Hudson v Australian Broadcasting Corporation

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.