Drury v Andreco-Hurll Refractory Services Pty Ltd - [2004] FMCA 398

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DRURY v ANDRECO-HURLL REFRACTORY SERVICES PTY LTD

[2004] FMCA 398

HUMAN RIGHTS – Disability discrimination – summary dismissal of application – no reasonable cause of action disclosed – whether there are any further issues not previously the subject of a complaint to HREOC that might be the subject of a further complaint considered.

COSTS – Whether a costs order should be made at the interlocutory stage of discrimination proceedings considered.

Disability Discrimination Act 1992 (Cth), ss.15, 17
Federal Magistrates Court Rules 2001 (Cth)
Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.46PO
Workplace Relations Act 1996 (Cth)

Barnes v Northern Land Council & Ors [2002] FMCA 54
Charles v Fuji Xerox Australia Pty Limited [2000] FCA 1531
Chung v University of Sydney [2001] FMCA 94
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Firew v Busways Trust (No 2) [2003] FMCA 317
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Low v Australian Taxation Office [2000] FMCA 6
MacKellar & Anor v Container Terminal Management Services Limited & Ors (1999) 165 ALR 409
Vintila v Federal Attorney-General [2001] FMCA 110
Webster v Lampard (1993) 177 CLR 598

Applicant:

RAYMOND DRURY

Respondent:

ANDRECO-HURLL REFRACTORY SERVICES PTY LTD

File No:

SZ2554 of 2003

Delivered on:

1 March 2004

Delivered at:

Sydney

Hearing date:

1 March 2004

Judgment of:

Driver FM

REPRESENTATION

The applicant appeared in person

Counsel for the Respondent:

Ms C Ronalds

Solicitors for the Respondent:

Cutler Hughes & Harris

INTERLOCUTORY ORDERS

The application is dismissed on the basis that no reasonable cause of action is disclosed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the proceedings to this point, fixed in the sum of $2,847.50.
The Court certifies that it was reasonable to employ counsel for the purposes of these proceedings, pursuant to rule 21.15 of the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ2554 of 2003

RAYMOND DRURY

Applicant

And

ANDRECO-HURLL REFRACTORY SERVICES PTY LTD

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me a motion for the summary dismissal of an application brought under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”) claiming relief for discrimination in breach of the Disability Discrimination Act 1992 (Cth) (“the DDA”). The motion by the respondent seeks the dismissal of the application on the basis that no reasonable course of action is disclosed. The respondent proceeds upon the motion, written submissions filed on 25 February 2004, augmented by oral submissions today by Ms Ronalds, and the affidavit of David Evans filed on 22 January 2004.
I also received two documents from the applicant, Mr Drury, being an injury management plan progress report (exhibit A1) and an employee separation certificate (exhibit A2) as well as the notice of termination of his complaint to the Human Rights and Equal Opportunity Commission with the annexed documents relating to that complaint, which I…

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.

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Details

Case: [2004] FMCA 398
Decision Date: 1 March 2004

CaseChat Overview and Summary

The case of Drury v Andreco-Hurll Refractory Services Pty Ltd involved the applicant, Raymond Drury, bringing a claim under the Human Rights and Equal Opportunity Commission Act 1986 against the respondent, Andreco-Hurll Refractory Services Pty Ltd, for alleged disability discrimination. The Federal Magistrates Court of Australia was tasked with deciding whether the application could be summarily dismissed on the grounds that no reasonable cause of action was disclosed, and if so, whether a costs order should be made at the interlocutory stage.

The legal issues before the Court were twofold: first, whether the applicant's application disclosed any reasonable cause of action, and second, whether the Court should make an order for costs at the interlocutory stage. The Court considered the principles for summary dismissal, including whether the application was so obviously untenable that it could not possibly succeed, and the factors relevant to making a costs order in discrimination proceedings.

In dismissing the application, the Court found that Mr Drury's claims were essentially an attempt to relitigate matters already decided by the Australian Industrial Relations Commission. The Court held that the available facts established that Mr Drury was not dismissed but rather his contract of employment simply expired, and there was no evidence that the employer acted inappropriately prior to the contract's expiration. Additionally, the Court ruled that the applicant's claim of being denied future employment due to disability was not part of his original complaint to the Human Rights and Equal Opportunity Commission and thus could not be heard in these proceedings.

The Court further held that it was appropriate to make a costs order against the applicant given the lack of a reasonable cause of action and the fact that the applicant was warned of the possible costs implications. The Court ordered Mr Drury to pay the respondent's costs and disbursements of and incidental to the proceedings to that point, fixed in the sum of $2,847.50. The Court also certified that it was reasonable to employ counsel for the purposes of these proceedings, pursuant to rule 21.15 of the Federal Magistrates Court Rules 2001.

Orders