King v Virgin Australia Airlines Pty Ltd

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FEDERAL COURT OF AUSTRALIA

King v Virgin Australia Airlines Pty Ltd [2014] FCA 36

Citation: King v Virgin Australia Airlines Pty Ltd [2014] FCA 36
Parties: SHEILA KING v VIRGIN AUSTRALIA AIRLINES PTY LTD (ACN 090 670 965)
File number: NSD 1480 of 2011
NSD 2215 of 2011
Judge: FOSTER J
Date of judgment: 5 February 2014
Catchwords: PRACTICE AND PROCEDURE – whether an applicant who alleges direct and indirect unlawful discrimination on account of her physical disability or the need for her to use disability aids on the part of a low-fare airline in Australia should have the benefit of an order pursuant to r 40.51 of the Federal Court Rules 2011 specifying the maximum amount of costs as between party and party that may be recovered for the proceeding in circumstances where she had obtained costs-capping orders both at trial and on appeal in litigation against the other major low-fare airline in Australia – discussion of relevant principles and factors  
Legislation:

Australian Human Rights Commission Act 1986 (Cth), Div 2 of Pt IIB
Civil Aviation Act 1988 (Cth)
Civil Aviation Regulations 1988 (Cth), reg 2A, Sch 1
Civil Aviation Order 20.16.3
Disability Discrimination Act 1992 (Cth), ss 3, 4, 5, 6, 8, 9, 11, 24, 29A and 47
Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth)
Disability Discrimination Regulations 1996 (Cth), reg 2A, Sch 1

           Federal Court Rules 1979, O 62A

Federal Court Rules 2011, r 40.51

           Disability Standards for Accessible Public Transport 2002  
Cases cited: King v Jetstar Airways Pty Ltd (No 2) (2012) 286 ALR 149; [2012] FCA 8 cited
King v Jetstar Airways Pty Ltd (2012) 293 ALR 613; [2012] FCAFC 115 cited
Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (No 2) (2011) 280 ALR 91; [2011] FCAFC 84 cited
Haraksin v Murrays Australia Ltd (2010) 275 ALR 520; [2010] FCA 1133 cited
Purvis v NSW (2003) 217 CLR 902; [2003] HCA 62 cited
Date of hearing: 16 April 2013
Date of last submissions: 2 May 2013
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 98
Counsel for the Applicant: Ms K Nomchong SC, Mr B Fogarty
Solicitor for the Applicant: Australian Centre for Disability Law
Counsel for the Respondent: Mr T Saunders
Solicitor for the Respondent: Allens

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1480 of 2011
BETWEEN:

SHEILA KING
Applicant
AND:

VIRGIN AUSTRALIA AIRLINES PTY LTD (ACN 090 670 965)
Respondent

JUDGE:

FOSTER J

DATE OF ORDER:

5 FEBRUARY 2014

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The Interlocutory Application filed by the applicant on 21 December 2012 be dismissed.

2.The applicant pay the respondent’s costs of and incidental to that Application. 

3.The proceeding be listed for directions at 9.30 am on 19 February 2014 before Foster J. 

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. 



IN THE FEDERAL COURT…

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Details
Case
[2014] FCA 36
Decision Date

CaseChat Overview and Summary

In the matter of King v Virgin Australia Airlines Pty Ltd, the plaintiff, Mrs King, sought a costs-capping order pursuant to rule 40.51 of the Federal Court Rules 2011. Mrs King alleged that she had been directly and indirectly discriminated against by the defendant, Virgin Australia Airlines, due to her physical disability and the need for her to use disability aids. This case followed a similar litigation against another low-cost airline, Jetstar, where Mrs King had also obtained costs-capping orders.

The primary legal issue before the court was whether Mrs King should receive a costs-capping order in her current litigation against Virgin Australia Airlines, given that she had already obtained such orders in her previous litigation against Jetstar. The court had to consider the relevant principles and factors that would justify the granting of a costs-capping order in this case.

In delivering the judgment, the court concluded that the substance of Mrs King's case in the present litigation was essentially the same as the one she had advanced in the Jetstar litigation. As such, the court found that the significance of the public interest factor in her current application was substantially diminished. The court refused Mrs King's application for a costs-capping order and ordered that the costs of the application be paid by Mrs King. Additionally, the court listed the proceeding for directions to be held on 19 February 2014 before Foster J.

Orders

Orders of the court

1. The Interlocutory Application filed by the applicant on 21 December 2012 be dismissed.

2. The applicant pay the respondent’s costs of and incidental to that Application.

3. The proceeding be listed for directions at 9.30 am on 19 February 2014 before Foster J.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The current form of many of the provisions which have been referred to above or set out above were inserted into the DDA by the Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth) (Act No 70 of 2009). That Amending Act inserted replacements for ss 5–9 and s 11 (amongst other provisions). I shall refer to the amendments effected by that Act as “the 2009 amendments”. THE EVIDENCE Mrs King swore two affidavits in support of her costs-capping application, the first on 20 December 2012 and the second on 22 February 2013. In addition, towards the end of the hearing before me, I granted leave to Mrs King to supplement her evidence in support of her application in such manner as she saw fit and to make further submissions directed to such further evidence. As a result, Phillip French, who is Mrs King’s solicitor in the present proceeding, swore an affidavit on 24 April 2013 upon which Mrs King now relies. A Supplementary Written Submission was also filed on behalf of Mrs King. No objection was taken to either of Mrs King’s affidavits. She was not cross-examined. The evidence contained in those affidavits was, therefore, left uncontested for the purposes of the present application. Objection was taken to portions of Mr French’s affidavit upon the ground that the material to which objection was taken was outside the leave granted by me on 16 April 2013. The objections taken by Virgin Airlines to parts of Mr French’s affidavit are not justified. I admit the whole of Mr French’s affidavit into evidence. Relevantly, the evidence tendered before me establishes the following facts and matters:(a)Three requests for a seat on Virgin Airlines flights were refused by Virgin Airlines as alleged by Mrs King.(b)On the first of these occasions, alternative flights were offered to Mrs King by Virgin Airlines.(c)Although QantasLink had flights which were more or less comparable to the flights which Mrs King wished to book with Virgin Airlines, the QantasLink flights were too expensive and too inconvenient to be regarded as acceptable replacements for the Virgin Airlines flights upon which Mrs King wished to travel.(d)On each occasion when Mrs King attempted to book her flights, she was, in effect, told that no seats were available on the flights which were refused to her because of the application of Virgin Airlines’ two seat cap per flight for disabled travellers policy. In each case, the Virgin Airlines’ employee with whom Mrs King dealt indicated to her that the two seat cap had been met on the flights in question prior to her making her request for a seat.(e)On the second occasion when a flight was refused to her, Mrs King was told that no wheelchair assistance could be made available to her in connection with the flight which she had requested because Virgin Airlines had a limited number of staff who could be allocated to assisting persons such as her and that all of those staff had already been allocated to the two disabled travellers who had secured seats under the airlines’ two seat cap per flight for disabled travellers policy.(f)Mrs King asserted that access to public transport and associated facilities by persons with a disability is a matter of public interest. In support of that proposition, she cited various reports and tendered in evidence a number of public statements which had found their way into the media concerning the alleged discrimination perpetrated on disabled travellers by airlines in Australia. Her second affidavit, in particular, contained material of that character.

Decision

Reasons for decision

However, given that I have come to the conclusion that the substance of the case which Mrs King seeks to maintain in the present litigation is the same as the case which she advanced in the Jetstar litigation, the significance of this factor is very substantially diminished.CONCLUSION For all of the above reasons, I have decided to refuse Mrs King’s application for a costs-capping order in the present case. There is no reason why costs of that application should not follow the event. There will be orders accordingly.

Ratio Decidendi

Legal Principle Established

Virgin Airlines’ solicitors’ correspondence was answered by Mr French in detail by his letter dated 10 December 2012. It is not necessary to traverse Mr French’s answer. It is sufficient to note for present purposes that he did not accept any of the points raised in his opponent’s correspondence but rather insisted that Mrs King was entitled to maintain the proceedings as presently pleaded.CONSIDERATION I propose to deal with Mrs King’s costs-capping application by addressing each of the relevant considerations raised by her in support of her application in turn. Mrs King has identified ten such considerations. First, she contended that the proceedings involve a considerable public interest in the sense that they provide an opportunity to improve accessibility to transport services for people with a disability and aged persons who utilise wheelchairs and the opportunity to clarify relatively new legislative provisions in the DDA, being remedial, beneficial legislation. Senior Counsel who appeared for Mrs King submitted that Mrs King was refused service as a result of the inflexible application of Virgin Airlines’ two seat cap for disabled travellers policy on any given flight. She submitted that this conduct constituted unlawful discrimination against Mrs King contrary to ss 5, 6 and 24 of the DDA. She submitted that Virgin Airlines directly discriminated against Mrs King by failing to make reasonable adjustments in the services which they provided or, in the alternative, indirectly discriminated against her, including by way of failing to make such reasonable adjustments. Senior Counsel submitted that the primary remedy sought is a declaration, the purpose of which will serve the public interest. She went on to submit that, in due course, if Mrs King is unsuccessful in the present litigation, the public interest involved would be an appropriate basis for departing from the usual costs rule. It was submitted that the public interest concerned the extent to which a low-cost airline can refuse its air flight services to people with a disability who require wheelchair access in circumstances where:(a)Many people who use wheelchairs have limited income and are therefore attracted to low-cost airlines;(b)Australia is a vast country where major cities are many hours away by land travel; and(c)There is a growing ageing population, many of whom will require the use of a wheelchair when travelling by air. Senior Counsel for Mrs King also submitted that the public interest nature of the litigation is confirmed by the fact that Legal Aid NSW has granted legal aid to Mrs King and that ACDL is acting for her. Counsel also relied upon the various reports tendered in evidence through Mrs King. The nature of the public interest at stake in the present litigation is essentially the same public interest as was in play in the Jetstar litigation brought by Mrs King. Counsel for Virgin Airlines made this point emphatically by quoting from submissions made on behalf of Mrs King in the Jetstar litigation which essentially repeat the submissions which I have summarised at [61] above. Further, I do not think that the matters to which I have referred at [62] above enhance the merit of Mrs King’s current application.