Hudson v Australian Broadcasting Corporation - [2016] FCCA 917

FEDERAL CIRCUIT COURT OF AUSTRALIA

HUDSON v AUSTRALIAN BROADCASTING CORPORATION

[2016] FCCA 917

Catchwords:
PRACTICE AND PROCEDURE – Claim by visually impaired applicant that respondent discriminated against her contrary to s.24 of the Disability Discrimination Act 1992 (Cth) (DDA) because it failed to provide to the applicant an audio description service in connection with the respondent’s broadcasting of television programs – applicant applies for order under r.21.03 of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) that the Court specify $15,000 as the maximum amount of costs a party may recover against another party on a party and party basis – purposes for which order under r.21.03 of the FCC Rules may be made – factors relevant to determining whether order should be made – whether proceedings likely to give rise to complex issues of fact or law – whether there is a public interest element in the bringing of the proceedings – whether applicant will continue with the proceedings if order not made – order made specifying $40,000 as the maximum amount of costs one party may recover against the other party on a party and party basis.

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
Disability Discrimination Act 1992 (Cth), ss.4(1), 5, 5(1), 5(2), 6, 6(1), 6(2), 6(3), 6(4), 11, 11(1), 11(2), 24, 24(b), 24(c)

Federal Circuit Court Rules 2001, rr.21.03, 21.03(1), 21.03(2), 21.10

Federal Circuit Court Rules 2001, Sch.1
Federal Court Rules 1979 (Cth), Or.62A r.1
Federal Court Rules 2011 (Cth), r. 40.51(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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] FCCA 917
Decision Date: 21 April 2016

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Judge Manousaridis considered an application by Ms Hudson, a visually impaired applicant, who alleged that the Australian Broadcasting Corporation (ABC) discriminated against her contrary to section 24 of the *Disability Discrimination Act 1992* (Cth) by failing to provide an audio description service (ADS) for its television broadcasts. Ms Hudson sought an order under rule 21.03 of the *Federal Circuit Court Rules 2001* (Cth) to specify a maximum amount of costs recoverable on a party and party basis.

The court was required to determine the purposes for which an order under rule 21.03 could be made, the factors relevant to exercising that power, and whether the proceedings were likely to involve complex issues of fact or law, had a public interest element, or if the applicant would continue with the proceedings without such an order. Additionally, the court considered whether the power under rule 21.03 was limited to specifying costs assessed on a party and party basis or extended to costs assessed under Schedule 1 of the FCC Rules. The court also examined the elements of a claim for relief under section 46PO of the *Australian Human Rights Commission Act 1986* (Cth) based on an alleged contravention of section 24 of the DDA, including the construction of "discrimination" as defined in section 5(2) of the DDA and how a supplier might contravene section 24.

Judge Manousaridis reasoned that while some aspects of Ms Hudson's claim, such as the existence of the relevant service and the ADS, were unlikely to be factually contested, the determination of whether the ADS constituted an "adjustment" to the service would likely require expert evidence and thus involve complexity. Furthermore, the ABC's defence, which anticipated relying on numerous factors to establish unjustifiable hardship, including evidence regarding the failure of an ADS trial, channel availability, programming impact, technician availability, costs, and funding, suggested a substantial degree of complexity. The court also noted that the ABC's potential applications regarding Ms Hudson's claim would add to the proceedings' complexity. Regarding the scope of rule 21.03, the court concluded that the power was restricted to specifying maximum costs recoverable on a party and party basis.

Ultimately, the court made an order under rule 21.03, specifying $40,000 as the maximum amount of costs one party could recover against the other on a party and party basis.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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