Hudson v Australian Broadcasting Corporation
[2016] FCCA 917
•21 April 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HUDSON v AUSTRALIAN BROADCASTING CORPORATION | [2016] FCCA 917 |
| Catchwords: PRACTICE AND PROCEDURE – Whether power under r.21.03 of the FCC Rules to specify the maximum amount of costs that one party may recover against another party is restricted to specifying costs that are to be assessed on a party and party basis or whether the power extends to specifying the maximum amount of costs that may be recovered if assessed by applying Schedule 1 to the FCC Rules – r.21.03 restricted to specifying the maximum costs that may be recovered on a party and party basis. HUMAN RIGHTS – Disability discrimination – claim for relief under s.46PO of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) based on an alleged contravention of s.24 of the Disability Discrimination Act 1992 (Cth) (DDA) – elements of causes of action for relief under s.46PO of the AHRC Act based on alleged contraventions of s.24 of the DDA – construction of “a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person “a person . . . discriminates against another person” as defined in s.5(2) of the DDA – manner in which a supplier may contravene s.24 of the DDA by discriminating against an aggrieved person within the meaning of s.5(2) of the DDA. |
| Legislation: Australian Human Rights Commission Act 1986 (Cth), s.46PO Federal Circuit Court Rules 2001, rr.21.03, 21.03(1), 21.03(2), 21.10 Federal Circuit Court Rules 2001, Sch.1 |
| Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd & Minister for Mineral Resources [2009] NSWLEC 165 Corcoran v Virgin Blue Airlines Pty Ltd [2008] FCA 864 Hanish v Strive Pty Ltd (1997) 74 FCR 384 |
| Applicant: | SUZANNE HUDSON |
| Respondent: | AUSTRALIAN BROADCASTING CORPORATION ABN 52 429 278 345 |
| File Number: | SYG 1889 of 2015 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 19 October 2015 |
| Date of Last Submission: | 19 October 2015 |
| Delivered at: | Sydney |
| Delivered on: | 21 April 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms A Perigo |
| Solicitors for the Applicant: | Public Interest Advocacy Centre |
| Counsel for the Respondent: | Ms K Eastman SC |
| Solicitor for the Respondent: | Mr R I Simpson |
ORDERS
Pursuant to r.21.03 of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules), the maximum costs that may be recovered in this proceeding by one party against another party on a party and party basis is $40,000.
Subject to order 3, the costs of the application for an order under r.21.03 of the FCC Rules be costs in the proceedings.
The parties have liberty to apply within 21 days for an order varying or vacating order 2.
NOTES
The amount specified in order 1 of these orders does not include an amount that a party may be ordered to pay because the party:
(a)has failed to comply with, or has sought an extension of time for complying with, an order or with any of the FCC Rules; or
(b)has sought leave to amend a document; or
(c)has otherwise caused another party to incur costs that were not necessary for the economic and efficient progress of the proceeding or hearing of the proceeding.
Order 1 is not to be taken to imply that the costs a party may be ordered to pay in these proceedings are to be assessed on a party and party basis.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1889 of 2015
| SUZANNE HUDSON |
Applicant
And
| AUSTRALIAN BROADCASTING CORPORATION ABN 52 429 278 345 |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, Ms Hudson, applies for an order under r.21.03 of the Federal Circuit Court Rules 2001 (FCC Rules) that the Court specify $15,000 as the maximum costs that may be recovered on a party and party basis. Ms Hudson, who has 1% vision, has applied for this order in proceedings she has brought under s.46PO(1) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) in which she alleges the respondent (ABC) has engaged in unlawful discrimination against her.
In broad terms, Ms Hudson alleges the ABC engaged in unlawful discrimination within the meaning of s.24 of the Disability Discrimination Act 1992 (Cth) (DDA) by failing to make available to her after 4 November 2012 an audio description service (ADS) similar to that which the ABC provided with some programs (Trial Programs) it broadcast in a trial it conducted from 5 August 2012 to 4 November 2012 (Trial Period). Audio description is an additional verbal commentary that complements the underlying soundtrack of a program; it is a narration that explains what is happening visually during a program.[1] Ms Hudson alleges the ADS the ABC provided during the Trial Period constituted a “reasonable adjustment” within the meaning of s.4(1) of the DDA to the broadcasting services by means of which the ABC provided the Trial Programs to Ms Hudson; and that the ABC’s providing programs by means of broadcasting services after the Trial Period without an ADS amounted to a failure by the ABC to make reasonable adjustments for Ms Hudson in relation to the provision to Ms Hudson of programs by means of broadcasting services.
[1] Affidavit of R I Simpson, annexure “RS1”
These reasons are arranged as follows. I first set out the principles that govern the exercise of the power conferred by r.21.03 of the FCC Rules. It will be seen that the question whether the power should be exercised depends on the consideration and weighing of a number of factors. The proper weighing of most of those factors, however, requires an appreciation of the nature of Ms Hudson’s claim, and the issues that are likely to arise on that claim. Before I consider each of the factors, therefore, it will be necessary to identify the elements of the causes of action for relief under s.46PO of the AHRC Act that are based on an alleged contravention of s.24 of the DDA, and the issues that arise on the points of claim and on the points of defence that Ms Hudson and the ABC have respectively filed.
Rule 21.03 of the FCC Rules - principles
It is a usual consequence of civil litigation that a party who unsuccessfully pursues a claim against another party, or who unsuccessfully defends a claim brought by another party, is ordered to pay to the other party an amount on account of the legal costs the other party has incurred in successfully defending or pursuing the claim. Whether or not in a given case an unsuccessful party will be ordered to pay the other party’s costs is ordinarily within the discretion of the relevant court; but, in most cases, the discretion will be well-exercised by the court ordering the unsuccessful party to pay the costs of the successful party.[2]
[2] “The exercise of the discretion takes account of all of the contextual circumstances of the litigation and the conduct of the parties. One aspect of the award of costs is a recognition that a party has been put to expense which, taking account of the merits as ultimately found on the trial of the action, might otherwise have been avoided. That consideration does not infuse the award of costs with any sense of penalty or punishment but simply recognises the compensatory nature of an award of costs, in context and according to principle. That is why an award of costs, although involving the exercise of a discretion, generally favours the successful party.” - Kazar (Liquidator) v Kargarian; In the Matter of Frontier Architects Pty Ltd (In Liq) [2011] FCAFC 136 at [9] (Greenwood, Rares and Foster JJ)
The question whether an unsuccessful party should be ordered to pay the costs of the successful party is usually determined after a court adjudicates a claim for final or interlocutory relief. In some cases the court determines both whether a party should be ordered to pay the costs of the other party, and the amount the party must pay in order to discharge the order for costs. In most cases having at least some degree of complexity, however, a court goes no further than ordering that the unsuccessful party pay the costs of the successful party. The amount the unsuccessful party must pay to discharge such order is then determined by agreement or, where the parties cannot agree, by a compulsory method for assessing costs prescribed by the relevant rules of court. As I have described elsewhere,[3] the FCC Rules provide a number of methods for assessing costs where this Court makes an order for costs.
[3] Robinson v Blackheart Industries Pty Ltd (In Liq) & Ors (No.3) [2015] FCCA 2542
Rule 21.03 of the FCC Rules departs from this pattern. It provides:
(1) The Court may specify the maximum costs that may be recovered on a party and party basis:
(a) by order at the first court date; and
(b) of its own motion or on the application of a party.
(2) However, an amount specified must not include an amount that a party is ordered to pay because the party:
(a) has failed to comply with, or has sought an extension of time for complying with, an order or with any of these Rules; or
(b) has sought leave to amend a document; or
(c) has otherwise caused another party to incur costs that were not necessary for the economic and efficient progress of the proceeding or hearing of the proceeding.
(3) The Court may vary the maximum costs specified if, in the Court's opinion, there are special reasons and it is in the interests of justice to do so.
Sub rule 21.03(1) of the FCC Rules substantially replicates Or.62A r.1 of Federal Court Rules 1979 (Cth) (1979 FC Rules). That sub rule provided that the Federal Court may, by order made at a directions hearing, “specify the maximum costs that may be recovered on a party and party basis”. A number of cases have accepted that the purpose of that rule, at least when the rule was introduced, was stated in a letter dated 6 November 1991 Black CJ sent to the President of the Law Council of Australia before the rule was introduced.[4] Black CJ said (emphasis added):
At the request of a meeting of the judges of the Court, I am writing to invite your comments about possible options for changes to the costs rules.
There is concern within the Court, reflecting that within the wider community and the legal profession, that the cost of litigation, particularly for persons of ordinary means, places access to the civil courts beyond their reach and thus effectively denies them justice.
A deterrent to the assertion or defence of rights in civil litigation is a fear of the ultimate exposure in terms of the legal costs to which an unsuccessful party may be subjected. One suggestion that has been made proposes a change to the Rules so as to empower a judge, early in proceedings, to make an order fixing a ceiling on the amount of costs recoverable from the unsuccessful party in the litigation. This ceiling could be defined by reference both to party and party costs and by reference to solicitor/client costs. It should be pointed out that this proposal does not involve the Court in regulating the costs recoverable by a solicitor from his or her client but rather, where costs are ordered to be paid on a solicitor/client basis, the maximum that would be recoverable would be the fixed amount.
The fixing of any such a maximum would not preclude recovery over and above that limit where a party had, by its own conduct, caused the successful party to incur additional and unnecessary costs. There would of course be a general provision to allow for the variation of a maximum figure so fixed, but the object of such a rule would be to define a budget so that the management of the case might be tailored according to its economic limits. It is anticipated that such a rule, if introduced, would be applied principally to commercial litigation at the lower end of the scale in terms of complexity and the amount in dispute, although it could be applied in other cases as appropriate.
[4] The text of the letter is set out in the reasons of judgment of Beazley J (as her Honour then was) in Sacks v Permanent Trustee Australia Limited (1993) 45 FCR 509 at page 511
Thus, as stated in Black CJ’s letter, the object of Or.62A r.1 of the 1979 FC Rules was to “define a budget so that the management of the case might be tailored according to its economic limits”. In other words, the purpose of the rule was to enable the Federal Court, where possible, to assess at the outset of proceedings, on a party and party basis, the costs the parties ought reasonably to incur given the nature of the proceedings, the amount or interests at stake, and the issues that were likely to arise; and to specify those costs as the maximum costs each party may recover from the other. The making of an order, where appropriate, would in turn act as an incentive for the parties to conduct their case in a manner that would result in their incurring no more costs, as assessed on a party and party basis, than those specified by the court; and if they did not do so, they would be unable to recover from the other party, even on a party and party basis, any additional costs they may have incurred.
Assuming this was the only object of Or.62A r.1 of the 1979 FC Rules, and remains the only object of r.21.03 of the FCC Rules, a number of principles may be implied from that object. First, the purpose of r.21.03 is not to deny the party or the parties against whom the order is made the ability to recover, on a party and party basis, the costs the party properly incurs; its purpose is to enable the Court, in an appropriate case, to estimate at the beginning of proceedings what the party and party costs should be, given the amount or interests at stake in the proceedings, and the issues that are likely to arise in the proceedings.
Second, the costs the Court may specify, are party and party costs. That is suggested by the words of r.21.03: the Court must “specify the maximum costs that may be recovered on a party and party basis”. It is also suggested by Black CJ’s letter – the “ceiling could be defined by reference both to party and party costs and by reference to solicitor/client costs”. The expression “party and party costs” has been defined to mean costs:[5]
incurred on behalf of the litigant by his solicitor in respect of some step or matter in the litigation which either (1) was necessarily taken or performed for the attainment of justice or the maintaining or defending of the litigant’s rights in the circumstances of the particular case, or, (2) although not necessarily taken or performed for such purposes, would reasonably have been taken or performed for any of those purposes by a solicitor acting at the time when it was taken or performed without extravagance in conformity with the then situation of the case and not in conflict with the statutes and rules, the practice of the Court, and the usages of the legal profession appertaining to such a case.
[5] W & A Gilbey Ltd v Continental Liqueurs Pty Ltd [1964] NSWR 527 at page 534 (Asprey J)
Third, if it is not possible for the Court to make some reasoned assessment of the costs the parties ought reasonably to incur, given the nature of the proceedings, the amount or interests at stake, and the issues that are likely to arise, it would be inappropriate for the Court to make an order under r.21.03 of the FCC Rules.
These three principles, however, are not the principles, or at least the only principles, the Federal Court has applied in relation to Or.62A r.1 of the 1979 FC Rules and the equivalent r.40.51(1) of the Federal Court Rules 2011 (Cth) (FC Rules). Or.62A r.1 of the 1979 FC Rules and r.40.51(1) of the FC Rules have been held to serve a purpose additional to that for which Or.62A r.1 was initially introduced. That purpose, which, to a significant extent, conflicts with the purpose for which Or.62A r.1 of the 1979 FC Rules was introduced, is to minimise the disincentive that the prospects of an adverse costs order would pose to persons who desire to bring proceedings that advance the public interest. The origins of the use of Or.62A r.1 of the 1979 FC Rules for this purpose appears to be the decision of Wilcox J in Woodlands & Anor v Permanent Trustee Company Limited & Ors.[6]
[6] (1995) 58 FCR 139
In Woodlands Wilcox J considered that Or.62A r.1 of the 1979 FC Rules could be used to make an order fixing a maximum amount of costs for which an applicant would be liable to pay by applying the factors that had been considered in “public interest” cases as reasons for departing from the usual order that an unsuccessful party must pay the successful party’s costs. Wilcox J particularly relied on the judgment of Stein J in Oshlack v Richmond River Shire Council.[7] In Oshlack, Stein J, sitting in the Land and Environment Court of New South Wales, departed from the usual order for costs by relying on a numbers of matters. These included the circumstances that the proceeding was “public interest litigation” with the “prime motivation” being the upholding of “the public interest and the rule of law”, noting, however, that those matters, by themselves, were not “enough to constitute special circumstances warranting departure from the “usual rule””; that the applicant was motivated by his desire to ensure obedience to environmental law; that there was a public interest in the outcome of the litigation in that there was a significant number of members of the public who shared the applicant’s stance; the grounds on which the applicant brought the proceedings were arguable; and the proceedings resolved significant issues relating to the interpretation and future administration of the relevant statutory provisions that were in issue in the proceedings.[8] By a majority, the High Court held Stein J made no error by relying on these matters not to order costs against the unsuccessful applicant.[9]
That the factors relevant to determining whether to depart from the usual costs order are relevant to exercising the power under r.23.01 was acknowledged by Bennett J in Corcoran v Virgin Blue Airlines Pty Ltd.[10] After setting out Or.62A r.1 of the 1979 FC Rules, her Honour identified the factors the parties in that case agreed the Court should take into account when exercising the power under Or.62A r.1 of the 1979 FC Rules.[11] Her Honour then discussed the general principle that costs ordinarily follow the event, and that a successful litigant receives costs in the absence of special circumstances justifying some other order;[12] that costs in public interest cases did not justify a global modification of the usual rule that costs follow the event;[13] but there would be no error in determining whether to award costs against an unsuccessful party to take into account “matters such as the absence of personal gain on the part of the applicants, the fact that a significant number of members of the public may be affected and that the basis of the challenge is arguable and raises “significant issues” as to the interpretation and application of statutory provisions”.[14] Her Honour concluded:[15]
The same circumstances are relevant to an order under Order 62A r 1 which, while making provision for the costs of a successful party, departs from the usual order that would otherwise be made.
[7] (1994) 82 LGERA 236
[8] The factors Stein J took into account are set out in Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [20]
[9] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
[10] [2008] FCA 864
[11] [2008] FCA 864 at [6]
[12] [2008] FCA 864 at [8]
[13] [2008] FCA 864 at [9], citing Ruddock v Vadarlis(No 2) (2001) 115 FCR 229 at [13] per Black CJ and French J
[14] [2008] FCA 864 at [10], citing Oshlack v Richmond River Council [1993] HCA 11; (1998) 193 CLR 72 at [20] per Gaudron and Gummow JJ, at [49] per McHugh J
[15] [2008] FCA 864 at [10]
Bennett J’s reasons for decision in Corcoran v Virgin Blue Airlines Pty Ltd illustrates the approach the Federal Court has taken in relation to applications for orders under Or.62A r.1 of the 1979 FC Rules and r.40.51(1) of the FC Rules.[16] Bennett J noted that the power under Or.62A r.1 of the 1979 FC Rules was discretionary and was to be exercised after taking into account a number of factors. The factors her Honour identified were the timing of the application for an order under O.62A r.1; the complexity of the factual or legal issues raised in the proceedings; the amount of damages the applicant seeks to recover and the extent of any other remedies sought; whether the applicant’s claims are arguable and not frivolous or vexatious; the undesirability of forcing the applicant to abandon the proceedings; whether there is a public interest element to the case; the costs that are likely to be incurred; and whether the party opposing the costs order has been uncooperative or has delayed the proceedings; or “any other matters which may go towards establishing that there should be a departure in advance from the usual rules as to quantification of the amount of costs to be payable by the ultimately unsuccessful party”.[17] In King v Virgin Australia Airlines Pty Ltd, Foster J said that these factors provide useful guidance in relation to the exercise of the relevant discretion.[18] As Preston CJ observed, however, these “factors may, in appropriate cases, provide guidance but they should not be elevated to become fixed criteria governing the exercise of the discretionary power to make a maximum costs order”.[19]
[16] [2008] FCA 864
[17] [2008] FCA 864 at [6]
[18] [2014] FCA 36 at [15]
[19] Caroona Coal Action Group Inc v Coal Mines Australia Pty Limited and Minister for Mineral Resources [2009] NSWLEC 165 at [36]. See also Haraksin v Murrays Australia Ltd [2010] FCA 1133 (Nicholas J); King v Jetstar Airways Pty Ltd [2012] FCA 413 (Perram J).
The factors which the Federal Court has considered to be relevant include factors that may result in the Court specifying costs that do not purport to reflect any fair assessment of the costs the parties ought reasonably to incur on a party and party basis given the nature of the proceedings, the amount or interests at stake, and the likely issues. That will likely be the case where the court particularly gives weight to the prospects of an applicant’s having to abandon his or her case if no order is made, and on whether there is a public interest element in the case. That is illustrated by the decision of Nicholas J in Haraksin v Murrays Australia Ltd.[20] His Honour found that the respondent’s likely costs assessed on a party and party basis would be in the range of $50,000 to $75,000 (exclusive of GST),[21] yet his Honour specified $25,000 as the costs that may be recovered by one party from the other on a party and party basis.
[20] [2010] FCA 1133
[21] [2010] FCA 1133 at [21]
Both Ms Hudson and the ABC assume that when determining whether I should make an order under r.21.03 of the FCC Rules I should apply the approach the Federal Court has applied in determining whether an order should be made under Or.62A r.1 of the 1979 FC Rules and r.40.51(1) of the FC Rules. There is, however, a preliminary question to consider. Unlike proceedings in the Federal Court, r.21.10 of the FCC Rules provides that, unless the Court orders otherwise, a party entitled to costs in a proceeding, other than a proceeding to which the Bankruptcy Act 1966 (Cth) applies, is entitled to costs in accordance with Parts 1 and 2 of Schedule 1 to the FCC Rules, and to disbursements properly incurred. Part 1 of Schedule 1 identifies a relatively small number of, but in most cases broadly defined, activities or events that may occur in a proceeding, and assigns an amount to each such activity or event. The assessment of costs in accordance with Part 1 of Schedule 1 is different from a taxation of costs and, for that reason, cannot be described as an assessment of costs on a party and party basis. The question that arises is whether r.21.03 of the FCC Rules empowers the Court to make an order specifying the maximum costs that may be recovered, not only on a party and party basis, but on the basis provided for under Part 1 of Schedule 1 to the FCC Rules. In my opinion, that question is to be answered in the negative.
First, r.21.03 of the FCC Rules expressly applies only to the specification of the costs that are recoverable on a party and party basis. Second, the apparent purpose of Part 1 of Schedule 1 to the FCC Rules is to establish a method for assessing costs that reflect the nature of the usual type of litigation that is to be conducted in this Court, and the amount or interests that are likely to be at stake in such litigation. Further, the method for assessing costs provided by Part 1 of Schedule 1 is one that will enable parties to predict with confidence the likely costs the parties are liable to be ordered to pay should they be ordered to pay the other party’s costs. That is so because, as I have already noted, Part 1 of Schedule 1 identifies a relatively small number of, but in most cases broadly defined, activities or events that occur in a proceeding, and assigns an amount to each activity or event. The single largest variable that affects the amount of costs that may be assessed under Part 1 of Schedule 1 to the FCC Rules is the number of hearing days. These points were made by Barnes FM (as her Honour then was) in Flew v Mirvac Parking Pty Ltd:[22]
While no special provisions were made in relation to costs in discrimination matters in the Rules, Schedule 1 to the Rules limits and prescribes costs so that, unless the Court otherwise orders, an unsuccessful party will not necessarily be exposed to liability for the full party/party costs of the other side. Absent any particular factors, both parties should know when initiating litigation in this jurisdiction that costs are likely to be calculated in accordance with Schedule 1. Hence this factor may be weighed by applicants in determining whether and where to commence a discrimination claim. These provisions assist a prospective litigant to calculate (subject to the litigant’s ability to estimate the time and number of events in potential litigation) the likely extent of any costs order that may be made against the litigant should he or she be unsuccessful.
[22] [2006] FMCA 1818 at [42]
Part 1 of Schedule 1 to the FCC Rules, therefore, is a mechanism for ensuring that costs incurred in a proceeding in this Court are proportional to the amount and interests at stake in the proceeding. Rule 21.03 of the FCC Rules is a separate mechanism for ensuring that costs that are to be assessed by taxation are proportional to the amounts and interests at stake. It may safely be assumed that costs calculated by applying Part 1 of Schedule 1 would be substantially less than the costs that would be assessed on a party and party basis.[23]
[23] See, for example, Piersons Pro-Health Pty Ltd & Ors v Silvex Nominees Pty Ltd & Anor (No.3) [2010] FMCA 250 where costs were assessed by applying Schedule 1 of the FCC Rules at $34,735 when the actual costs of the party in whose favour an order for costs was made were $281,922.60.
Notwithstanding my conclusion that r.21.03 of the FCC Rules only applies to the specifying of costs that may be recovered on a party and party basis, and that it has not been suggested that the costs in this matter ought to be assessed on a party and party basis, I will nevertheless assume, as the parties have assumed, that Ms Hudson’s application should be determined by applying the factors the Federal Court has applied to Or.62A r.1 of the 1979 FC Rules and to r.40.51(1) of the FC Rules.
Elements of causes of action based on contravention of s.24 of the DDA
The starting point is s.24 of the DDA which provides:
It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person’s disability:
(a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or
(b) in the terms or conditions on which the first‑mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or
(c) in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.
There are three broad elements to s.24 of the DDA. First, there must be conduct that answers the description “discriminate against another person on the ground of the other person’s disability” (Discriminating Conduct). Second, the Discriminating Conduct must be engaged in by a person (Supplier) who, whether for payment or not, provides goods or services, or makes available access to facilities. Third, the Discriminating Conduct must manifest itself or be effected in one of three ways: in the Supplier’s refusing to provide to the person with a disability (PWD) goods or services or access to facilities; in the terms or conditions on which the Supplier provides to a PWD goods or services or access to a facility; or in the manner in which the Supplier provides to a PWD goods or services or access to facilities.
The DDA defines four types of Discriminating Conduct. The first is defined in s.5(1):
For the purposes of this Act, a person (the discriminator) [for the purposes of s.24, the Supplier] discriminates against another person (the aggrieved person) [the PWD] 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.
If this definition is applied to s.24 of the DDA, a Supplier will engage in unlawful discrimination under that section if:
a)the Supplier refuses to provide to the PWD goods or services or access to facilities because of the PWD’s disability, but the Supplier would provide the goods or services or access to facilities to a person without a disability in circumstances that are not materially different from those of the PWD;
b)because of the PWD’s disability, the Supplier provides to the PWD goods or services or access to facilities on terms and conditions that are less favourable than the terms and conditions on which the Supplier would provide those goods or services or access to facilities to a person without the disability in circumstances that are not materially different to those of the PWD; or
c)because of the PWD’s disability, the Supplier provides to the PWD goods or services or access to facilities in a manner that is less favourable than the manner in which the Supplier would provide the goods or services or access to facilities to a person without the disability in circumstances that are not materially different to those of the PWD.
The second type of Discriminating Conduct is defined in s.5(2) of the DDA which provides:
For the purposes of this Act, a person (the discriminator) [the Supplier] also discriminates against another person (the aggrieved person) [the PWD] 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.
There are a number of observations that may be made about s.5(2) of the DDA. First, the gist of the Discriminating Conduct the subsection identifies is a decision or proposal by the alleged discriminator not to do something, namely, not to make a “reasonable adjustment”.
Second, although the DDA defines the expression “reasonable adjustment” (which I will consider shortly), the DDA does not define the word “adjustment”. That word, therefore, bears its ordinary meaning. To “adjust” means “to arrange, alter, or modify (a thing) in relation to something else so as to meet a standard, suit a purpose, or achieve a desired result”.[24] “Adjustments”, therefore, may mean steps that may be taken to arrange or alter or modify a thing in a particular way or for a particular purpose; or it may mean the arrangements, alterations, or modifications that have been effected by the acts that constitute the adjustment. As used in subsection 5(2) of the DDA, “adjustments” may be taken to mean the arrangements, alterations, or modifications the alleged discriminator has decided not to make or has proposed not to make to a thing.
[24] Oxford English Dictionary online edition
Third, s.5(2) of the DDA does not identify the thing to which the alleged discriminator has decided not to make adjustments. The identity of the thing, however, will depend on the context in which the Discriminating Conduct defined in s.5(2) is applied. In the context of s.24 of the DDA, the things to which the Supplier must have decided not to have made an adjustment are the terms or conditions on which the Supplier provides to the PWD goods or services or access to facilities, or the manner in which the Supplier provides to the PWD goods or services or access to facilities.
Fourth, the adjustments, namely, the arrangements, alterations or modifications the alleged discriminator has decided not to make or has proposed not to make, must be adjustments that, if made, would have been made “for” the PWD.
Fifth, s.5(2)(b) of the DDA provides that the adjustments must be of a character that, if not made, have or would have a particular effect. The required effect is that the PWD, because of his or her disability, is treated less favourably than a person without the disability would be treated in circumstances that are not materially different. Paragraph (b) of s.5(2) of the DDA, therefore, contemplates that a PWD is “treated less favourably” because of his or her disability; but an adjustment is available which, if the discriminator makes it, will eliminate the PWD’s being treated less favourably, or, perhaps, will reduce the extent to which the PWD will be treated less favourably, because of the PWD’s disability.
The expression “treated less favourably” as it appears in s.5(2)(b) of the DDA requires additional comment. It does not have the same meaning as the expression in s.5(1) of the DDA. In s.5(1), “treated less favourably” means the less favourable treatment the PWD experiences when the discriminator, because the PWD has a disability, treats the PWD differently than he or she would treat a person who does not have the disability in circumstances that are not materially different. In s.5(2), on the other hand, “treated less favourably” means the disadvantages the PWD experiences because of his or her disability, not because the discriminator has treated the PWD differently than he or she would treat a person without a disability in circumstances that are not materially different. Subsection 5(2) defines as discrimination a person’s treating a PWD no differently than he or she would treat a person who does not have a disability in circumstances where an adjustment could reasonably be made that would overcome or perhaps ameliorate the disadvantages the PWD has because of the disability when compared with persons who do not have the disability in circumstances not materially different.
Sixth, the adjustment must be a “reasonable adjustment”. Sub section 4(1) of the DDA provides that an “adjustment to be made by a person is a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship on the person”. This should be read with s.11 of the DDA. Subsection 11(1) provides that when determining whether a hardship that would be imposed on a person would be an unjustifiable hardship, all relevant circumstances of the particular case must be taken into account, including, the matters identified in s.11(1). In addition, s.11(2) provides that, for the purposes of the DDA, the burden of proving that something would impose unjustifiable hardship lies on the person claiming unjustifiable hardship. These provisions imply, therefore, that once an aggrieved person alleges and establishes that an alleged discriminator ought to make or ought to have made an adjustment, the alleged discriminator bears the onus of proving that the making of the adjustment would impose an unjustifiable hardship and, unless the alleged discriminator discharges the onus, the alleged discriminator will have engaged in unlawful discrimination by not making the adjustment, or in proposing not to make the adjustment.
Thus, under s.5(2) of the DDA, an alleged discriminator will discriminate against a person who has a disability if the following occurs:
a)the PWD, because of his or her disability, is or would be treated less favourably than a person without the disability is or would be treated; that is, the PWD, because of his or her disability, is or would be disadvantaged by the discriminator’s treating the PWD in the same way the discriminator would treat a person without the disability in circumstances that are not materially different;
b)an adjustment is available to be made by the alleged discriminator which, if not made, will have the effect of the PWD’s continuing to be treated less favourably, in the sense referred to in (a), than a person without the disability would be treated in circumstances that are not materially different;
c)the alleged discriminator does not make the adjustment; and
d)the alleged discriminator cannot prove that the making of the adjustment would impose unjustifiable hardship on the alleged discriminator.
How does the notion of discrimination defined in s.5(2) of the DDA apply to s.24 of the DDA? It is difficult to see how it can apply to s.24(a) of the DDA. That paragraph specifies one act of discrimination, namely, the failure to supply a service or a good, or to provide access to a facility. Sub section 5(2), however, is capable of otherwise applying to s.24 of the DDA. Thus, a supplier of goods or services will engage in unlawful discrimination, contrary to s.24(b) of the DDA, if:
a)a supplier provides goods or services or access to a facility to a PWD on the same terms and conditions on which the supplier would provide the goods or services or access to a facility to a person without the disability in circumstances not materially different;
b)because of his or her disability, the PWD is treated less favourably than a person without the disability would be treated in circumstances not materially different; that is, because of his or her disability, the terms and conditions operate less favourably on the PWD than they would operate on the person without the disability to whom the supplier would provide the goods or services or access to a facility in circumstances not materially different;
c)there is an adjustment available to be made by the supplier for the PWD to the terms and conditions on which the supplier provides the goods or services or access to facilities which, if not made, will have the effect of the PWD’s continuing to be treated less favourably in the sense referred to in (b);
d)the supplier does not make, or proposes not to make the adjustment; and
e)the supplier cannot establish that the making of the adjustment will impose an unjustifiable hardship on the supplier.
Likewise, a supplier of goods or services will engage in unlawful discrimination, contrary to s.24(c) of the DDA, if:
a)a supplier provides goods or services or access to a facility to a PWD in the same manner in which the supplier would provide the goods or services or access to a facility to a person without a disability in circumstances not materially different;
b)because of his or her disability, the PWD is treated less favourably than a person without the disability would be treated in circumstances not materially different; that is, because of the PWD’s disability, the manner in which the supplier provides the goods or services or access to facilities operates less favourably on the PWD than it would operate on the person without a disability to whom the supplier would provide the goods or services or access to a facility in circumstances not materially different;
c)there is an adjustment available to be made by the supplier for the PWD in relation to the manner in which the supplier provides the goods or services or access to facilities which, if not made, will have the effect of the PWD’s continuing to be treated less favourably in the sense referred to in (b);
d)the supplier does not make, or proposes not to make the adjustment; and
e)the supplier cannot establish that the making of the adjustment will impose an unjustifiable hardship on the supplier.
The third form of discrimination is defined in s.6(1) of the DDA which provides as follows:
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.
Sub section 6(3) of the DDA provides that s.6(1) does not apply if the requirement or condition is reasonable, having regard to the circumstances of the case. Sub section 6(4) provides that the burden of proving that the requirement or condition is reasonable lies on the person who requires or proposes to require the person with the disability to comply with the requirement or condition.
If s.6(1) is applied to s.24 of the DDA, a supplier will engage in unlawful discrimination against the PWD under that sub section if:
a)the supplier provides goods or services, or makes facilities available to the PWD subject to the PWD agreeing to comply with one or more conditions;
b)because of the disability, the PWD does not or would not comply, or is not able or would not be able to comply, with the requirement or condition;
c)the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability; and
d)the supplier is unable to prove that the condition is reasonable.
The fourth form of discrimination is defined in s.6(2) of the DDA which provides:
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.
As with s.6(1) of the DDA, s.6(3) provides that s.6(2) of the DDA does not apply if the requirement or condition is reasonable, having regard to the circumstances of the case; and s.6(4) of the DDA provides that the burden of proving that the requirement or condition is reasonable lies on the person who requires or proposes to require the person with the disability to comply with the requirement or condition.
If s.6(2) of the DDA is applied to s.24 of the DDA, a supplier will engage in unlawful discrimination against a PWD under that section if:
a)the supplier provides goods or services, or makes facilities available to the PWD subject to the PWD agreeing to comply with one or more conditions;
b)because of the disability, the PWD would comply, or would be able to comply, with the conditions only if the supplier made reasonable adjustments for the PWD, but the supplier does not do so or proposes not to do so; and;
c)the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability; and
d)the supplier is unable to prove that the condition is reasonable having regard to the circumstances of the case.
Having identified the elements of the various forms of discrimination defined in the DDA, and how they apply in the context of s.24 of the DDA, I now pass to Ms Hudson’s claims, as made in her points of claim, and to the ABC’s response to those claims, as set out in its points of defence.
The points of claim and defence
In her points of claim Ms Hudson alleges she has central retinal dystrophy and, for that reason, is vision impaired;[25] pursuant to s.6 of the Australian Broadcasting Corporation Act 1983 (Cth), the functions of the ABC include, among other things, the broadcasting of programs;[26] the ABC provides free-to-air television and radio to the Australian public who have access to a television, radio or computer, which includes Ms Hudson;[27] during 5 August to 4 November 2012 the ABC conducted a trial (Trial) in which it broadcast television programs for an average of two hours a day during a broadcast window of 5.00 pm to midnight with audio description where there was additional audio commentary of what was happening on screen on free-to-air ABC television;[28] during the Trial Ms Hudson was able to comprehend the ABC’s programs with the audio description sufficiently to be informed or entertained;[29] and after the Trial Ms Hudson was unable, because of her disability, to comprehend the ABC’s programs sufficiently to be informed or entertained because the ABC no longer provided audio description.[30]
[25] Points of claim, [8]
[26] Points of claim, [10]
[27] Points of claim, [11]
[28] Points of claim, [12]
[29] Points of claim, [13]
[30] Points of claim, [15]
On the basis of these allegations, Ms Hudson alleges the ABC has engaged in four forms of unlawful discrimination. The first two are acts of direct discrimination, where Ms Hudson alleges as follows:
a)the broadcast by the ABC during the Trial period of television programs with audio described content constituted “reasonable adjustments” within the meaning of s.5(2) of the DDA;[31]
b)because the ABC ceased to provide television programs with audio description, the ABC:
i)treated Ms Hudson less favourably on the ground of her disability than the ABC treated or would have treated a person without Ms Hudson’s disability in circumstances that are not materially different;[32] and
ii)failed to make reasonable adjustments for Ms Hudson which had, or would have, the effect of Ms Hudson, because of her disability, being treated less favourably than a person without the disability in circumstances that are not materially different.[33]
[31] Points of claim, [18]
[32] Points of claim, [19(a)]
[33] Points of claim, [19(b)]
The points of claim contain the following allegations in relation to the third form of discrimination alleged against the ABC:
a)after the Trial the ABC provided to Ms Hudson services in the form of television programs;[34]
b)the ABC required Ms Hudson to comply with a requirement or condition in relation to the supply of those services, that requirement or condition being the ability to see the program to comprehend the ABC’s television programs;[35]
c)because of her disability, Ms Hudson is not able to comply with the requirement referred to in (b);[36]
d)the requirement referred to in (b) has the effect of disadvantaging persons with Ms Hudson’s disability;[37]
e)the requirement referred to in (b) is not reasonable having regard to the circumstances of the case.[38]
[34] Points of claim, [22(a)]
[35] Points of claim, [22(b)]
[36] Points of claim, [23]
[37] Points of claim, [24]
[38] Points of claim, [25]
As to the fourth form of discrimination, the points of claim allege:
a)the ABC required Ms Hudson to comply with a requirement or condition which Ms Hudson was only able to comply with if the ABC made reasonable adjustments, those adjustments being broadcasting the television programs with audio described content;[39]
b)the ABC did not make the reasonable adjustments;[40] and
c)the ABC’s failure to make the reasonable adjustments has the effect of disadvantaging persons with Ms Hudson’s disability.[41]
[39] Points of claim, [28]
[40] Points of claim, [29]
[41] Points of claim, [30]
In its points of defence, the ABC:
a)admits Ms Hudson suffers from central retinal dystrophy, and has around 1% vision and, for these reasons, has a “disability” within the meaning of s.4(1) of the DDA;[42]
[42] Points of defence, [7]
b)denies it provides free-to-air television and radio to the Australian public who have access to a television, radio or computer, which includes Ms Hudson; instead, the ABC alleges:[43]
[43] Points of defence, [9]
i)at the material time (5 November 2012 to 10 July 2013[44]), the ABC delivered television programs to persons having equipment appropriate for receiving those programs, whether the delivery used the radio frequency spectrum, satellite or any other broadcasting means or a combination of those means in Australia and overseas (television broadcasting services);
[44] Points of defence, [6(a)]
ii)an intrinsic feature of a television broadcasting service is that it is created for a visual medium and the content of the television program is intended to be seen;
iii)at the material time (from 5 November 2012 to 10 July 2013) the television broadcasting services were free-to-air in Australia, and were available on ABC1, ABC2, ABC3, and ABC24; and
iv)does not know whether Ms Hudson received the television broadcasting services between 5 November 2012 and 10 July 2013.
c)admits that from 5 August 2012 to 4 November 2012 the ABC conducted a technical trial by providing an ADS for some television programs broadcast on ABC1;[45] the ABC states, however, that:
i)the television programs were limited to the ABC’s free-to-air digital terrestrial transmission platform;
ii)the ADS was delivered by a separate and additional sound track that was broadcast separately and received alongside the main audio and vision track for the program;
iii)the ADS was a closed service; that is, a separate audio track was broadcast that depended on the receiver having an appropriately configured set top box or integrated digital television for decoding and playing the separate audio track;
iv)the ADS was limited to specific television programs broadcast on ABC1 between 5pm and midnight, on average two hours a day;
v)the aim of the trial was to test the technical aspects and workflows of providing an ADS and to provide a greater understanding of the issues associated with the public’s access to and use of an ADS; and;
vi)the trial was commissioned and funded by the Minister for Broadband, Communications and the Digital Economy in 2012.
[45] Points of defence, [10(b)]
Although to this point the ABC appears to put in issue a number of matters, my impression is that the points of defence do not in substance differ from the factual allegations made in the points of claim. Instead, the points of defence state with greater precision than is stated in the points of claim the nature of the television broadcasting services the ABC supplied during the relevant period and the ADS the ABC supplied during the Trial. The substantial controversy relates to the allegations of discrimination. In that regard, the ABC positively alleges:
a)the provision of ADS for a minimum of 14 hours per week, on one or more channels, and for unidentified television programs was not a “reasonable adjustment” within the meaning of s.4(1) of the DDA;[46]
b)for the purpose of s.5(2) of the DDA, an adjustment is one made for the applicant to use the television broadcasting service, not to change that service;[47]
c)for the purposes of s.5(2) of the DDA, an adjustment is not the provision of a different, new, additional or adjunct service for Ms Hudson;[48]
d)during the material time, Ms Hudson did not identify or seek an adjustment relevant to her;[49] and
e)assuming the ADS the ABC provided during the Trial Period was a “reasonable adjustment”, the adjustment would have imposed an unjustifiable hardship on the ABC during the material time.
[46] Points of defence, [17(a)]
[47] Points of defence, [17(b)]
[48] Points of defence, [17(c)]
[49] Points of defence, [17(d)]
This part of the ABC’s points of defence does not quite reflect the relevant statutory provisions that Ms Hudson’s claims engage. An “adjustment” within the meaning of s.5(2) and s.6(2) of the DDA is a “reasonable adjustment” within the meaning of s.4(1) unless the alleged discriminator proves that making the adjustment would impose an unjustifiable hardship on the alleged discriminator. Thus, I will read this part of the ABC’s points of defence as alleging that the ADS did not constitute an adjustment to the television broadcasting services the ABC provided because the ADS was a different, new, additional or adjunct service to the television broadcasting services; but, if the ADS was an adjustment to the television broadcasting services, the making of the adjustment would impose an unjustifiable hardship on the ABC, and, therefore, would not be a reasonable adjustment.
The matters on which the ABC relies for alleging that its making the adjustment to the television broadcasting services by providing an ADS would impose an unjustifiable hardship include the following:[50]
[50] Points of defence, [17(e)]
a)the ADS was not intended to continue beyond the Trial Period;
b)during the material time, the ABC was assessing the Trial which it was required to do before the ABC could consider making some form of ADS available at a future time;
c)in December 2012 the ABC provided a report on the Trial to the Minister for Broadband, Communications and the Digital Economy which identified a number of significant logistical and technical impediments for the ABC providing an ADS of the kind provided during the Trial;
d)during the material time, the ABC’s internal broadcast systems were not currently configured to provide a permanent ADS because the internal broadcast systems would require an upgrade so that digital receivers would be able to indicate to viewers when an ADS was available for a program;
e)during the material time, the television program delivery times would have created a significant impact on the ability to make an audio description commentary script for certain programs having regard to the time required for an audio description commentary script to be developed, recorded, and married to the content, and the impact on the ABC’s program schedules, which had been and continue to be planned several weeks in advance of broadcast;
f)during the material time, there was significant testing and configuration amendments to that which operated during the Trial that would need to be implemented before the ABC could use audio description commentary with its broadcasting services;
g)during the material time, there was no active market for audio commentary equipment in Australia resulting in the absence of vendors with knowledge of the impact on their products and the limited availability of equipment;
h)during the material time, the provision of audio description commentary would have caused a significant burden on the ABC’s spectrum capacity and data bandwidth;
i)during the material time, the ABC had to consider the longer term implications for and impact on new platforms and forms of broadcasting;
j)during the material time, the ABC had to consider further complications that might arise from the fact that ABC digital TV services are not limited to terrestrial broadcasting; the services can also be delivered through other means, such as cable TV systems;
k)during the material time, the ABC considered the detrimental impact on viewers who did not seek or wish for audio description commentary to be provided; and
l)during the material time, the Commonwealth had not allocated any further funding, and there was no capacity within the existing funding for the ABC to have provided an ADS of the kind it had provided during the Trial.
The ABC also states in its points of defence that s.5(2) of the DDA does not stand alone or have any operative effect in its own right,[51] that Ms Hudson, in her points of claim, does not make any claim, or identify how s.5(2) of the DDA applies to s.24 of the DDA[52], and that the claim based only on s.5(2) standing alone is misconceived.[53]
[51] Points of defence, [20(b)]
[52] Points of defence, [20(c)]
[53] Points of defence, [20(d)]
The ABC also denies it had engaged in indirect discrimination. The ABC:
a)states that, for the purposes of s.6(1) of the DDA the requirement or condition must be something over and above that which is necessarily inherent in the television broadcasting service;[54]
b)denies it imposed on Ms Hudson a requirement or condition to the effect that she must be able to watch the television programs to comprehend them;[55]
c)during the material time, the ABC did not offer its television broadcasting services to the Applicant on any terms or conditions for the purpose of s.24(b) of the DDA;[56]
d)during the material time, there was nothing in the manner in which the television broadcasting services were provided to Ms Hudson for the purpose of s.24(c) of the DDA that indicated discrimination.
[54] Points of defence, [23(a)]
[55] Points of defence, [23]
[56] Points of defence, [27(b)]
Issues
A number of issues arise on the points of claim and defence. The first is the period over which the ABC’s conduct is to be assessed. The ABC submits the relevant period is the “material time”, namely, from 5 November 2012 to 10 July 2013.[57] In her points of claim, on the other hand, Ms Hudson claims the ABC discriminated against her “between 5 November 2012 and the end of these proceedings”.[58]
[57] Points of defence, [6(a)]
[58] Points of claim, [20(c)], [27(c)]
The second issue, or perhaps set of issues, relates to the description of the relevant service in relation to which Ms Hudson alleges the ABC failed to make reasonable adjustments, or in relation to the provision of which the ABC required Ms Hudson to comply with a requirement or condition (relevant service). The points of claim refer to the broadcast of television programs,[59] but describe the services in connection with which the television programs were broadcast as “services relating to entertainment, recreation or refreshment”, or “services relating to telecommunications”.[60] The ABC, on the other hand, describes the relevant service as “television broadcasting services”, which it defines as the delivery of “television programs to persons having equipment appropriate for receiving those programs, whether the delivery used the radio frequency spectrum, satellite or any other broadcasting means or a combination of those means in Australia and overseas”.[61]
[59] Points of claim, [12], [18]
[60] Points of claim, [16], [17]
[61] Points of defence, [9(a)]
The third issue is whether the ABC provided, or offered to provide the relevant service to Ms Hudson on any terms or conditions, or whether the ABC provided, or offered to provide to Ms Hudson the relevant service in any particular manner. The ABC alleges it did not offer, or offer to provide the relevant service to Ms Hudson on any terms or conditions, and it did not provide, or offer to provide to Ms Hudson the relevant service in any manner. The significance of this issue is that, if the ABC is correct, there was no subject matter in relation to which the ABC could have discriminated against Ms Hudson.
The fourth issue is whether the ADS could properly be characterised as an adjustment to the relevant service. In its points of defence, the ABC appears to allege that the ADS cannot properly be characterised as an adjustment to the relevant service because the ADS constituted a “different, new, additional or adjunct service” of the ABC.[62]
[62] Points of defence, [17(c)]
The fifth issue is whether, during the material time, Ms Hudson sought to identify to the ABC, or seek from the ABC an adjustment to the relevant service. The ABC states Ms Hudson failed to identify, or seek, such adjustment during the material time. That statement appears to be premised on the view that an essential element of a cause of action based on a contravention of s.24 of the DDA where it is alleged s.5(2) of the DDA applies is the PWD’s having brought to the mind of the alleged discriminator the existence of an adjustment that was available to be made for the PWD.
The sixth issue is whether the points of claim sufficiently identify a connection between the matters Ms Hudson alleges constitutes discrimination within the meanings of s.5 and s.6 of the DDA, and the manner in which Ms Hudson alleges the ABC breached s.24 of the DDA.
The seventh issue is whether the ABC imposed on Ms Hudson a requirement or condition to the effect that she must be able to watch the television programs to comprehend them.
The final issue arises if the following matters are assumed to be true, contrary to what the ABC contends:
a)the ADS can properly be characterised as an adjustment to the relevant service;
b)during the material time the ABC has offered the relevant service to Ms Hudson on particular terms and conditions, or has made the relevant service available to Ms Hudson in some manner;
c)it is not relevant to whether the ABC has contravened s.24 of the DDA that Ms Hudson did not, during the material time, identify, or seek an adjustment from the ABC to the relevant service; and
d)Ms Hudson has sufficiently articulated the respects in which the ABC has engaged in discrimination within the meaning of s.5 and s.6 of the DDA.
Assuming these matters are true, the issue is whether the ABC would have been subjected to unjustifiable hardship if it were to have made the adjustment to the relevant service Ms Hudson alleges the ABC should have made, having regard to the matters the ABC has identified in its points of defence which I have identified earlier in these reasons.
Factors
Having identified the issues that arise on the points of claim and points of defence, I will now consider the factors I have earlier identified as relevant to determining whether I should make an order under r.21.03 of the FCC Rules.
Complexity
The complexity of a matter is relevant to the exercise of the power under r.21.03 of the FCC Rules in this way: the more complex a matter, the more likely it will be difficult to accurately assess the proportionate party and party costs that the parties ought reasonably expend, having regard to the nature of the proceedings, the amount at stake, and the interests involved. That would be a factor against making an order. On the other hand, the complexity would act as a disincentive for an applicant to mount proceedings with a public interest element. That would be a factor in favour of making an order under r.21.03 of the FCC Rules.
Counsel for Ms Hudson submits the proceedings are not factually complex.[63] Counsel for the ABC, on the other hand, submits that Ms Hudson’s claim raises complex issues of fact and of law.[64] Counsel submits this complexity arises from a number of matters. One is the manner in which Ms Hudson has pleaded her case. Here, counsel submits Ms Hudson’s claims, as stated in her points of claim:
a)go beyond the complaint Ms Hudson made to the Australian Human Rights Commission because, in her application before the Court, the period during which she alleges the ABC engaged in the alleged discrimination extends far beyond the period over which, in her complaint to the Commission, Ms Hudson claimed the ABC had engaged in discriminatory conduct;[65]
b)Ms Hudson does not articulate the connection between Ms Hudson’s allegations that the ABC have discriminated against her within the meaning of s.5 and s.6 of the DDA, and the ABC’s having contravened s.24 of the DDA;[66] and
c)Ms Hudson alleges different forms of discrimination arising out of the same facts without articulating the relationship between the different forms of discrimination, and why it is necessary for Ms Hudson to rely on all of these forms of discrimination.[67]
[63] Applicant’s Outline Submissions, [16]
[64] Outline of the Respondent’s Submissions, [12]
[65] Outline of the Respondent’s Submissions,[17]-[23]
[66] Outline of the Respondent’s Submissions, [24]-[29]
[67] Outline of the Respondent’s Submissions, [32]
Counsel for the ABC submits that the first of these deficiencies render it likely the ABC will apply to strike out those parts of the points of claim that rely on the ABC’s acts or omissions after 10 July 2013. Counsel also submits that complexity arises from the subject matter of Ms Hudson’s claim, the novelty of the issues to which the claim gives rise, and the relief Ms Hudson seeks.
When considering the complexity of Ms Hudson’s claim, it would be useful to distinguish between, on the one hand, those elements of the claim Ms Hudson bears the burden of proving (prima facie facts) and, on the other hand, the matters the ABC bears the burden of proving (justification facts), assuming Ms Hudson proves the prima facie facts.
On the face of the points of claim and the points of defence, there are three prima facie facts or sets of facts Ms Hudson must prove. The first is the relevant service. As I have noted, there are issues about the description of the relevant service. I do not expect, however, there will be any factual contest about the means by which the ABC broadcasts television programs, and the equipment that persons need to have in order to receive the broadcasts. The second prima facie fact is the ADS. That also should not give rise to any significant factual dispute. The ADS is described in the report titled “Audio Description Trial on ABC Television” the ABC prepared and submitted to the Minister for Broadband, Communications and the Digital Economy in December 2012.[68] The third prima facie fact, however, is different; it is a set of facts that are relevant to determining whether the ADS is an “adjustment” to the relevant service. The contest here is likely to be whether the ADS, when compared with the relevant service, is a “different, new, additional or adjunct service”, as the ABC contends. I expect the resolution of that contest will require expert evidence that identifies with some precision the technical features of the ADS and the relevant service, and the manner in which the ADS can be concurrently delivered with the relevant service. I am of the opinion, therefore, that proof of the third of the prima facie facts is likely to involve some complexity, although it is not possible at this stage to assess the extent of the complexity.
[68] Affidavit of R I Simpson, annexure “RS2”, page 15
I then turn to the justification facts. It is apparent from the points of defence that the ABC will be relying on a relatively large number of matters to prove unjustifiable hardship if the ABC were required to make the adjustment Ms Hudson claims the ABC should have made. According to Mr Simpson, who is the ABC’s Director of Legal and Business Affairs, the ABC expects to give evidence that explains in detail the reasons the ADS trial failed. That would include evidence about channel availability, the impact on programming and ABC viewers, the availability of appropriately-skilled technicians to provide the ADS with the relevant service, the cost of providing the ADS, the unavailability of Commonwealth funding, and the consideration of alternative options.[69] On their face, these matters suggest a substantial degree of complexity.
[69] Affidavit of R I Simpson, [21]
I then turn to the complexity said to arise from the manner in which Ms Hudson has framed her claim. Given that the ABC has indicated it proposes to apply for an order or orders in relation to Ms Hudson’s application, it would be inappropriate for me to say much about the merits of the ABC’s complaints. All that needs to be said is that the ABC’s complaints do not appear to be frivolous, and the possibility that the ABC will make an application in relation to its complaints is a matter that will add to the complexity of the proceedings, and is a complexity which it is relevant for me to take into account when considering whether to make an order under r.21.03 of the FCC Rules.
A final matter that indicates Ms Hudson’s claims are complex is the costs the parties anticipate each will incur if the matter is litigated to judgment. Ms Goodstone, the principal solicitor of the Public Interest Advocacy Centre Limited (PIAC), and the solicitor for Ms Hudson, estimates that “PIAC’s costs in this matter will be at least $150,000.00, and disbursements will be at least $10,000.00”.[70] Mr Simpson, on the other hand, estimates that the ABC’s costs would be in the range of between $168,000 and $233,000.[71] This magnitude of expected legal costs suggests litigation of some complexity.
[70] Affidavit of A Goodstone, [15]
[71] Affidavit of R I Simpson, [36]
Amount of damages Ms Hudson seeks
Whether or not an applicant claims damages, and the amount of damages the person claims, are relevant in two ways to the exercise of the power conferred by r.21.03 of the FCC Rules. The first is that the size of the damages claimed serves as a point by reference to which the proportionality of costs may be measured: all other things being equal, at least in a large number of cases, the greater the amount of damages that are claimed, the greater in absolute terms will be the amount of legal costs that could reasonably be regarded to be proportional. Second, an applicant’s not claiming damages may indicate the applicant is bringing the proceedings for the public interest.
Ms Hudson does not seek damages. That does not by itself, however, point to the conclusion that the proportional costs should be a small amount in absolute terms. What also must be considered is the relief Ms Hudson seeks, and the cost of that relief to the ABC, should Ms Hudson succeed. One of the remedies Ms Hudson seeks is an order that the ABC “broadcast television programs on free-to-air television for a minimum of 14 hours with audio described content on one or more of the ABC’s free to air television channels each week”.[72] There is evidence that suggests that this remedy, if ordered, will impose significant costs on the ABC. This points to proportionate costs being large in absolute terms. If it is otherwise appropriate to make an order under r.21.03 of the FCC Rules, therefore, the likely large amount in absolute terms of the proportionate costs is a factor that points to the Court specifying a large amount as the maximum costs that may be recovered on a party and party basis.
[72] Application, Part A, [4]
That Ms Hudson does not seek damages indicates she is bringing the action not only for her benefit but for what may be assumed to be a substantial number of people who share the same disability as Ms Hudson. That points to the Court making an order under r.21.03 of the FCC Rules.
Strength of case
Although the ABC contends there are aspects of the manner in which Ms Hudson has framed her claim that may warrant an application to strike out, the ABC does not contend that the proceedings Ms Hudson has brought include claims that are frivolous or vexatious. That points to making an order under r.21.03 of the FCC Rules.
Public interest element
There is a large element of public interest in Ms Hudson’s claim. It may be assumed that the availability of ADS would be of benefit, not only to Ms Hudson, but to many persons who are vision-impaired; that a substantial number of members of the vision-impaired community would agree with the stance Ms Hudson is taking in these proceedings; and that the determination of the application is likely to clarify a number of aspects of the operation of the DDA which may have consequences beyond the issues that Ms Hudson raises. These matters point to an order being made under r.21.03 of the FCC Rules.
Whether Ms Hudson will discontinue proceedings if order not made
Ms Hudson has deposed that she has received indemnities totalling $15,000 in relation to any adverse costs order that may be made against her.[73] Ms Hudson has also deposed:[74]
I consider that if I were unsuccessful in the hearing of this proceeding and I were ordered to pay the legal costs of the Respondent, I could personally not contribute to those costs at all. Therefore if my maximum costs application to the Court is unsuccessful, I may not be in a position to proceed with my case. I would like to continue the litigation whatever happens, but I would need to consider the financial implications and risks to me very carefully if the court did not grant me the cost cap.
[73] Affidavit of S M Hudson, [50], [51]
[74] Affidavit of S M Hudson, [52]
Ms Hudson does not say she will necessarily discontinue the proceedings if the Court does not make an order limiting to $15,000 the costs that may be recovered against her on a party and party basis, should she not succeed in her claims. I find, however, that there is a substantial prospect that Ms Hudson will discontinue if no order is made under r.21.03 of the FCC Rules. The parties’ estimates of the likely costs would cause even the well-heeled litigant to hesitate to commit to litigation that will expose him or her to costs that, at least on a party and party basis, may exceed $150,000. The probability of Ms Hudson discontinuing her claim, however, is likely to lessen to the extent an order is made specifying an amount that is less than the amount that would be assessed on a party and party basis.
Ms Hudson’s evidence, therefore, is a factor in favour of the Court making an order under r.21.03 of the FCC Rules.
Costs likely to be incurred
I have already referred to the parties’ estimates of the likely costs of the proceedings. The ABC estimates its costs will be in the range of $168,000 to $233,000 (exclusive of GST). It is reasonable to assume that the ABC’s costs assessed on a party and party basis will be 75% of this range, namely, between $126,000 and $174,750. On the limited material before me, this estimate of the ABC’s likely costs assessed on a party and party basis appears reasonable.
The magnitude of the estimated costs point in favour of the Court not specifying $15,000 as the maximum costs because, to specify the costs in that amount, will inflict substantial prejudice to the ABC, should it succeed in its defence. On the other, the magnitude of the expected party and party costs is a factor for making some order under r.21.03 of the FCC Rules.
Other matters
The other matters mentioned by Bennett J in Corcoran – the timing of Ms Hudson’s application for an order under r.21.03 of the FCC Rules, and the manner in which Ms Hudson has conducted the proceedings – do not point against the making of an order.
Overall assessment
There are strong grounds for and against making an order under r.21.03 of the FCC Rules. The grounds in favour of making an order are the public interest aspects of the claim Ms Hudson makes in the proceedings; the complexity of the proceedings and the consequent large amount of the ABC’s party and party costs for which Ms Hudson may become liable to pay, if she were to fail in the proceedings; and the substantial probability that Ms Hudson will not continue with the proceeding if the order she seeks is not made. On the other hand, some of the grounds in favour of making an order also operate against making an order. These are the complexity of the factual and legal issues that are likely to arise in the proceedings, the consequent high legal costs the ABC is likely to incur in defending Ms Hudson’s claims, and the prejudice the ABC will suffer if it were to succeed and yet not be able to be indemnified for all but a small proportion of the legal costs it will have incurred.
In the circumstances of this case, the conflicting considerations are capable of being resolved to some extent by my making an order that sets the maximum amount of costs that reflects an estimate of the costs the ABC will be able to recover if it succeeds on the assumption that the costs will be assessed by applying Part 1 of Schedule 1 to the FCC Rules. Counsel for the ABC submitted that if I were minded to make an order under r.21.03 of the FCC Rules, an amount calculated by applying Part 1 of Schedule 1 should be the amount I should specify. Counsel submitted that, assuming a six-day hearing, that amount would be in the order of $65,000. [75]
[75] T28.40-T29.5
On my calculations, however, the costs of a six day hearing by applying Part 1 of Schedule 1 would not be in the order of $65,000; they would be in the order of $38,998 calculated as follows:
Item 1
Initiating or opposing an application up to the completion of the first court date
(a) $2,735; and
(b) $278 (Item 13(a))
Item 7
Preparation for final hearing – 2 day matter
$9,241
Item 8
Preparation for final hearing – each additional hearing day after the second hearing day ($1,944 x 4)
$7,776
Item 9
Final hearing costs for attendance of solicitor at hearing to take judgment and explain orders
(a)$278
(b) $278 (Item 13(a))
Item 13
Daily hearing fee – 6 days ($2,048 x 6)
$12,288
Item 12
Advocacy loading – 50% of the daily hearing fees (50% of $12,288)
$6,114
$38,988
In these circumstances, I propose to specify $40,000 as the maximum amount of costs the parties will be able to recover on a party and party basis. On the one hand, should Ms Hudson decide to continue with the proceedings, and the ABC applies and obtains an order that its costs be assessed on a party and party basis, Ms Hudson’s liability will be limited to $40,000. Given that I have found that party and party costs could well exceed $120,000, capping Ms Hudson’s liability to $40,000 would significantly reduce the disincentive Ms Hudson would otherwise face in continuing with the proceeding. On the other hand, while it is likely the ABC will be substantially out of pocket, it would still be entitled to recover a not insignificant amount of money, should it succeed and obtain an order that its costs be assessed on a party and party basis.
Another factor which, in my opinion, is not irrelevant, is that the $40,000 represents a realistic assessment of the costs the ABC may be able to recover, assuming there will be a six-day hearing and it succeeds. That is so because there would be a substantial possibility that any order for costs that may be made in favour of the ABC would be assessed by the application of Part 1 of Schedule 1 to the FCC Rules. That possibility would remain even if I were to make an order under r.21.03 of the FCC Rules specifying $15,000 as the maximum amount of costs that a party could recover on a party and party basis. As I have already noted, Part 1 of Schedule 1 to the FCC Rules was adopted as a method for assessing costs that reflects the nature of the usual type of litigation that is to be conducted in this Court, and the amounts or interests that are likely to be at stake in such litigation; and, as I have already found, r.21.03 of the FCC Rules does not apply to costs that are to be assessed by applying Part 1 of Schedule 1 to the FCC Rules.
I propose, therefore, to make an order pursuant to r.21.03 of the FCC Rules that the maximum costs that may be recovered in this proceeding by one party from the other party on a party and party basis is $40,000. I will make an order in this form because an order that is made under r.21.03 applies equally to all parties to the proceeding.[76] There are a number of matters, however, the parties should note.
[76] Hanish v Strive Pty Ltd (1997) 74 FCR 384 at page 389 (Drummond J)
First, the order I propose to make will not, of course, include disbursements, such as the expense of retaining experts. Second, the making of the order will not necessarily mean that the costs any party may be ordered to pay will be assessed on a party and party basis. Unless the Court otherwise orders under r.21.10 of the FCC Rules, the costs that a party may be ordered to pay are to be assessed in accordance with Part 1 of Schedule 1 to the FCC Rules. That means that if, at the end of the matter, a party’s costs, as calculated under Schedule 1 to the FCC Rules, are less than the $40,000 I propose to specify, unless the Court orders that that party’s costs be assessed on a party and party basis, the party will be entitled to recover no more than the amount as assessed under Schedule 1 to the FCC Rules. I will record in the orders a note to the effect that the making of an order under r.21.03 of the FCC Rules should not be taken to imply that the costs that a party may be ordered to pay are to be assessed on a party and party basis. Third, the order will not include the costs a party may be ordered to pay of the nature identified in r.21.03(2) of the FCC Rules. I will make this clear by recording an appropriate note to the orders I propose to make.
Subject to reserving to the parties liberty to apply within 21 days for a different order for costs, I also propose to order that the costs of Ms Hudson’s application for an order under r.21.03 of the FCC Rules be costs in the proceedings. Finally, when I announce my orders, I will list the matter for directions on a day that is convenient to the Court and to the parties.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 21 April 2016
6
13
7