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Ball v Morgan

Ball v Morgan

Case [2001] FMCA 127 21 December 2001

Civil Litigation & Procedure

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ball v Morgan

Details

AGLC: Ball v Morgan [2001] FMCA 127
Case: [2001] FMCA 127
Decision Date: 21 December 2001

CaseChat Overview and Summary

Ball applied for an extension of time to make an application against Morgan and others under the Disability Discrimination Act 1992. The application was made pursuant to s 46PO of the Human Rights and Equal Opportunity Commission Act 1986. The application was heard by the Federal Court, and the primary judge found that the applicant had failed to establish a sufficient case for an extension of time.

The central issue for determination was whether the applicant could be granted an extension of time to make the application, and if so, what the appropriate period for the extension should be. The applicant argued that the extension was necessary because of delays in obtaining medical records and other documents relevant to the application. The respondents argued that the application should be dismissed because the applicant had failed to demonstrate exceptional circumstances.

The primary judge found that the applicant had not established that there were exceptional circumstances warranting an extension of time. The judge noted that the applicant had not provided a satisfactory explanation for the delay in obtaining the relevant documents, and that the application was not made within a reasonable time after the applicant became aware of the need for the documents. The judge also noted that the applicant had not demonstrated that the delay had caused any prejudice to the respondents. The application was therefore dismissed, and no order was made as to costs.

Orders

Orders of the court

(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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

Ball v Morgan [2001] FMCA 127

Most Recent Citation

Fetherston v Peninsula Health (No. 2) [2004] FCA 594

Cases Citing This Decision

Meshram v Bing Lee Electrics Pty Ltd (No 2) [2023] FedCFamC2G 784
Citation 1 (Para 31)

…at contention was said in Fetherson (at [6] per Heerey J) to have been: firmly rejected within the Federal Magistrates Court itself. In Ball v Morgan [2001] FMCA 127 McInnis FM said at [83]: The suggestion that human rights matters are normally to be considered as ‘no costs’ matters is therefore in my opinion misc…
Bunning v Centacare [2015] FCCA 280
Citation 2 (Para 4)

…Spencer v Commonwealth (2010) 241 CLR 118; · General Steel Industries v Commissioner for Railways (1964) 112 CLR 125; · Ball v Morgan & Anor [2001] FMCA 127; · Fetherston v Peninsula Health (No.2) [2004] FMCA 594 · Genovese v BGC Construction Pty Ltd ( No.2 ) [2007] FMCA 601; · Cann v Commonwealth Bank of Australi…
David Yohan on behalf of the Class Members of Providing Awareness with Education and Sport Incorporated (Pawes) v Basketball Queensland Inc [2012] FMCA 1024
Citation 3 (Para 14)

…he Racial Discrimination Act 1975 is a “ no costs jurisdiction” has been firmly rejected in a number of decisions commencing with Ball v Morgan [2001] FMCA 127. Although Ball v Morgan concerned a claim under the Disability Discrimination Act 1992, the approach contained within it was applied to a claim under the R…
Flew v Mirvac Parking Pty Ltd [2006] FMCA 1818
Citation 4 (Para 16)

…and that it has been established that human rights matters are not normally to be considered “no costs” matters in this Court (see Ball v Morgan [2001] FMCA 127 at [83] per McInnis FM). It was pointed out that costs orders had repeatedly been made against unsuccessful applicants in such matters in this Court. Ref…
Wiggins v Department of Defence - Navy (No.3) [2006] FMCA 970
Citation 5 (Para 1)

…dent referred the court to what I regard as some relevant authorities in determining the question of costs. This court in the matter of Ball v Morgan [2001] FMCA 127 stated at [93] the following: “ … The suggestion that human rights matters are normally to be considered as “no costs matters” is therefore in my vie…
Hollingdale v North Coast Area Health Service (No.2) [2006] FMCA 585
Citation 6 (Para 1)

…th), s.79 and rule 21.02(2) of the Federal Magistrates Court Rules 2001 (Cth); Howe v Qantas Airways Limited (No 2) [2004] FMCA 934 [2] Ball v Morgan [2001] FMCA 127 and Gluyas v Commonwealth of Australia (No 2) [2004] FMCA 359 [3] National Mutual Life Association of Australia Ltd v Windsor (1991) 28 FCR 214 at 22…
Frith v The Exchange Hotel and Anor (No.2) [2005] FMCA 1284
Citation 7 (Para 4)

…applicant is successful that cost would normally follow the event: Tate v Raffin [2000] FCA 1150; Creek v Cairns Post [2001] FCA 1150; Ball v Morgan [2001] FMCA 127. It is further submitted that in cases where the applicant is successful, this court has been particularly astute to give effect to the principle tha…
Piper v Choice Property Group Pty Ltd [2005] FMCA 87
Citation 8 (Para 11)

…hould mention in passing that that issue no longer appears to be an issue in this court, following the decision of this court in Ball v Morgan & Anor [2001] FMCA 127 applied by the Federal Court of Australia in Matherson v Peninsula Health (No2) 2004 FCA 594 (11 May 2004) Heerey J.…
Gluyas v Commonwealth of Australia (No.2) [2004] FMCA 359
Citation 9 (Para 1)

…o costs and discourage unmeritorious claims". 6. That view has been firmly rejected within the Federal Magistrates Court itself. In Ball v Morgan [2001] FMCA 127 McInnis FM said at [83]: "The suggestion that human rights matters are normally to be considered as ‘no costs’ matters is therefore in my opinion misconc…
Fetherston v Peninsula Health (No. 2) [2004] FCA 594
Citation 10 (Para 6)

…That view has been firmly rejected within the Federal Magistrates Court itself. In Ball v Morgan [2001] FMCA 127 McInnis FM said at [83]: “The suggestion that human rights matters are normally to be considered as ‘no costs’ matters is therefore in my opinion misconceived and cannot be regarded as an appropriate le…
Pitt v Onesteel Reinforcing [2003] FMCA 609
Citation 11

…Ball v Morgan & Anor [2001] FMCA 127) Corporate Affairs Commission v Solomon Court of Appeal , 1 November 1989 (unreported, Mahoney AP) Herron v McGregor (1986) 6 NSWLR 246 MacKellar & Anor v Container Terminal Management Services Limited & Ors (1999) 165 ALR 409 Re Morton: ex parte Mitchell Products Pty Ltd [1996…
Firew v Busways Trust [2003] FMCA 193
Citation 12 (Para 6)

…uld not apply the normal principles which apply to other applications; that is, that costs would normally follow the event. (see Ball v Morgan & Anor [2001] FMCA 127). However, the court has a very broad discretion as to whether to make an order for costs and, if so, has a further discretion under the rules and ge…
O and O [2001] FMCAfam 127
Citation 13

…O & O [2001] FMCA 127…
Batzialas v Tony Davies Motors Pty Ltd [2002] FMCA 243
Citation 14 (Para 16)

…The issue of costs in human rights claims was the subject of a decision which was delivered by me in the matter of Ball v Morgan & Anor [2001] FMCA 127. In that case at paragraph 83 I considered the issue of costs and considered certain other authorities to which I was then referred. At paragraph 87 of that judgme…

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Cases Cited

Phillips v Australian Girls' Choir Pty Ltd & Anor [2001] FMCA 109
Citation 1 (Para 4)

…therwise 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 sufficien…
Tadawan v State of South Australia [2001] FMCA 25
Citation 2 (Para 3)

…ssue 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…
Xiros v Fortis Life Assurance Limited [2001] FMCA 15
Citation 3 (Para 1)

…arrant 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).…
Ryan v Presbytery of Wide Bay Sunshine Coast [2001] FMCA 12
Citation 4 (Para 1)

…er 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 citiz…
IW v City of Perth [1997] HCA 30
Citation 5 (Para 17)

…lished 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 re…
Fitzgerald v F J Leonhardt Pty Ltd [1997] HCA 17
Citation 6 (Para 2)

…o 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…
Gala v Preston [1991] HCA 18
Citation 7 (Para 3)

…mposing 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.…
Smith v Jenkins [1970] HCA 2
Citation 8 (Para 12)

…ity 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 othe…
Henwood v Municipal Tramways Trust (SA) [1938] HCA 35
Citation 9 (Para 3)

…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 ge…
Nelson v Nelson [1995] HCA 25
Citation 10

…an 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 Pre…
Hardy v Motor Insurers Bureau (1964) 2 KB 745
Citation 11 (Para 1)

…rms 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 –…
Jones v Randall (1774) 1 Cowp 37
Citation 12 (Para 9)

…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…

Legislation Cited

Disability Discrimination Act 1992 (Cth) 10, 23(1)(a), 23(1)(e), 23(1)(f), 24, 5
7 mentions (from Para 1)
Planning and Environment Act 1987 (Vic) 114
2 mentions (from Para 1)
Prostitution Control Act 1994 (Vic) 15
2 mentions (from Para 1)
Federal Magistrates Court Act 1999 (Cth)
1 mention (from Para 10)
Human Rights and Equal Opportunity Act 1986 (Cth) 46PO(2)
1 mention
Human Rights and Equal Opportunity Commission Act 1986 (Cth)
1 mention (from Para 3)