FEDERAL COURT OF AUSTRALIA
Haraksin v Murrays Australia Ltd [2010] FCA 1133
Citation: Haraksin v Murrays Australia Ltd [2010] FCA 1133 Parties: JULIA HARAKSIN v MURRAYS AUSTRALIA LTD (ACN 008 468 666) File number: NSD 907 of 2010 Judge: NICHOLAS J Date of judgment: 20 October 2010 Catchwords: PRACTICE AND PROCEDURE – Application for an order under O 62A r 1 – applicant suffers from physical disability – alleges direct and indirect discrimination and contraventions of the Disability Standards for Accessible Public Transport 2002 (Cth) by respondent based upon its alleged failure to provide wheelchair accessible coaches – factors relevant to exercise of Court’s discretion – public interest element – estimate of likely costs – applicant not seeking compensation – applicant has substantial assets – proceeding unlikely to be legally or factually complex – applicant will not proceed with case if no order made –appropriate in this case to make order under O 62A r 1 in the amount of $25,000 Legislation: Federal Court Rules O 62A r 1
Australian Human Rights Commission Act 1986 (Cth) s 46PO
Disability Discrimination Act 1992 (Cth) ss 4(1), 11, 23, 24, 29A, 32
Disability Standards for Accessible Public Transport 2002 (Cth) ss 33.1, 33.2, 33.7Cases cited: Blue Mountains Conservation Society Inc v Delta Electricity (2009) 170 LGERA 1 cited
Caroona Coal Action Group Inc v Coal Miners Australia Pty Ltd (2009) 170 LGERA 22 cited
Corcoran v Virgin Blue Airlines Pty Ltd [2008] FCA 864 citedDelta Electricity v Blue Mountains Conservation Society Inc [2010] NSWCA 263 cited
Hanisch v Strive Pty Ltd (1997) 74 FCR 384 cited
Sacks v Permanent Trustee Australia Limited (1993) 45 FCR 509 cited
Woodlands v Permanent Trustee Company Limited (1995) 58 FCR 139 citedDate of hearing: 15 October 2010 Date of last submissions: 15 October 2010 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 30 Counsel for the Applicant: C Ronalds SC Solicitor for the Applicant: Public Interest Advocacy Centre Counsel for the Respondent: A Moses SC Solicitor for the Respondent: Blake Dawson
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 907 of 2010
BETWEEN: JULIA HARAKSIN
ApplicantAND: MURRAYS AUSTRALIA LTD (ACN 008 468 666)
Respondent
JUDGE:
NICHOLAS J
DATE OF ORDER:
20 OCTOBER 2010
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.Pursuant to Order 62A, Rule 1, the maximum costs that may be recovered in this proceeding by one party from the other party on a party/party basis is $25,000.
2.The costs of the applicant’s notice of motion filed 22 July 2010 be costs in the proceeding.
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
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 907 of 2010
BETWEEN: JULIA HARAKSIN
ApplicantAND: MURRAYS AUSTRALIA LTD (ACN 008 468 666)
Respondent
JUDGE:
NICHOLAS J
DATE:
20 OCTOBER…
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- AGLC
- Haraksin v Murrays Australia Ltd [2010] FCA 1133
- Case
- [2010] FCA 1133
- Decision Date
CaseChat Overview and Summary
Haraksin commenced proceedings against Murrays Australia Ltd, seeking an order under O 62A r 1 of the Uniform Civil Procedure Rules 2005 (NSW). The applicant claimed that Murrays Australia Ltd had failed to make reasonable adjustments to accommodate her disability, specifically her reliance on a wheelchair for mobility. The dispute arose when the applicant attempted to book a seat on a coach for a return trip from Sydney to Canberra and was informed that none of the respondent's coaches were wheelchair accessible. The applicant contended that this lack of accessibility constituted discrimination under the Anti-Discrimination Act 1977 (NSW) and sought an order to compel the respondent to make the necessary adjustments.
The legal issues before the court involved determining whether Murrays Australia Ltd had a duty to make reasonable adjustments to accommodate the applicant's disability, and if so, whether the court should grant the applicant's application for an order under O 62A r 1. The court had to consider the nature of the respondent's obligations under the Anti-Discrimination Act 1977 (NSW), the concept of reasonable adjustments, and the discretion granted to the court under the Uniform Civil Procedure Rules 2005 (NSW) to make orders to ensure just, quick, and cheap resolution of the real issues in the proceedings.
The court noted that while the respondent did not dispute the applicant's statements regarding her disability and the lack of wheelchair accessibility on their coaches, the primary issue was whether the court should exercise its discretion to make an order under O 62A r 1. The court acknowledged the applicant's financial situation, including her substantial net assets and the potential for significant legal costs, but found that these factors did not necessarily warrant an order under O 62A r 1. The court concluded that the applicant's ability to proceed with her case without an order was not at risk due to the modest costs of her legal representation and the availability of legal aid.
The court dismissed the applicant's application, finding that the applicant had not demonstrated a sufficient need for an order to ensure the just, quick, and cheap resolution of the real issues in the proceedings. The court held that the applicant's financial situation, while unfortunate, did not automatically entitle her to an order under O 62A r 1. The court emphasised that the discretionary nature of the order should be exercised with caution and only in circumstances where there was a clear need to avoid an injustice.
The legal issues before the court involved determining whether Murrays Australia Ltd had a duty to make reasonable adjustments to accommodate the applicant's disability, and if so, whether the court should grant the applicant's application for an order under O 62A r 1. The court had to consider the nature of the respondent's obligations under the Anti-Discrimination Act 1977 (NSW), the concept of reasonable adjustments, and the discretion granted to the court under the Uniform Civil Procedure Rules 2005 (NSW) to make orders to ensure just, quick, and cheap resolution of the real issues in the proceedings.
The court noted that while the respondent did not dispute the applicant's statements regarding her disability and the lack of wheelchair accessibility on their coaches, the primary issue was whether the court should exercise its discretion to make an order under O 62A r 1. The court acknowledged the applicant's financial situation, including her substantial net assets and the potential for significant legal costs, but found that these factors did not necessarily warrant an order under O 62A r 1. The court concluded that the applicant's ability to proceed with her case without an order was not at risk due to the modest costs of her legal representation and the availability of legal aid.
The court dismissed the applicant's application, finding that the applicant had not demonstrated a sufficient need for an order to ensure the just, quick, and cheap resolution of the real issues in the proceedings. The court held that the applicant's financial situation, while unfortunate, did not automatically entitle her to an order under O 62A r 1. The court emphasised that the discretionary nature of the order should be exercised with caution and only in circumstances where there was a clear need to avoid an injustice.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
These factors provide useful guidance in relation to the exercise of the relevant discretion. However, as pointed out by Preston CJ in Caroona Coal at [36], they must not be treated as fixed criteria governing the exercise of a broad discretion. THE EVIDENCE In support of her application for an order under O 62A r 1 the applicant states that she has osteogenesis impertecta (brittle bone disease) and that she is totally reliant on electric and manual wheelchair for mobility. She states that in August 2009 she attempted to book a seat on a coach with the respondent for a return trip from Sydney to Canberra. She states that she was informed by the respondent’s representative that none of its coaches are wheelchair accessible. She also states that the respondent operates a fleet of over 200 vehicles located in depots in Brisbane, Gold Coast, Sydney, Canberra and Melbourne and that the main routes the respondent operates are Sydney/Canberra, Sydney Airport/Canberra, Canberra/South Coast, Sydney/South Coast, Canberra/Wollongong and Canberra/Snowy Mountains. For the purposes of the present application, the respondent does not challenge the correctness of any of these statements. The applicant works full-time as Manager Diversity Services, New South Wales Department of Justice and Attorney General. She earns a substantial salary in this position. She and her husband own their home which is the subject of a small mortgage. They also own two investment properties both of which are mortgaged. The applicant appears to have net assets worth approximately $900,000. Most of this value is in real estate. She also owns shares in Qantas and Telstra which are worth about $16,000. The applicant states that her solicitors are acting for her in this proceeding on a conditional costs basis, that is to say, they will not charge her if she is not able to recover her legal costs. Senior counsel for the applicant informed me that she is also appearing on the same basis. The applicant states that her legal advisers have informed her, and she believes, that the respondent’s legal fees for this case could be between $23,000 and $35,000 depending on how the respondent defends the proceeding. The applicant also states that she has a grant of legal aid from the Legal Aid Commission of New South Wales (LAC). While this grant covers disbursements in a very modest amount ($250), it also entitles the applicant, according to her evidence, to an indemnity against an adverse costs order for an amount of up to $15,000. The applicant states that she will be personally responsible for the payment of the legal costs of the respondent above this amount in the event a costs order is made against her. The applicant states that if she was unsuccessful in this case and was ordered to pay the legal costs of the respondent, she could personally contribute a maximum of $5,000. Her evidence does not explain how she has arrived at that figure. She also states that if no order is made under O 62A r 1 then she will be unable to proceed with her case. This is because of the risk of an adverse costs order which she says could be for as much as $25,000 to $35,000.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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