not of a different sex) of sexual services in return for payment or rewards”. A “prostitution service provider” is defined to mean “a person carrying on a business of a kind referred to in the definition section of “brothel” and “escort agency”. The Prostitution Control Act provides a comprehensive definition of “sexual services” and clearly covers the range of activities conducted at Club Jacaranda. On a proper analysis of the material before me it is clear that service was provided by the respondents which involved the provision of sexual services of a kind which would conform to the meaning of the terms which I have just described and constitute an illegal brothel. It should be noted that there was no evidence from the applicant or indeed any witness to suggest that any person attending the premises and paying money on the evening did not participate in sexual activity. Whilst theoretically there may not be a guarantee or expectations that such sexual services would be provided at the gathering, there was simply no evidence before me that such services were not provided to persons attending Club Jacaranda on the evening in question.
I find on the material before me that the premises conducted by the respondents were premises which could properly be described as an illegal brothel and therefore attendance by persons at those premises would constitute a breach of s 15 of the Prostitution Control Act. I am further satisfied however that even if it could be said at the time when the applicant attended the premises she was not aware of illegality and/or her conduct was not unlawful, it is my view that the activities conducted at the premises are sufficiently anti-social to justify the court refusing to enforce rights arising out of human rights legislation.
Human rights legislation is designed to specifically protect in the case of the DDA persons with a disability and to ensure in accordance with the objects of the Act that as far as possible discrimination against persons on the ground of disability should be eliminated. As indicated on the evidence before me I have no hesitation in concluding that the premises and activities conducted by Club Jacaranda could properly be construed as an illegal brothel. Though not bound by the reasons of VCAT I am satisfied based on my own independent assessment of the evidence and legislation that VCAT reached a correct decision when it likewise found that the business conducted by the respondents could properly be found to be an illegal brothel.
The preliminary issue therefore which I need to consider is whether the provision of a service characterised as an illegal brothel is a service of a kind which would attract the attention of human rights legislation and in particular whether the provisions relied upon in the DDA can be applied for the benefit of the applicant in the present case even if I were to assume that discrimination has occurred.
I accept that in determining whether the grant of relief would affront the public conscience is a matter where refusal to grant such relief should be assessed in terms of it being a sanction which would have to be proportionate to the seriousness of the illegality involved. I am satisfied that on the material before me that the participation in the activities at Club Jacaranda as described by the witnesses is consistent with the extract from the VCAT reasons to which I have referred would affront the public conscience and the refusal to grant relief under the appropriate legislation is not a disproportionate outcome having regard to the nature of the activity involved. It is noted that even the second respondent acknowledged that a large number of the people in the community could be offended by and if not outright hostile to the notion of swinging. It is my view that where the state law provides for the legalisation of brothels and persons conduct themselves in a manner which that Act provides is illegal in the absence of a licence, then the community will be affronted if persons seeking the provision of a service of that kind could invoke the full force of human rights legislation alleging that discrimination occurred.
I do not accept that it is analogous as submitted by the applicant to a situation where the respondents had committed a negligent act or otherwise failed to take care of the applicant which may despite any illegality or unlawfulness still give rise to the claim in negligence. This is a claim by the applicant where she pursues amongst other things a declaration and until the commencement of the proceedings an order permitting her to continue to attend the premises where the illegal activity had been conducted.
In my view the contract in the present case may also be regarded as a contract which, to use the language of Lord Mansfield many years ago, could be regarded as `contra bonos mores’ (against good morals). (see Jones v Randall (1774) 1 Cowp 37). It is accepted however that in more modern times this view needs to be adjusted to reflect changes in community attitudes. However, whilst there may be changes in sexual mores and accordingly a change in public policy, it is not easy for the courts to determine the extent of that change. In my view if the applicant had sued in contract claiming a failure to deliver a service held to be a service provided by the operators of an illegal brothel then a defence would be raised that the contract is for an illegal purpose and the applicant could not sue for damages arising out of that contract. Where there is legalised prostitution it may well be that a prostitute could sue for fees when operating out of a legal brothel whilst a prostitute operating out of an illegal brothel could not sue for fees. This is for the simple reason that one contract is now legal and therefore rights arising out of the contract enforceable whilst another contract is based on illegal activity. In the present case it seems to me that once it is found that Club Jacaranda is operating as an illegal brothel it would be inappropriate to allow the applicant to claim a declaration and damages for alleged discrimination on the one hand even though the applicant would not be able to pursue damages in a claim for contract.
It is difficult in circumstances of this kind to determine the extent to which the court should refuse to allow a claim to be pursued but in all the circumstances I am satisfied that to do so would be to allow the applicant to pursue a claim arising out of the provision of an illegal service and/or would allow a claim to be pursued in relation to an activity that I am satisfied would affront public conscience and even in this modern age would be regarded as against good morals.
I accept that there is no general principle of law which denies a person engaged in an unlawful act the protection of the general law which imposes other duties of care for safety (see Henwood v Municipal Tramways Trust (SA) (1938) 60 CLR 438). However a duty arising out of a contract to carry passengers as in Henwood’s case even where the passenger has breached a by law when leaning out over a guardrail on the side of a tram due to the fact that he was taken suddenly ill is quite different to the circumstance of the present case where the applicant has consciously participated in what I have found to be an illegal activity and/or an activity which could affront the public conscience. It does not matter in my view that the Prostitution Control Act does not prohibit the recovery of damages in a civil action. The affront to public conscience by findings in relation to the activities available at Club Jacaranda does not simply depend upon a breach of s15 of the Prostitution Control Act but rather depends on the more general affront to the public conscience regardless of whether any offence has been committed or reliance on the illegality in general terms of the activities then available. In the present case there can be no doubt that it is the provision of the illegal service which is the subject of the claim for unlawful discrimination.
Counsel for the applicant referred me to page 248 of the High Court Decision in Gala v Preston where the court referred to the Henwood decision and noted that the principle in that case where the court stated there was no real denying to a person who was doing an unlawful thing the protection of the general law imposing upon others duties of care for his safety is subject to “The qualification that a statutory provision which creates an offence may have evinced an intention to disentitle a person who sustains injury in committing the offence from recovery in a civil action”. That had no application in the court’s decision in Gala but it is noteworthy that Dawson J in the same case at page 278 refers to the issue of civil liability and to some extent the comments made in my view are relevant to the present application. Dawson J referred to the decision of Windeyer J in Smith v Jenkins (1970) 1119 CLR at p 422 where the court said,
“If two or more persons participate in the commission of a crime, each takes the risk of the negligence of the other or others in the actual performance of the criminal act. That formulation can be regarded as founded on the negation of duty, or on some extension of the rule volenti non fit inguria, or simply on the refusal of the courts to aid wrongdoers. How it be analysed and explained matters not.”
After quoting the above passage Dawson J goes on to say,
“Similarly, it is the notion which lies behind the explanation that the law will not set a standard of care to be observed between accomplices in the performance of their criminal venture. It is not because it is impossible to do so but because it is repugnant to the law to do so.”
In the present case it is my view that there is a strong public policy reason which would preclude this court from granting relief to the applicant pursuant to human rights legislation in circumstances where to do so would be to establish a standard of care and duty owed by the respondents to the applicant in the course of the provision of what I have found to be a service which constitutes an illegal brothel.
I should add that the decision not to invoke the provision of the human rights legislation in this instance does not in any way challenge the rights of the applicant to assert in other circumstances what she may regard as her right to express no doubt strongly held views on the freedom of sexual expression of disabled persons. This decision does not attempt to restrict that right but rather is intended to focus on the very specific issue of the provision of an illegal service and whether the remedies under the DDA should be available to the applicant.
In the event that I am in error in refusing to allow the applicant to rely upon the DDA on grounds of public policy and/or having regard to the illegality of the service provided by the respondents, it is appropriate in my view to consider further the merits of the substantive claim.
Section 5 of the DDA provides a definition of what is meant by disability discrimination to which I have been referred. I should add for the sake of completeness that it is useful to consider s 10 which also makes provision that where an act is done for two or more reasons and one of those reasons is the disability of a person then for the purpose of the DDA the Act is taken to be done for that reason. It is helpful to consider what is the accepted test for causation to be established under s 5 of the DDA and to also have in mind for the present case s 10 of the DDA to which I have referred. In the case of IW v City of Perth (1997) 191 CLR 1 Kirby J said at p 62:
“The object of the Act is to exclude the unlawful and discriminatory reasons from the relevant conduct. This is because such reasons can infect that conduct with prejudice and irrelevant and irrational considerations which the Act is designed to prevent. Because persons faced with allegations of discrimination, genuinely or otherwise, assert multiple and complex reasons, and because affirmative proof of an unlawful reason is often difficult, the Act has simplified the task for the decision-maker. It is enough that it be shown that the doing of the Act was by reason of or on the ground of the particular matter in the sense that the unlawful consideration was included in the alleged discriminators reasons or grounds. It must be a real reason or ground. It is not enough to show that it was a trivial or insubstantial one. But once it is shown that the unlawful consideration truly played a causative part in the decision of the alleged discriminator that is sufficient to attract a remedy under the Act.”
On the material before me it is clear that the applicant had been permitted to make a booking at Club Jacaranda and when she attended on the night she was allowed entry, shown the premises, participated in the activities which were then available and indeed stayed for a period of approximately four and a half hours. It was only at the end of the evening that it could be suggested that there was a specific event which occurred which may constitute a breach of s 23 of the DDA. Specifically, I am satisfied that if in fact the applicant was required to leave the premises in circumstances where that could be regarded as unlawful discrimination, that is asked to leave as a consequence of her disability, then it is conceivable that a breach of the section has occurred.
However, in my view the request to leave the premises was based not on the applicant’s disability but rather on the evidence of the respondents, as corroborated by their witnesses, of the applicant’s aggressive and unpleasant behaviour on that particular night. I do not need to make a finding as to whether or not the applicant on the evening as asserted by certain witnesses had an unpleasant body odour. It is sufficient in my view that the respondents had formed the view that the applicant should leave and not return to the premises due to her demeanour. The requests for the applicant to leave occurred after an altercation in circumstances where there is ample evidence which I accept to suggest that she had behaved in an aggressive and offensive manner throughout the evening. Whilst I accept that words were uttered which referred to the respondents not catering for wheelchairs, I accept the evidence from the second respondent that these words were uttered out of desperation and that it was not intended to prohibit the applicant from returning to the premises by reason of her disability but rather to say anything to ensure that she would not return as the view had been formed on the night that the applicant was an unpleasant and aggressive person. I note further that the applicant had been admitted to the premises that night and indeed the respondent on a previous occasion had admitted another disabled person to one of the parties conducted at the premises.
There is ample evidence from both the respondents and their witnesses to enable me to draw the conclusion that their assessment of the applicant was valid on the night in question. Whether the assessment is fair or unfair matters little as the provider of any service is able to make an assessment of potential customers and decline to provide a service to those customers who are regarded as unpleasant or unwelcome. In the present case I am satisfied that conveying to the applicant that she was unwelcome was not based in any way upon the disability but rather upon the perception by the respondents that on the night the applicant was an unpleasant person who had behaved throughout the evening in an aggressive and offensive manner.
I am further strengthened by this conclusion having regard to the applicant’s own evidence where she clearly had formed a view that the respondents were persons capable of discrimination and as the applicant herself said in evidence she had waited for the second respondent to `trip herself up’ and was very careful not to be too aggressive until they said something “I could go on”. I further accept that she was “waiting to set up a case against them”. In a sense therefore the comment regarding the inability to cater for wheelchairs played into the hands of the applicant who used that comment to then stage a `sit in’ and achieve what clearly was a political end for an acknowledged activist.
It is clear in my view that there is nothing wrong with a person pursuing publicity for a cause which that person believes is just and which may or may not form part of an overall political view and it does not matter whether that view is one which prevails in the community. However the pursuit of a political objective by an activist who as in the present case is experienced in pursuit of what she regards as human rights or civil rights issues whilst not being the subject of criticism should also not automatically entitle an applicant to rely upon legislation where the facts clearly demonstrate that the claim is based on contrived circumstances which I find were largely of the applicant’s own making.
It is also appropriate to note that in the present case any request to leave the premises occurred at the end of the evening after which the applicant had already been in attendance at the premises for a number of hours and whether reluctantly or otherwise had been permitted the use of all the facilities then made available to persons without a disability.
It must be remembered that when considering s 5 of the DDA that that section provides a definition for disability discrimination but one must first look to the activities prohibited in Part 2 of the DDA and determine whether a breach of that part of that Act has occurred before then seeking the assistance of the definition in s 5. There can be no doubt in the present case that there has been no refusal of access to the applicant and even if the applicant had relied upon

s 23(1)(e) and had sought to assert though disavowed by her counsel, that the respondents had imposed upon her terms and conditions regarding the use of the facilities which would not have been imposed on persons who had a disability, I am satisfied that the evidence would not support such a claim.
I am equally satisfied that in the present case there has been no breach of s 24 of the DDA. The respondents provided the applicant with the services or facilities then available to others and it was only at the end of the evening when the applicant was asked to leave that those services were no longer made available to her. It should also be added that this occurred at the end of the evening when presumably the services were no longer available to other persons still remaining at the premises. That had nothing to do with the disability of the applicant as I have found but rather related to her conduct during the evening.
Persons seeking to invoke the protection of human rights legislation including the DDA cannot do so where the facts which provide the basis upon which discrimination is alleged do no more than suggest that the person has been treated differently due to behaviour and/or personality. That different treatment cannot in all cases be regarded as treatment based upon a disability. In the present case I am satisfied that the different treatment received by the applicant from the respondents had nothing to do with the applicant’s disability and was related to her conduct and behaviour on the night in question.

Aggressive and unpleasant persons with a disability should expect to be just as unwelcome as persons without a disability who behave in the same manner.
Accordingly it is appropriate that the application be dismissed.

Costs

In considering the issue of costs submissions were made for and on behalf of the applicant that if I were to dismiss the application then there should be no order in relation to costs. I was referred to a decision in the Federal Magistrates Court in the matter of Ryan v Presbytery of White Bay Sunshine Coast [2001] FMCA 12 at paragraph 20 where the court stated, “Whilst I have a power to award costs the nature and intent of anti discrimination could be thwarted if citizens were unreasonably inhibited from prosecuting bona fide, even utlimately unsuccessful claims”. It was further submitted that the present case contains a significant public interest element which may warrant a departure from the general principles that a successful party is entitled to their costs (see Theodore Xiros v Fortis Life Assurance Ltd [2001] FMCA 15).
It was further stated that the application could not be said to be unmeritorious such that the court could be persuaded to award costs against her if she is unsuccessful in order to discourage her and others from making such claims.
In considering the issue of costs against an unsuccessful applicant I was referred to the decision of the Federal Magistrates Court in Tadawan v State of South Australia [2001] FMCA 25 where the court said,
“61. The question of costs in human rights and equal opportunity matters has been discussed in the Federal Magistrates Court on a number of occasions (Lowe v Australian Tax Office [2000] FMC 6; Christine McKenzie v Department of Urban Services [2001] FMC 20; Theodore Xiros v Fortis Life Assurance Ltd [2001] FMC 15).
62. The court has accepted that these matters were normally considered to be `no costs’ matters as evidenced by the practice of state tribunals and the fact that there was no power in HREOC to award costs. The court has recognised that where proceedings are brought a successful party should not have the benefit of his or her victory lost in costs. The court is also anxious not to discourage litigants from bringing claims which may well have merit because of the fear of the adverse costs order in the event that the applicant is unsuccessful. On the other hand the court can use its powers in relation to costs to discourage unmeritorious claims”.
On the issue of costs the respondent has submitted that an order should be made in favour of the respondents if the application is dismissed. It was conceded the court always has a discretion but that in the present case costs should follow the event. I should have regard to the applicant pursuing her claim particularly her self confessed motivation to use the court process to advance her perceptions of the interests of other disabled persons. In the circumstances it is submitted that it would be unfair if the respondents were obliged to meet their own costs in the circumstances.
In my view the general principle in relation to costs is that the costs should follow the event. I see no reason for departing from that general principle in human rights applications though I acknowledge the cases to which I have been referred by the applicant’s counsel provide at least some examples of circumstances where a court has been prepared to exercise its discretion in favour of unsuccessful applicants by not awarding costs.
The present case however cannot be said to be one which the community would regard as pursuing a public interest issue. That would be contrary to the finding I have made about the activity which is the subject of the service provided by Club Jacaranda being unlawful and/or one which would affront the public conscience. Further the circumstances in the present case are such that the applicant has clearly set out to ensure that at the end of the evening the respondents made a comment which the applicant could seize upon in order to provide a ground for an application concerning discrimination and presumably give her an opportunity in a public forum to pursue what she perceives to be an important issue in the interests of disabled persons.
This case however raises a further factor that may be relevant in the exercise of my discretion namely whether the nature of the activities conducted at Club Jacaranda which constitute the circumstances giving rise to the complaint are relevant in determining whether any costs order should be made. In addition it is uncontradicted in the evidence of the second respondent that she certainly said to the applicant words to the effect, “No, No we have already given you a go here. We don’t cater for wheelchairs.” That statement as I have found clearly provided the applicant with an opportunity to pursue a claim. I am satisfied on the material before me she was determined to pursue that claim even before she entered the premises having formed as she indicated on her evidence following a telephone conversation with the second respondent the view that the second respondent was a person who would discriminate against disabled persons. It is relevant however that the respondents conducted what I have found at the very least to be an activity which would affront the public conscience. That fact combined with the admitted reference to `wheelchair’ when refusing the applicant permission to return to the premises justifies exercising my discretion to make no order as to costs.
In my view in the absence of any amendment to legislation which would seek to interfere with the ordinary discretion exercised by a court in the award of costs it should be stated that in the normal course of events costs follow the event. I can see no legislative or legal basis which would support the proposition that there is any need in human rights matters to alter the law applicable to this court by adopting the practice of the state tribunal or indeed to have regard to the fact that the Commission does not have power to award costs. Unfortunately I therefore find that I am unable to agree with the conclusion in relation to costs set out by the Learned Federal Magistrates in the Tadawan Decision and the Ryan Decision.
It is not appropriate for courts to exercise a discretion in relation to costs on the basis that it may or may not discourage applicants from making claims. That is a matter for Parliament to decide and if necessary legislation can be amended which, subject to any Constitutional challenge, may direct the court in relation to the issue of an award of costs in human rights applications. In the absence of that legislation as indicated I do not believe there is any need to depart from the normal principles which apply.
It should be remembered that s 79 of the Federal Magistrates Court Act 1999 provides as follows:
“79 (1)This section does not apply to family law or child support proceedings.
(2)The Federal Magistrates Court or a Federal Magistrate has jurisdiction to award costs in all proceedings before the Federal Magistrates Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs must not be awarded.
(3)Except as provided by the Rules of Court or any other Act the award of costs is in the discretion of the Federal Magistrates Court or Federal Magistrate”.
It is clear from the section that the legislature contemplated that there may be occasions when other Acts or indeed the Rules of the court provide that costs must not be awarded. An exception has clearly been made in relation to family law and child support proceedings and it is significant in my view that there is no exception or exclusion made in relation to litigation brought pursuant to human rights legislation. The absence of the power of the commission to award costs cannot be used as a basis upon which it should be suggested that in the case of unsuccessful applicants that absence of the power to award costs by the commission should somehow fetter and/or restrict the power to award costs by a court. Had Parliament wished to restrict the court’s power to award costs then it clearly could have done so with an appropriate provision. The suggestion that human rights matters are normally to be considered as “no costs matters” is therefore in my view misconceived and cannot be regarded as an appropriate legal principle to be applied in human rights applications.
However as indicated in the exercise of my discretion in the normal manner I have concluded in the present case for the reasons stated that it is not appropriate to make an order for costs. I should add that I have done so notwithstanding my view that the application lacked merit, that the applicant continued with the claim even though she was aware that the respondents no longer conducted the business and where accordingly a number of remedies sought by the applicant including orders that she be provided full access to the services provided by the respondents and advised of venues of future events could never be the subject of an order. I am satisfied for the reasons given that it is appropriate that I not make any order for costs.
Accordingly the orders I make are as follows:
(1)The applicant be granted an extension of time to 12 February 2001 pursuant to s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 to make an application against the respondents pursuant to the Disability Discrimination Act 1992.
(2)The application be dismissed.
(3)That there be no order as to costs.

I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 21 December 2001