Gupta v City of Port Adelaide Enfield
[2023] FedCFamC2G 127
Federal Circuit and Family Court of Australia
(DIVISION 2)
Gupta v City of Port Adelaide Enfield [2023] FedCFamC2G 127
File number(s): ADG 191 of 2022 Judgment of: JUDGE BROWN Date of judgment: 1 March 2023 Catchwords: HUMAN RIGHTS – Disability discrimination – provision of services – application to council remove traffic control device – application to allocate a specific disability parking bay – indirect and direct discrimination – less favourable treatment
PRACTICE AND PROCEDURE – Interlocutory application for summary dismissal – whether proceedings have reasonable prospects for success – matters to be considered – application dismissed
Legislation: Australian Human Rights Commission Act 1986 (Cth)
s 46PH
Disability Discrimination Act 1992 (Cth) ss 3, 4, 5, 6, 7, 8, 9, 10, 11, 24
Federal Circuit & Family Court of Australia Act 2021 (Cth) ss 143, 190(1)
Federal Court Act 1976 (Cth) s 31A
Local Government Act 1999 (SA) ss 208, 212
Road Traffic Act 1961 (SA)
Federal Circuit & Family Court of Australia (Division 2) (General Federal Law) Rules 2021 Ch 2, rr 13.13, 22.02, 26.03
Disability Discrimination and Other Human Rights Legislation Amendment Bill 2008 (Cth)
Cases cited: IW v City of Perth (1997) 191 CLR 1
Latoudis v Casey (1990) 170 CLR 534
Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251
Oshlack v Richmond River Council (1998) 193 CLR 72
Purvis v New South Wales (Department of Education & Training) (2003) 217 CLR 92
Robinson v Commissioner of Police, New South Wales Police Force [2013] FCAFC 64
Sklavos v Australasian College of Dermatologists [2017] FCAFC 128
Spencer v Commonwealth of Australia (2010) 241 CLR 118
Stanley v Service to Youth Council Inc (2014) 225 FCR 317
Watts v Australian Postal Corporation (2014) 222 FCR 220
Webster v Lampard (1993) 177 CLR 598
Welsh v Digilin Pty Ltd [2008] FCAFC 149
Division: Division 2 General Federal Law Number of paragraphs: 118 Date of hearing: 30 January 2023 Place: Adelaide The Applicants: Appeared in person Counsel for the Respondent: Mr Jacobi KC Solicitor for the Respondent: Norman Waterhouse ORDERS
ADG 191 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SANTOSH GUPTA
First Applicant
AMITA GUPTA
Second Applicant
AND: CITY OF PORT ADELAIDE ENFIELD
Respondent
order made by:
JUDGE BROWN
DATE OF ORDER:
1 March 2023
THE COURT ORDERS THAT:
1.Pursuant to s 143 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) the application filed 4 August 2022 is dismissed.
2.The respondent is at liberty to file an application for costs within 28 days of the date of this order.
3.All extant applications are dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION
The first applicant in these proceedings, Santosh Gupta, suffers from narcolepsy. He lives with his wife, Amita Gupta, the second applicant, at premises situated at 77 Trafford Street, Mansfield Park.
The applicants’ home falls within the local government area of the City of Port Adelaide Enfield,[1] which is the respondent to the relevant application, which is brought pursuant to the provisions of the Disability Discrimination Act 1992 (Cth).[2]
[1] Hereinafter referred to as “the Council”.
[2] Hereinafter referred to as “the DDA”.
The applicants claim to have suffered discrimination by the Council as a consequence of the disability suffered by Mr Gupta arising from his narcolepsy. These reasons for judgment are directed towards the resolution of an application by the Council for the summary dismissal of the application on the basis that it has no reasonable prospects of success.
Mr and Mrs Gupta’s application has two limbs. Firstly, in March/April 2022, in response to which it asserts were community concerns relating to motorists speeding along Trafford Street and adjacent streets in Mansfield Park, the Council installed a road traffic device, in Trafford Street, adjacent to the applicants’ home.
In colloquial terms, the relevant road traffic device is to be characterised as a ‘road hump’. In technical terms, it is a Watts profile speed hump, which is approximately 100 millimetres high, which is designed to cause motorists to break before proceeding over it, thus reducing the speed of the vehicles.
Pursuant to the provisions of section 208 of the Local Government Act 1999 (SA) the Council owns all public roads within its municipality. The road traffic device was installed pursuant to powers vested in the Council by section 212 of this Act and its installation was approved according to appropriate ministerial delegation under the relevant provisions of the Road Traffic Act 1961 (SA).
Mr and Mrs Gupta both claim that the relevant road traffic hump has increased the level of noise produced by vehicles travelling along Trafford Street, near to their home and this, in turn, has reduced the quality of their sleep. As I understand their compliant, the noise is produced because vehicles brake before the road traffic device; when vehicles strike the device itself; and finally when vehicle accelerate after passing over it.
Mr and Mrs Gupta have indicated that both of them suffer from sleeping disorders, which have been exacerbated by the road traffic device in question. Each claims the device has caused them to have suffered deteriorated sleep quality, significant arousals and awakeness (sic) during their sleep.
Mr Gupta has provided the Council resolution dated 13 July 2021[3] in which the Council resolved to install road humps in Trafford Street and other adjacent streets in Mansfield Park. It did so in respect of asserted concerns, raised by residents in respect of increased traffic and speed which was asserted to create an unsafe environment for residents.
[3] See Annexure 1 to Mr Gupta’s affidavit filed 13 December 2022.
Thereafter the Council Administration had been tasked with collecting volume and speed data, over a seven day period, in the relevant roadways. This data demonstrated a significant amount of non-local traffic with relatively high speed. As a consequence a recommendation was made in respect of the installation of speed humps. Residents were then surveyed about the possible installation with 90% being in favour.
Secondly, Mr Gupta claims he has suffered discrimination because of the failure of the Council to allocate some form of parking, which he can utilise adjacent to the McDonald’s Restaurant located at 1 Baynes Place, Port Adelaide. Mr Gupta works as a food delivery driver. Many of his customers order food from the Port Adelaide McDonalds. Mr Gupta, due to his narcolepsy, has been issued with a disability parking permit, issued by the South Australian Department for Infrastructure and Transport.
It is Mr Gupta’s position that his medical condition requires him to sleep several times a day to compensate for sleep lost at other times. Given the nature of his work, he asserts that he has no other option other than to sleep in his motor vehicle. In these circumstances, his preference is to park his vehicle in the vicinity of McDonalds.
Daniel Dolatowski, an employee of the Council, has provided evidence regarding the availability of parking in the vicinity of the Port Adelaide McDonalds.[4] McDonalds itself has a carpark, which is the private property of the owner of the land concerned. The State Government owns the Park N Ride public carpark, which is adjacent to the Port Adelaide Railway Station.
[4] See affidavit of Daniel Dolatowski filed 2 December 2022.
Mr Dolatowski has deposed that the Council’s authority to manage parking issues within the areas it administers is governed by its Parking Management Policy. One of its policies is directed towards giving consideration to the whole community in an equitable manner when considering parking controls and permits.
The Council owns all other public roads in the vicinity of the relevant McDonalds, particularly on the roadway which runs under a nearby rail/tramway bridge, which provides shade. This is the location at which Mr Gupta prefers to park as, on hot days, it provides cover, whilst he sleeps. It is his evidence that it is impossible for him to sleep at other locations.
Parking under the bridge is unrestricted. Accordingly, it seems to be utilised by rail commuters, who park there all day. In these circumstances, on 11 September 2021, Mr Gupta wrote to the Council requesting that it change the parking under the bridge to short term and incorporate a disability parking spot or spots. His rationale being that he would be able utilise such a spot for his food delivery jobs and also sleep, in the shade, as he needed. His request was said to be made pursuant to the provisions of the DDA.
The Council declined the request. It being of the view that parking, under the bridge, was unrestricted to accommodate the needs of commuters. Its representative also asserted that public shaded parking was available in side streets in the vicinity of McDonalds and it was unable to install a disabled parking bay, as requested, because such a bay would not meet relevant Australian Standards.
This response was not acceptable to Mr and Mrs Gupta, who made a complaint of disability discrimination to the Australian Human Rights Commission. This complaint was terminated by the Commissioner, on 11 July 2022, pursuant to the provisions of section 46PH(1B)(b) of the Australian Human Rights Commission Act 1986 (Cth) on the basis that it could not reasonably be conciliated.
In these circumstances, Mr and Mrs Gupta commenced proceedings against the Council, in this Court, on 4 August 2022, seeking the payment of compensation; an apology; and the removal of the relevant road traffic device placed in the vicinity of their residence. Their claim alleges both direct and indirect discrimination pursuant to the provisions of the DDA.
The Council responded to this application on 1 September 2022 seeking the dismissal of the application. In respect of the traffic control device issue, the Council’s case can be summarised as follows:
·The installation of the device is neither the provision of a service or a facility;
·The installation could not amount to direct discrimination as the Council, by installing it, did not treat the applicants in a less favourable way than a comparable person without a disability;
·The installation could not amount to indirect discrimination because the applicants were not required to comply with any requirement or condition in respect of it; and
·Even if there was any such requirement or condition, it was reasonable, given the overall circumstances of the case, particularly the public interest of other road users.
In respect of the issues relating to its control of parking in the public land adjacent to McDonalds, the Council’s case can be summarised as follows:
·The decision not to exercise its regulatory authority to alter parking conditions was neither the provision of a service or facility to the applicants;
·There was not direct discrimination as all members of the public were treated in the same way in respect of the provision of parking;
·There was no indirect discrimination because Mr Gupta was not required to comply with any requirement or condition to utilise the parking in question, with which he was unable to comply because of his disability; and
·Further, even if there was such a condition or requirement, it must be considered reasonable because of the public purposes attaching to the relevant parking area.
Given its view that Mr and Mrs Gupta’s application disclosed no reasonable cause of action, on 2 December 2022, the Council applied for its summary dismissal pursuant to the provisions of section 143(2) of the Federal Circuit & Family Court of Australia Act 2021 (Cth).[5] Mr and Mrs Gupta oppose this application.
[5] Hereinafter referred to as the FCFCOA Act.
THE CASE AS CURRENTLY PLEADED
Chapter 2 of the Federal Circuit & Family Court of Australia (Division 2) (General Federal Law) Rules 2021[6] mandates the manner in which proceedings relating to Human Rights are to be initiated. In general terms such cases are to be commenced by the filing of an application in approved form without a supporting affidavit [rule 26.03].
[6] Hereinafter referred to as the Rules.
Mr and Mrs Gupta followed this procedure. They have not provided precise particulars of the disability discrimination, to which they claim they have been subjected. They assert that sections 3, 4, 5, 6, 7, 8, 9, 10 and 24 of the DDA have application to their case.
Section 3 provides the objects of the Act; section 4 defines relevant terms. I will refer to section 5 and 6 in greater detail, in due course, but these sections provide the legal provisions relating to direct and indirect discrimination. Section 24 is particularly relevant to these proceedings as it delineates circumstances relating to disability discrimination in the context of the provision of services.
Sections 8 and 9 deal with discrimination in respect of carers, assistants, assistance animals and disability animals. I am unsure of their application to the current matter. Section 10 deals with the attribution of acts of discrimination which have more than one reason for their initiation. It is deemed that the discriminatory reason be regarded as the reason for the action in question.
Under the heading Additional Information, Mr and Mrs Gupta have provided information in respect of their claim for disability discrimination. As is apparent, it does not tie their claims to any specific provisions of the DDA. It is as follows:
Road Hump
1. Applicants suffer with sleep disability where they cannot have quality sleep irrespective to day and night.
2. EnHEALTH, The health effects of environmental noise (publication number 12214) is a publication of Commonwealth of Australia, Department of Health outlines the damaging effects of noise on human health including effects on cognition and sleep disturbances.
3. South Australian Environment Protection (Noise) Policy 2007 limits the noise of 52 dB in daytime and 45dB at night time.
4.Road hump constructed by the Respondent at the Applicants property has increased the noise level substantially. Applicant recorded and videographed that the vertical displacement of the vehicles caused by the road hump increased the noise level by upto 16 dB reaching 76d8. This recording was done for just an hour inside the Applicants' bedroom and several vehicles made that noise.
5. Applicant's also noticed the deteriorated sleep quality and significant arousals and awakeness during their sleep. Further Applicants also noticed that additional noise caused by the road hump wake up the Applicants and a sleep diary for a fortnight is maintained.
Parking
6. As a disability parking permit holder and sufferer of Narcolepsy, I am entitled to request Council to allocate a parking space for the Applicant suitable to him. However, Council declined which was a discrimination based on disability. Council stated that they did not discriminate but did not provide any reason for their belief.
Attached to the application, Mr and Mrs Gupta have attached correspondence which has apparently passed between Mr Gupta and agents of the Council. As I apprehend, this correspondence delineates the two complaints of discrimination on which the applicants rely.
In relation to the traffic control device, he wrote as follows on 11 November 2021:
The City of Port Adelaide Enfield has proposed to install road humps in front of my bedroom on the road. When Initially they proposed, I objected that road hump would have deteriorating effect on my sleep as I suffer with sleeping disorder. However, they still going to install road hump in spite of the fact that I objected it. This is also a discrimination based on my disabilities. My wife also suffers with sleep disorder. Moreover there is very limited benefit of installing hump in front of my bedroom. Further, Council admitted that installing hump will increase noise in front of my bedroom.[7]
[7] See attachment B to application filed 4 August 2022.
In relation to the parking issue, he wrote as follows in October of 2021:
My name is Santosh Gupta and I do food delivery work. I have verious disabilities such as Narcolepsy, Depression, Diabetes etc. Narcolepsy makes a person very sleepy and tired. Therefore, I have to take naps mulptiple times in a day. Since I do deliveries, it is not possible to go back home for the naps but instead use my car for the naps but the car gets very hot on hot days and difficult to sleep into it. Therefore, I require a shady area to park my car near my work place where my most deliveries generate from (McDonald, Port Adelaide). There is a railway station in front of McDonald and railway bridge. Under the railway bridge, there is always shade where I can park and take naps. However, the area surrounded this railway station is used by the train commuters who park their cars for extended time. They come in the morning, park their car and catch train, come back in the evening to pick up their car. Since, there is shade under bridge, some times people park their car there to protect their cars from direct sunlight which makes difficult for me to park and take a nap. There are plenty of car parks around the railway station and surrounding streets where those commuters can park but prefer to park there to protect their car from sunlight.
In this regard I wrote to Department of Infrastructure and Transport (DIT) that, was it possible to make the parking under bridge short tem and incorporate a disability parking there? DIT forwarded this email to City of Port Adelaide Enfield for action as the parking at the subject location is managed by this council. I received a respose on 15 October 2021 that they would not alter the parking arragement and advised me that surrounding streets have shade where I could park to take a nap. Since I have to take nap multiple times, it was not possible to look for shady area at different times of the day multiple times and then drive to McDonald when I receive a job request. They also declined to provide a disability parking there saying that this parking wouldnot fit there. Since, I am civil engineer and designed 100s of parkings, I knew that a disability parking could be accommodated. However Council is not prepared to provide this eaither.[8]
[8] See attachment B to application filed 4 August 2022.
More recently again, in opposition to the application for summary dismissal, Mr Gupta has filed an affidavit. He disputes the efficacy of the speed hump in question in reducing speed, when compared to what he describes as the environmental and economical (sic) costs which are incurred by residents. He further deposes as the level of noise he has measured in his bedroom, allegedly generated by motor vehicles passing through the device, which he characterises as extreme.
Significantly, in reference to section 5 of the DDA, he deposes as follows:
The above section doesnot require discriminator to treat less favourably to the aggrieved person but by not making the reasonable adjustment would effect the aggrieved person be treated less favourably. In the current matter, Respondent did not make reasonable adjustment which has treated me less favourably because if the noise generated by the road hump caused some arousals can be tolerated by a person who doesnot have the disability like the Applicants. However, Applicant couldnot tolerate those additional arousals caused by the noise generated by the road hump as they already have significant arousals. Thus the Applicants are treated less favourably than the people who donot have such disability.[9]
[9] See affidavit of Santosh Gupta filed 12 December 2022 at [30].
Mr Gupta has not proposed what reasonable adjustments could be made in respect of the relevant speed hump or indicated what requests he has made in this regard. As such, the Council has not indicated what would be the implications, for it, of adjusting or changing the device. This is potentially relevant in the context of section
LEGAL PRINCIPLES RELATING TO DISCRIMINATION
The DDA makes it unlawful to discriminate, on the grounds of disability, in many areas of public life. These areas include in the provision of goods, services and facilities [DDA section 24]. Discrimination can occur if such goods, services and facilities are refused; in respect of conditions made applicable to their provision; or the manner in which they are provided.
The concept of disability is defined in section 4 of the DDA. It includes the following:
(a) total or partial loss of the person’s bodily or mental functions; or
(b) total or partial loss of a part of the body; or
(c) the presence in the body of organisms causing disease or illness; or
(d) the presence in the body of organisms capable of causing disease or illness; or
(e) the malfunction, malformation or disfigurement of a part of the person’s body; or
…
(g)a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;
and includes a disability that:
(h) presently exists; or
(i) previously existed but no longer exists; or
(j) may exist in the future (including because of a genetic predisposition to that disability); or
(k) is imputed to a person.
It does not seem to be disputed by the Council that Mr Gupta’s condition of narcolepsy is to be regarded as a disability. I accept that it can be considered a form of malfunction of his bodily functions.
Axiomatically, this is not a case concerned with the provision of goods. The expression facility is not defined within the DDA. It is to be given its ordinary English meaning. In the context of section 24, I take it to mean an opportunity, the equipment, or the resources for doing something; a plant, installation, or establishment. In common parlance, a public swimming pool or library would appear to me to be facilities.
The expression services is defined by section 4 of the DDA and includes services of the kind provided by government, a government authority or a local government body. There is no controversy that the respondent is a local government body.
As a whole the DDA, given its objects, contained in section 3, which are directed towards the protection of basic human and rights and dignity,[10] the Act is to be regarded as a piece of remedial legislation. As such, it is to be interpreted in a liberal and beneficial way, in keeping with its objectives. However, at the same time, the word is not to be given a meaning that is unreasonable or unnatural.[11]
[10] IW v City of Perth (1997) 191 CLR 1 at 22 per Dawson and Gaudron JJ.
[11] IW v City of Perth (1997) 191 CLR 1 at 12 per Brennan CJ and McHugh J.
In IW v City of Perth (“IW”), a case concerned with the refusal of a local authority to grant planning permission, Brennan CJ and McHugh J said as follows of the meaning of the expression services:
As the definition of services in section 4 recognises, councils provide services to the ratepayers and residents of their municipality or borough. The collection of garbage and the supply of water, gas and electricity are common examples of services which councils, depending on their statutory powers, provide to ratepayers and others. Discrimination in the provision of these services is unlawful under the Act. Moreover, in an appropriate case allowing the use of property or facilities owned by or under the control of the Council may constitute the provision of a service by that Council. Providing use of libraries, parks and sporting facilities, for example, may constitute the provision of a service which attracts the operation of the Act. So too may the provision of intangibles such as advice and information in respect of building and town planning matters.[12]
[12] IW v City of Perth (1997) 191 CLR 1 at 12 per Brennan CJ and McHugh J.
Accordingly, the term is apt to cover an act of helpful activity provided by a local authority. In my view, whether a particular local government activity is a service or not is a question of fact. In IW it was found that the refusal to grant planning permission was not a service. In Robinson v Commissioner of Police, New South Wales Police Force[13] police officers who arrested a person suffering a disability and then processed him in respect of a bail application were not providing him with a service amenable to jurisdiction under the DDA.
[13] Robinson v Commissioner of Police, New South Wales Police Force [2013] FCAFC 64.
In each case, it was necessary for the Court to characterise what was the service being refused or offered to the individual concerned who was claiming less favourable treatment in order to determine whether any discrimination had occurred. Accordingly, in the present matter, it is necessary for Mr and Mrs Gupta to identify what is the service which the Council was offering them in respect of the installation of the road traffic device in the vicinity of their home and for Mr Gupta to identify what is the relevant service provided to him by the Council in its provision of parking in the area of the overpass near the Port Adelaide Railway Station. Once such a service is identified the applicants need to demonstrate how they were discriminated against, as defined by the DDA, in either the refusal to provide the service in question or in its provision.
In IW Brennan CJ and McHugh J said as follows:
In determining whether a person has refused to provide a service within the meaning of the Act, it is necessary to identify with precision what service has allegedly been refused to that person and what service the alleged discriminator provides.[14]
[14] See IW v City of Perth (1997) 191 CLR 1 at 16-17 per Brennan CJ and McHugh J.
In the case of the road traffic control device, it will be necessary for Mr and Mrs Gupta to identify what service the Council has provided them. It is difficult to see that there has been a refusal to offer them a service. Therefore, if they do successfully identify the service entailed in the provision of the speed hump, they need to establish it was provided to them on a discriminatory basis. Similar considerations apply to the parking issues raised by Mr Gupta.
The expression discriminate is defined in section 4 of the DDA. It has the meaning given by sections 5 and 6 of the Act, which deal with the concepts of direct discrimination and indirect discrimination respectively. It provides two relevant limbs, which must be satisfied. Specifically, section 5 of the DDA provides as follows:
(1)For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person ) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.
(2)For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a)the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and
(b)the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.
(3)For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments
Firstly, as a consequence of the use of the word because in sub-section (1) there must be a causal connection between the disability asserted by the aggrieved person and the conduct complained of. Under section 5, the disability (less favourable treatment) must be a basis or reason for the conduct of the discriminator.[15]
[15] See Sklavos v Australasian College of Dermatologists [2017] FCAFC 128 at [23].
Secondly, the basis of the definition of direct discrimination must rest on a notional comparison between the way in which the person with a disability has been treated (the aggrieved person) and the way in which another person without the disability would have been treated in in circumstances that are the same or not materially different.
Accordingly, in the present matter, in order to establish direct disability discrimination, the applicants must demonstrate:
·Firstly, that the relevant disability caused the Council to install or refuse to remove the speed hump in the manner in which it did and the relevant disability was the reason why the Council declined to change the parking conditions near the McDonalds in question or assign a disability parking spot to Mr Gupta.
·Secondly, in its provision or refusal of some form of services to them, Mr or Mrs Gupta must demonstrate that they were treated in a materially different way, by the Council, to other persons, who do not suffer their disability.
The essential issues being did the disability cause the Council to act in the manner in which it did and how a person without the disability would have been treated in the same circumstances. Necessarily, this tasks involves the formulation of a notional comparator to the aggrieved person or persons.
The leading authority, in respect of how a court such as this one, is to formulate a comparator, without the disability to weigh against the treatment accorded to the person bringing a complaint of direct discrimination, in the same circumstances, pursuant to the provisions of section 5 of the DDA is Purvis v New South Wales (Department of Education & Training) (“Purvis”).[16]
[16] See Purvis v New South Wales (Department of Education & Training) (2003) 217 CLR 92.
In Purvis Gummow, Hayne and Heydon JJ (the majority) said as follows:
Section 5(1) of the Act requires comparison between the treatment which the discriminator gives, or proposes to give, to the aggrieved person and the treatment that the discriminator would give, or would propose to give, to a person without the aggrieved person's disability "in circumstances that are the same or are not materially different". If that comparison reveals that the disabled person was treated less favourably, the further question which must be asked is whether that was because of the disabled person's disability. Section 5(1), therefore, requires equality of treatment between the disabled and those who are not. Attention is invited to how the discriminator "treats or would treat a person without the disability" (emphasis added). The "comparator" identified by s 5(1) is "a person without the disability".[17]
[17] Purvis v New South Wales (Department of Education & Training) (2003) 217 CLR 92 at [213].
In Purvis the majority said as follows in respect of how courts are to approach the issue of causality:
… it is enough to say that we doubt that distinctions between motive, purpose or effect will greatly assist the resolution of any problem about whether treatment occurred or was proposed "because of" disability. Rather, the central question will always be – why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it "because of", "by reason of", that person's disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression "because of".[18]
[18] Purvis v New South Wales (Department of Education & Training) (2003) 217 CLR 92 at [236].
The aggrieved person in Purvis was a secondary school student with brain damage. His disability manifested itself in violent and disruptive behaviour towards teachers and other students at the school which he attended. Ultimately his behaviour, stemming from his disability, resulted in him being excluded from the high school, operated by the New South Wales Department of Education, which he attended.
The question for the High Court in Purvis was, in dealing with the second aspect of section 5(1), what attributes should be ascribed to the required comparator for the purposes of determining whether direct discrimination had occurred. Was the comparator a person without the disability simpliciter or a person without the disability but who nonetheless was deemed to have behaved in a similar violent and disruptive fashion to the complainant?
The High Court determined that comparison required by section 5 of the DDA is not a purely formal one between a person with the disability and one without it. Section 5 requires a comparison between a person with the disability and one without it but the comparator must be taken to display the same behaviour and conduct as that exhibited by the disabled person.
Accordingly, how the comparator required for any given case is to be constructed must depend on the particular facts and circumstances of the case concerned. In Purvis, the comparison required by section 5(1) of the DAA was with a non-disabled student, who exhibited violent behaviour. The statute required a comparison with a student without the disability, but not a student without the disruptive behaviour, which had been part of the circumstances leading to the expulsion of the student in question.
In Purvis the majority indicated that the circumstances, referred to in section 5(1) are all of the objective circumstances surrounding how the disabled person has been or is intended to be treated. If there is less favourable treatment demonstrated the next issue is why that has occurred. The majority said as follows:
…where it is alleged that a disabled person has been treated disadvantageously, those difficulties do not intrude. All of the circumstances of the impugned conduct can be identified and that is what s 5(1) requires. Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or were not materially different.[19]
[19] Purvis v New South Wales (Department of Education & Training) (2003) 217 CLR 92 at [224].
In summary, direct discrimination occurs where, because of a person’s disability, the discriminator treats that person less favourably than the discriminator would have treated a person without the disability, in circumstances that are the same or are not materially different. The comparison arising is not simply between the complainant and someone who does not have the disability concerned.
Rather, this comparison must be drawn between what the discriminator would have done in the same circumstances to a person without the disability, but whose circumstances are taken to include salient aspects of the aggrieved person’s conduct.
Indirect discrimination is concerned with unfair or equal outcomes, which disadvantage a disabled person in comparison to the more significant numbers of abled-bodied persons within the community. The section provides as follows:
(1)For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person ) on the ground of a disability of the aggrieved person if:
(a)the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and
(b)because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and
(c)the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability.
(2)For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person ) on the ground of a disability of the aggrieved person if:
(a)the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and
(b)because of the disability, the aggrieved person would comply, or would be able to comply, with the requirement or condition only if the discriminator made reasonable adjustments for the person, but the discriminator does not do so or proposes not to do so; and
(c)the failure to make reasonable adjustments has, or is likely to have, the effect of disadvantaging persons with the disability.
(3)Subsection (1) or (2) does not apply if the requirement or condition is reasonable, having regard to the circumstances of the case.
(4)For the purposes of subsection (3), the burden of proving that the requirement or condition is reasonable, having regard to the circumstances of the case, lies on the person who requires, or proposes to require, the person with the disability to comply with the requirement or condition.[20]
[20] Disability Discrimination Act 1992 (Cth) s 6.
In Sklavos v Australasian College of Dermatologists (“Sklavos”) Bromberg J indicated that:
Broadly stated, indirect discrimination as defined by s 6(1) arises where a discriminator requires the aggrieved person to comply with a “requirement or condition” which the aggrieved person cannot comply with because of that person’s disability and the aggrieved person is consequently disadvantageously affected.[21]
[21] Sklavos v Australasian College of Dermatologists [2017] FCAFC 128 at [56].
Section 6 provides two incidents of indirect discrimination in sub-sections (1) & (2) respectively. Firstly, circumstances in which the aggrieved person is unable to comply with the conditions imposed at all; secondly circumstances in which that person would be able to comply with the relevant condition if reasonable adjustments are made.
As previously indicated, in the relevant proceedings, the applicants allege both direct and indirect discrimination in respect of both the speed hump issue and the provision of parking issues. In this context, Mr Jacobi of King’s Counsel for the respondent submits that a claim for disability discrimination cannot be mounted under both section 5 and section 6 of the DDA as the definitions of discrimination provided by each section are mutually exclusive.
In Sklavos Bromberg J held this to be the case. His Honour said as follows:
If it were otherwise, anomalous and obviously unintended outcomes would result. A requirement or condition which would not constitute discrimination under s 6(1) or (2) because the requirement or condition was reasonable (see s 6(3)) could constitute discrimination under s 5.[22]
[22] Sklavos v Australasian College of Dermatologists [2017] FCAFC 128 at [14].
In their application, the applicants have alleged that the Council has failed to make reasonable adjustments in respect of both the speed hump issue and the provision of parking. The concept of reasonable adjustments is applicable to both direct and indirect discrimination.
The expression reasonable adjustment is defined in section 4 of the DDA and means:
[A]n adjustment to be made by a person is a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship on the person.
The concept of reasonable adjustment was introduced into Commonwealth Humans Rights Legislation by the Disability Discrimination and Other Human Rights Legislation Amendment Bill 2008 (Cth), which reflected Australia’s ratification of the Convention on the Rights of Persons with Disabilities, which provides the following definition:
“Reasonable accommodation” means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.
It has been referred to as a mechanism directed towards securing substantive equality for those with disabilities. In Watts v Australian Postal Corporation (“Watts”)[23] Mortimer J said of this aspect of the DDA that
…like other anti-discrimination legislation (whether state or federal), [the DDA] represents a compromise by the Parliament between the protection and advancement of the right to equality of treatment and opportunity enjoyed by people with disabilities, and the interests of other groups in the community who interact with people with disabilities and whose conduct, though it might be discriminatory, Parliament makes a legislative choice to exempt from compliance with prohibitions on discrimination.
[23] Watts v Australian Postal Corporation (2014) 222 FCR 220 at [12].
Obvious examples of reasonable accommodation, in this context, are the provision of a ramp for a person in a wheelchair to access a particular facility, such as a place of work or a library, which would be otherwise accessible only via stairs; or the provision of a hearing loop to enable a person with compromised hearing to take part in a community meeting; or the provision of a magnifier or modified computer to allow a person with a visual disability to work in a particular field.
The provision of the relevant adjustment, in each case, enables the person suffering a disability to take part in a particular activity on the same terms as a person without the disability. Axiomatically, in such cases, depending on the circumstances prevailing, the adjustment in question can be provided without unjustifiable hardship to the person who must make the relevant accommodation.
Section 11 of the DDA defines the expression unjustifiable hardship in the following terms:
(1)For the purposes of this Act, in determining whether a hardship that would be imposed on a person (the first person) would be an unjustifiable hardship , all relevant circumstances of the particular case must be taken into account, including the following:
(a)the nature of the benefit or detriment likely to accrue to, or to be suffered by, any person concerned;
(b) the effect of the disability of any person concerned;
(c)the financial circumstances, and the estimated amount of expenditure required to be made, by the first person;
(d) the availability of financial and other assistance to the first person;
(e) any relevant action plans given to the Commission under section 64.
Example: One of the circumstances covered by paragraph (1)(a) is the nature of the benefit or detriment likely to accrue to, or to be suffered by, the community.
(2)For the purposes of this Act, the burden of proving that something would impose unjustifiable hardship lies on the person claiming unjustifiable hardship.
Mortimer J considered the issue of reasonable adjustment In Watts and said as follows:
The word “adjustment” is left undefined by the statute and is to be given its ordinary meaning as “an alteration or modification”: Oxford English Dictionary (online edition). However, unlike other aspects of the DDA (see, for example, s 6) the statute does not leave it to the discriminator in the first instance and the Court in the second instance to determine whether an adjustment is “reasonable”. Although the word “reasonable” is used, it has no qualitative character in its context. It is simply part of a term defined by legislative declaration of what is outside the term. All that Parliament declares to be outside the term is a modification or alteration which imposes unjustifiable hardship on a person, taking into account the considerations applicable to identifying hardship of that nature, which are set out in s 11 of the DDA.
To what does the adjustment relate? By s 5(2), it is made “for” the person with a disability. It is not made “to” the position the person occupies. It is not made “to” the equipment a person uses. In the context of discrimination at work in Div 1 of Part 2 of the DDA, it is an alteration or modification “for” the person, which operates on the person’s ability to do the work she or he is employed or appointed to do. The adjustment is to be enabling or facultative. There is, in my opinion, no reason in the text, context or purpose of s 5(2), read with s 4 and within the DDA as a whole, to construe the word “adjustment” in a way which might arbitrarily limit the kinds of modifications or alterations required to enable a disabled worker to perform his or her work. Technology changes and advances at an increasing pace and disabled people can be the beneficiaries of such changes and advances. The technological advance which enables Professor Stephen Hawking to compose text and communicate orally through cheek movements detected by an infrared switch mounted on his spectacles is but one well-publicised example of an “adjustment” that, a decade or two ago, may have been little more than a theory.[24]
[24] Watts v Australian Postal Corporation (2014) 222 FCR 220 at [22] – [23].
In the current matter, in my view, Mr and Mrs Gupta have not delineated what is the reasonable adjustment they propose in respect of the speed hump in question. In respect of the parking issue, the adjustment sought would seem to be the provision of time limitations on the parking spaces in question and the designation of one as being available only for drivers with a disability.
LEGAL PROVISIONS RELEVANT TO SUMMARY DISMISSAL
Section 143 of the FCFCOA Act grants the Court a discretion to grant summary judgment (either allowing a defence or dismissing a claim without hearing evidence) if it is;
Satisfied that the other party has no reasonable prospects of successfully defending or prosecuting the proceedings concerned.
However, in this context, section 143(3) provides the admonition that a case need not be hopeless or bound to fail to have no reasonable prospects of success. Section 143 is in similar terms to section 31A of the Federal Court Act 1976 (Cth).
In this context, the Court is conferred with a discretion, pursuant to rule 13.13 of the Rules to summarily dismiss an application if satisfied that the relevant proceedings have no reasonable prospects of success and significantly, so far as the current matter is concerned, the proceedings can be characterised as being frivolous or vexatious; or an abuse of process.
As with all discretions, the discretion provided by rule 13.13 must be exercised judicially and according to the dictates of justice. At a fundamental level, the Court has an obligation to investigate and determine any claim for judicial relief, which has been honestly made in the proceedings before it, by the suitor concerned. The power to dismiss an application summarily has been frequently described as being one which is to be invoked sparingly even in cases which can be characterised as being inherently weak.
On the other hand, the Court retains the authority to bring proceedings to an end prematurely if such proceedings would amount to an abuse of process or their prolongation would clearly inflict unnecessary injustice upon the opposite party.[25] These two considerations must be carefully balanced against one another in any application for summary dismissal bearing in mind the potentially significant implications for any party who will be the subject of such an order.
[25] Welsh v Digilin Pty Ltd [2008] FCAFC 149 at [32] (Tamberlin, Greenwood and Collier JJ).
The provision of section 143 of the FCFCOA Act is directed towards the expeditious disposal of unmeritorious proceedings and a concomitant saving of costs to the parties and Court resources. However, laudable those aims are, the Court must be careful to avoid becoming a slave to expediency.
Division 2 of the Federal Circuit and Family Court is a busy court of first instance. Part of its raison d’être is to facilitate the just resolution of disputes as quickly, inexpensively and efficiently as possible.[26]This is described, in the relevant legislation, as the overarching purpose of case management provisions.
[26] See Federal Circuit & Family Court of Australia of Australia Act 2021 (Cth) at section 190(1).
In Spencer v Commonwealth of Australia,[27] French CJ and Gummow J said of section 31A of the Federal Court Act 1976 (Cth) that it:
[A]uthorises summary disposition of proceedings on a variety of bases under its general rubric. It will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. It will include the class of case in the longstanding category of cases which are "frivolous or vexatious or an abuse of process". The application of s 31A is not, in terms, limited to those categories.[28]
[27] Spencer v Commonwealth of Australia (2010) 241 CLR 118.
[28] See Spencer v Commonwealth of Australia (2010) 241 CLR 118, 131 [22] (French CJ and Gummow J).
In Webster v Lampard,[29] the High Court said as follows:
The power to order summary judgment must be exercised with exceptional caution … and should never be exercised unless it is clear that there is no real question to be tried.[30]
[29] Webster v Lampard (1993) 177 CLR 598.
[30] See Webster v Lampard (1993) 177 CLR 598, 602 (Mason CJ, Deane and Dawson JJ).
In Lindon v Commonwealth of Australia (No 2),[31] Kirby J provided a list of principles applicable to summary judgment:
•It is a serious matter to deprive a party of access to the courts and the power to do so should be rarely and sparingly used;
•The party seeking summary dismissal must show that it is clear on the face of the other party’s documents that the other party lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious;
•That a case appears weak and unlikely to succeed is of itself not sufficient to satisfy summary dismissal;
•If there is a serious legal question to be tried, then it should ordinarily be determined at a trial of the issues;
•Where, notwithstanding a defect in the pleadings, if it appears that a party may have a reasonable cause of action which has not been put in proper form, a Court will ordinarily allow that party to reframe the pleadings; and
•The “guiding principle” is doing what is just.
[31] Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251 at 256 (Kirby J).
Kirby J said further in Lindon:
If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.
DISCUSSION
(a) Traffic Control Device
The first issue is whether, in installing the speed hump in Trafford Street, the Council was providing a service or facility to Mr and Mrs Gupta. The Council contends that it was not. Its case is that the speed hump was installed in response to generalised community concerns about the dangers arising from high volumes of non-residential traffic travelling at speed through the relevant streets of Mansfield Park and in this context, the device was provided to the community as a whole pursuant to its generalised local government responsibilities and certainly not to Mr and Mrs Gupta personally. In these circumstances, it contends no issue of direct discrimination can arise.
In his submissions Mr Jacobi KC emphasises that a local government authority, in the exercise of its responsibilities can provide all manner of services and facilities – some of a generalised nature; others which are tailored to individuals. In the former category, a council may provide a street sweeper to clean gutters which operates in the entire municipality, which benefits many individuals; in the latter, it may provide a swimming pool or library, which by their nature provide a service to each individual who comes to use them – to swim or borrow a book.
As Brennan CJ and McHugh J pointed out in IW, any aggrieved person bringing a claim under section 24 of the DDA must identify with precision what is the service which has been allegedly to them on a discriminatory basis. It is Mr Jacobi KC’s contention that Mr Gupta and Mrs Gupta have not been able to identify the service provided to them, by the Council, in respect of the road hump.
Accordingly the Council refutes the submission that it was providing a service to the applicants per se as required by section 24 of the DDA. If the Court accepts this submission, it is the contention of Mr Jacobi KC that this is the end of the application so far as the traffic control device is concerned as it can have no reasonable prospects of success. In my view, this is a powerful argument.
However, in my view, more telling submissions can be made in respect of the application of section 5 and considerations of direct discrimination. Firstly, there is no evidence of any causal connection between the installation of the speed hump and any disability suffered by either of the applicants. The device was installed in response to concerns raised by community members about the speed and volume of traffic in Trafford Street.
In addition, there is no evidence to indicate that anything germane to the applicants themselves was a motivating factor in respect of the Council’s decision to place the traffic hump where it was, other than they lived in Trafford Street, which was beset by unacceptable traffic levels. Essentially, the treatment which the applicants received – the installation of a traffic hump – and in respect of which they now complain, arose because of where they live not because of any disability suffered by them.
Accordingly, the necessary comparator for the purposes of section 5 is a resident of Trafford Street, who does not suffer from narcolepsy. In my view, the only conclusion which can be drawn is that such a person would have been treated in the same way as Mr and Mrs Gupta. The motivating factor for the placement of the speed hump was the Council’s judgment as to what was the most efficacious location, in Trafford Street, to secure its objective of reducing traffic speed and volume. As such, any disability suffered by Mr and Mrs Gupta was extraneous to these deliberations.
In terms of what reasonable adjustments could or could not have been made, the applicants have provided no evidence as to what could be done to alter or modify the device. Presumably, it could be dismantled and moved to another location in Trafford Street. However, what would be the logistic implications of such an outcome and what would be its impact on managing traffic speed and volume, from the Council’s perspective, has not been examined.
However, in my view, in terms of section 5(2)(b) of the DDA, if the device was dismantled and moved and placed in the vicinity of the property of another resident of Trafford Street, who presumably does not suffer some form of disability, in order to accommodate the disabilities of Mr and Mrs Gupta, this would amount to them receiving more favourable treatment than the theoretical comparator. This is not the purpose to which the section is directed.
In terms of the analysis provided by Mortimer J in Watts, such an adjustment would not have been made for Mr and Mrs Gupta. Rather it would have been made to the road traffic device in Trafford Street. In my view, the identification of any less favourable treatment requires an inquiry into the factual treatment received by the aggrieved person.
In this particular case, if a person without a disability had complained about the location of a traffic control device on the basis of the noise it generated alone, it appears to me such a person would have been treated in the same way as the applicants in the present case. Therein lies the difficulty for the applicants, the hypothetical comparator would have been treated in the same way as them. In my view, thus the applicants cannot establish any disadvantageous treatment for a proscribed reason.[32]
[32] See Stanley v Service to Youth Council Inc (2014) 225 FCR 317 at [132] – [133].
As indicated above, to establish indirect discrimination, it is necessary for the applicants to point to the operation of a condition or requirement, which although neutral on its face in the sense that it is applicable to everyone, results in an unequal outcome for them because of their disability. Again this involves an analysis of the specific facts of the case.
In this context, Mr Jacobi KC submits that the onus is on the applicants to establish, with some precision what is the requirement or condition germane to the installation of the relevant traffic control device, which they are incapable of satisfying, which has resulted in an unfair outcome to them because of their disability. Mr Jacobi KC contends that they have not done so.
As previously indicated, the traffic control device was installed where it was because of concerns about the volume and speed of traffic in Trafford Street. In a strict mechanical sense, the only users of the hump are those who drive over it and as a consequence of its design are required to slow the speed of their vehicles. As such, in my view, it is impossible for Mr and Mrs Gupta to establish that there is any particular condition or requirement pertaining to the speed hump, with which they cannot personally comply because of their disability.
For all these reasons, it seems to me to be the case that the applicants are not advancing a case, in respect of the installation of the traffic control device, which can be considered to be a reasonable one in the sense that it has no reasonable prospects of success pursuant to the provisions of the DDA.
I reach this conclusion on the basis that the applicants have not delineated the nature of the service provided to them by the Council in respect of the application of section 24 of the Act and more importantly have not provided an evidentiary basis on which it can be concluded that they have suffered any form of discriminatory outcome in the sense that they have been treated less favourably or prejudicially in the installation of the relevant speed hump in Trafford Street.
Essentially the speed hump was installed because of the manner in which motorists utilised Trafford Street. This had nothing to do with where or how Mr and Mrs Gupta occupied their home in Trafford Street. As such, they have not been discriminated against on account of their disabilities.
(b) Provision of parking in the vicinity of McDonalds
As with issues to do with the installation of the speed hump, in order to satisfy the provisions of section 24 of the DDA, Mr Gupta must specify the nature of the service which he asserts has been provided to him by the Council and then delineate the basis on which he claims such a service has been provided to him in a discriminatory fashion.
In my view the provision of parking spaces, on the public roadway with which it is vested, is a generic function of local government. If it is a service, it is provided to all motorists who wish to park their motor vehicles in the vicinity of the Port Adelaide Railway Station. Amongst other things, the Australian Oxford Dictionary defines service as the provision or system of supplying a public need, e.g. water, gas, electricity, telephone, etc.
In this sense, I accept that the provision of designated parking spaces can be characterised as a public need. It is also helpful, to both motorists and the public, that parking be regulated. However, the allocation of those spaces, at the location which is in dispute in the current matter, is made on a totally non-discriminatory basis. Any person can use any space, at any time, provided the space is empty.
The relevant comparator, for the purposes of section 5 of the DDA, in this case, would be a food delivery person without narcolepsy, who wishes to park in the shade near McDonalds, Port Adelaide. In my view, such a person is in exactly the same position as Mr Gupta in respect of securing a parking spot in the vicinity of the relevant over pass. Such a person must either come early, prior to the commuter rush, to secure a place or rely on happenstance that a spot is available at the desired time. Accordingly, in terms of the DDA, Mr Gupta has not been subject to less favourable treatment. He is treated the same as all potential parkers in the area.
In addition, it can be said that there is any other form of direct discrimination. The Council has not elected to set any particular conditions on its provision of parking, in the relevant area, because of any disability suffered by Mr Gupta or any other person. The parking in question is provided to all, subject to the same conditions. Essentially, the parking is provided equitably to the community as a whole.
In this context, in my view, it is clear that it cannot be said that Mr Gupta, in accessing the relevant parking areas, is subject to any requirement or condition, which he cannot satisfy because of his disability. He cannot park where he wishes, at the time of his preference, because of the nature of his work, not because of his disability. As such, I do not consider that he can establish any incident of indirect discrimination.
In these circumstances, it is my view, that if the Council was required to re-zone the parking in the area in question or to allocate a specific disability parking place, it would be according Mr Gupta more favourable treatment than other members of the community who wish to park in the vicinity of either the railway station or the McDonalds. This is not congruent with the objects of the DDA.
CONCLUSIONS
For all these reasons, I have come to the conclusion that the applicants have no reasonable prospects of succeeding in their action against the Council and it should be dismissed pursuant to the provisions of section 143 of the FCFCOA Act.
In both its response to the application and in its application for summary judgment the Council has sought that the applicants pay its costs. In his extensive submissions, Mr Jacobi KC has not made any specific submissions regarding the issue. The same considerations apply to Mr and Mrs Gupta.
In these circumstances, in my view, the Court must be cautious prior to making any order as to costs. However, it remains the case that the general rule, in General Federal Law proceedings, is that costs follow the event. The purpose of an award of costs is to partially reimburse a litigant for costs actually incurred and provide compensation for the financial disadvantage arising as a result of being a successful litigant in proceedings. The rationale for such an order being that it is:
… just and reasonable that the party who has caused the other party to incur the costs of litigation should reimburse that party for the liability incurred. The order is not made to punish the unsuccessful party. Its function is compensatory.[33]
[33] See Latoudis v Casey (1990) 170 CLR 534 at 567 per McHugh J.
In this case, the Council has been put to the expense of having to defend an action which I have found to have no reasonable prospects of success. I appreciate that the Council is a well-funded corporate entity, which no doubt is a frequent litigator, in respect of all manner of matters. However, the fact remains that its rate payers, who must ultimately fund the costs of defending proceedings such as these and, as such, the Council is under an obligations to recoup its costs whenever it is open to it to do so.
On the other hand, it seems improbable that the applicants could easily absorb a costs order against them, given their likely circumstances. As such, the issue of costs is likely to be a matter of great moment to each of them. In these circumstances, in my view, the lack of extensive submissions in respect of costs, behoves the Court to take a cautious approach in respect of the matter.
It is also possible that Mr and Mrs Gupta will attempt to characterise their litigation, pertaining as it does to issues of disability, as one motivated by issues of public interest. As such, they may contend that it is not in the public interests that individuals who have been subject to illegal discrimination should be deterred from bring bona fide cases for fear of being penalised by costs orders.
In this context, I acknowledge that the Disability Discrimination Act is to be characterised as beneficial legislation, which is designed to encourage those suffering illegal discrimination, because of their disabilities, to come forward and seek redress. As such, the public is likely to be interested in seeing those discriminated against being compensated and those who have discriminated against them being censured.
However this characterisation of the applicable legislation does not result in all litigation arising under its provisions as being related to public interest. In a number of cases, including Oshlack v Richmond River Council[34] superior courts have cautioned in respect of courts easily departing from the general rule that costs should follow the event, in matters said to raise matters pertaining to the public interest. Again, issues such as these militate in favour of a cautious approach.
[34] Oshlack v Richmond River Council (1998) 193 CLR 72.
In these circumstances, I bear in mind the provision of rule 22.02 of the Rules which provide that an application for costs, which may include the mode of calculation of any order for costs sought, may be made within 28 days after the finalisation of any proceedings. I will direct that, if it wishes, the Council bring such an application so that Mr and Mrs Gupta may respond to it.
For all these reasons, the orders of the Court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and eighteen (118) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 1 March 2023
0
15
0