Flanagan v Murdoch Community Services Inc

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FEDERAL COURT OF AUSTRALIA

Flanagan v Murdoch Community Services Inc [2010] FCA 647

Citation: Flanagan v Murdoch Community Services Inc [2010] FCA 647
Parties: LORRAINE FLANAGAN v MURDOCH COMMUNITY SERVICES INC and NANCY McCOLL BOWEN
File number: VID 778 of 2009
Judge: GORDON J
Date of judgment: 23 June 2010
Catchwords: DISCRIMINATION – direct discrimination – discrimination in employment – whether conditions imposed constituted less than favourable treatment – relevance of amendments to the Disability Discrimination Act 1992 (Cth)
Legislation:

Disability Discrimination Act 1992 (Cth)
Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth)
Disability Services Act 1986 (Cth)
Human Rights and Equal Opportunity Commission Act 1986 (Cth)
Industrial Relations Act 1988 (Cth)
Sex Discrimination Act 1984 (Cth)
Workplace Relations Act 1996 (Cth)

Disability Services Standards (DEWR) 2007 (Cth)
Cases cited:

Allina Pty Limited vFederal Commissioner of Taxation (1991) 28 FCR 203
Carrigan v Darwin City Council [1997] IRCA 101
Downey v Trans Waste Pty Limited (1991) 172 CLR 167
Fetherston v Peninsula Health (2004) 137 FCR 262
Grain Elevators Board (Victoria) v President, Councillors and Ratepayers of the Shire of Dunmunkle (1946) 73 CLR 70
Interlego AG v Croner Trading Pty Limited (1992) 39 FCR 348
Jerzy Slezak v Pilkington (Aust) Operations Ltd [1995] IRCA 638
McNeill v Commonwealth of Australia (1995) EOC ¶92-714
Laz v Downer Group (2000) 108 IR 244
Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92
Tate v Rafin [2000] FCA 1582
Triggs v GAB Robins (UK) Ltd [2007] 3 All ER 590
Van Thu Nguyen v Nissan Casting Australia Pty Ltd [1995] IRCA 657
Ware v OAMPS Insurance Brokers Ltd [2005] FMCA 664
Watkins v Fryer & Anor (1995) EOC ¶92-667
Zhangv University of Tasmania (2009) 174 FCR 366

D C Pearce and R S Geddes, Statutory Interpretation in Australia (6th ed, 2006)

Commonwealth, Disability Discrimination and Other Human Rights Legislation Amendment Bill 2008, Explanatory Memorandum (2008)
Commonwealth, Disability Services Standards (DEWR) 2007, Explanatory Statement (2007)
Commonwealth, Parliamentary Debates, House of Representatives, 3 December 2008, 12292 (Robert McClelland, Attorney-General)
Date of hearing: 9 March 2010
Date of last submissions: 10 March 2010
Place: Melbourne
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 78
Counsel for the Applicant: Mr R Sorenson
Solicitor for the Applicant: AED Legal Centre
Counsel for the Respondents: Mr S Reid
Solicitor for the Respondents: Workplace Legal Pty Ltd

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 778 of 2009
BETWEEN:

LORRAINE FLANAGAN
Applicant
AND:

MURDOCH COMMUNITY SERVICES INC
First Respondent

NANCY McCOLL BOWEN
Second Respondent

JUDGE:

GORDON J

DATE OF ORDER:

23 JUNE 2010

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The application is dismissed.  

2.There be no order as to costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

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Details
Case
[2010] FCA 647
Decision Date

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Ms Flanagan, a woman with an intellectual disability, brought an action against Murdoch Community Services Inc (MCS) and its CEO, Ms McColl Bowen, alleging direct discrimination in employment under the Disability Discrimination Act 1992 (Cth). The crux of the case centred on an incident on 5 May 2008, where Ms McColl Bowen and her companion, Ms Patton, claimed that Ms Flanagan, while driving her car, dangerously approached them on the road, necessitating them to move to avoid collision. Ms Flanagan, however, denied these allegations and maintained that she drove past Ms McColl Bowen and Ms Patton, who had initially been walking in the middle of the road.

The court was tasked with determining whether the conditions imposed by MCS on Ms Flanagan constituted less favourable treatment as defined under the Act, and whether the amendments to the Act were relevant to the case. The primary focus was on whether Ms Flanagan's employment conditions were discriminatory and if the actions taken by MCS and Ms McColl Bowen were discriminatory in nature. The court had to consider the credibility of the conflicting accounts of the 5 May incident and the broader context of the relationship between Ms Flanagan and MCS.

In its decision, the court concluded that while the conduct of the respondents was not discriminatory, it was poorly managed, leading to significant mistrust between the parties. The court found that the actions taken by MCS and Ms McColl Bowen were not ideal but did not amount to discrimination. The court also noted that there was a failure to communicate with Ms Flanagan directly or through the appropriate channels, which further exacerbated the situation. Ultimately, the court held that the application should be dismissed and that there should be no order as to costs given the shared responsibility for the proceedings between the parties.

The final orders of the court were that the application be dismissed and that there be no order as to costs, reflecting the court's view that both parties contributed to the circumstances that led to the legal proceedings.

Orders

Orders of the court

1. The application is dismissed.

2. There be no order as to costs.

Note:

Background

Background to the litigation

St Arnaud is a small regional community in Victoria. The people referred to in these reasons for decision live and must continue to live in that community. What follows is, at every level, a tragedy. No one person or entity comes out of this proceeding unharmed. II. FACTS Ms Flanagan has an intellectual disability. She does not read or write and requires the support of an advocate. Ms Flanagan is capable of making her own decisions but takes time to process information. Ms Flanagan has had her driver’s licence for approximately 18 years. The fact that Ms Flanagan has a disability of the kind just described or that she was employed by MCS as a supported employee is not in dispute. Ms McColl Bowen was the CEO of MCS from April 2006. Ms McColl Bowen resigned as CEO with effect from 28 May 2010. A. The 5 May Incident On 5 May 2008, at approximately 7 o’clock in the morning, Ms McColl Bowen was walking with a friend, Ms Dorothy Patton, along Bowen Street, St Arnaud. Ms Flanagan, who was not working that day, was driving her car down the street heading in the direction of Ms McColl Bowen and Ms Patton. Bowen Street was described as a street with houses on the right side with no gutters or footpath and a grass/gravel area on the left side. Ms McColl Bowen and Ms Patton were walking on the left side of the road. Ms McColl Bowen and Ms Patton allege that Ms Flanagan was driving her car on the “extreme left hand side of the road” which caused the pair to quickly leave the edge of the road to avoid the oncoming vehicle. In a statutory declaration prepared by Ms McColl Bowen, she described the incident as follows:[The car] not only came straight towards us as we walked on the side of the road but it also seemed to be accelerating. This was odd because there was no other traffic; the road is wide enough for two cars to pass each other easily; and most cars we see when we are walking give us a wide berth … We were walking near the edge of the bitumen. We were not walking in the middle of the road. When we realized (sic) that the car was not going to deviate from its path very close to the edge of the bitumen, Dorothy and I moved quickly onto the dirt beside the road … The car passed close to my left shoulder. It was going so fast it would not have been able to stop, had I failed to get out of the way. The car driver did not stop. Ms Flanagan denies the incident occurred in the manner described by Ms McColl Bowen. In her evidence, Ms Flanagan stated that when she entered Bowen Street, she saw Ms McColl Bowen and Ms Patton walking in the middle of the road, and when they saw Ms Flanagan approaching, they moved out of the way onto the side of the road. Ms Flanagan said she then drove “straight past” them. The following part of a statutory declaration prepared by Ms Patton which described the incident was read to Ms Flanagan during cross-examination:I saw a car enter Bowen Street travelling towards me on the extreme left hand side of the road, causing my walking companion, [Ms McColl Bowen], to need to quickly leave to the edge of the road to avoid contact with the oncoming vehicle.Ms Flanagan responded by saying that “what [Ms Patton] is saying is the truth but what [Ms McColl Bowen] is saying is not” and that Ms Patton was correct when she said that Ms McColl Bowen needed to quickly leave the edge of the road.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Despite concluding that the conduct of the Respondents was not discriminatory, I must emphasise that the Respondents poorly managed the 5 May incident. It was even acknowledged by counsel for the Respondents that the way in which MCS and Ms McColl Bowen dealt with the issue was not “ideal”, albeit not discriminatory. There was an acknowledged failure to communicate with Ms Flanagan either directly or through the appropriate channels throughout the entire process. That conduct (or lack of it) just compounded the mistrust between the parties. V. CONCLUSION For those reasons, the application must be dismissed. In my view, although the general rule is that costs follow the event (see Fetherston v Peninsula Health (2004) 137 FCR 262), in this case I do not think it is appropriate to make an order as to costs. The Respondents acknowledged that the way in which they dealt with Ms Flanagan was not “ideal” and that they share part of the responsibility for the fact that the proceedings were commenced in the first place: see Tate v Rafin [2000] FCA 1582 at [71].

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.