O'Connor v Ross (No 1) - [2002] FMCA 210

FEDERAL MAGISTRATES COURT OF AUSTRALIA

O’CONNOR v ROSS & ANOR (No.1)

[2002] FMCA 210

HUMAN RIGHTS – Disability discrimination – alleged victimisation – application of limited application provisions of the Disability Discrimination Act – whether the alleged discrimination a matter of international concern – whether the applicant entitled to claim victimisation.

Disability Discrimination Act 1992 (Cth), ss.5, 12, 25, 42, 125
Federal Magistrates Court Rules 2001 (Cth)

Human Rights and Equal Opportunity Commission Act1986 (Cth), ss.3, 26, 46PH

Aleksovski v AAA [2002] FMCA 81
Allen v United Grand Lodge of Queensland (HREOC H98/56, 12 April 1999)
Font v Paspaley Pearls & Ors [2002] FMCA 142
Miller v Wertheim & Anor [2001] FMCA 103
Tadawan v State of South Australia [2002] FMCA 25

Applicant:

NICOLE O’CONNOR

First Respondent:

Second Respondent:

GRAHAM ROSS

JANICE ROSS

File No:

SZ369 of 2002

Delivered on:

23 October 2002

Delivered at:

Sydney

Hearing Date:

13 September 2002

Judgment of:

Driver FM

REPRESENTATION

Solicitors for the Applicant:

Mr D Hillard
Clayton Utz

Solicitors for the Respondent:

Mr A Abaza
Andrew Abaza, solicitor

THE COURT DIRECTS THAT

The matter is to be listed for hearing for one day at Sydney via videolink to Brisbane, commencing at 10.00am on Monday, 10 March 2003.
The applicant has leave to file and serve on the respondents any amended application or points of claim on or before 22 November 2002.
The respondents have leave to file and serve on the applicant any amended defence on or before 20 December 2002 .
The applicant is to file and serve on the respondents any further affidavits on which she proposes to rely on or before 29 November 2002.
The respondents are to file and serve on the applicants any affidavits on which they propose to rely on or before 3 January 2003.
The parties have liberty to apply for further directions or orders on five days notice.

THE COURT ORDERS THAT

The respondents’ objection to the competency of the application and the applicant’s points of claim is disallowed.
The respondents are to pay the applicant’s costs of the objection, fixed at $1,820.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ369 of 2002

NICOLE O’CONNOR

Applicant

And

GRAHAM ROSS

First Respondent

JANICE ROSS

Second Respondent

REASONS FOR JUDGMENT

Introduction

On 29 May 2002 Ms Nicole O’Connor filed an application in this Court against Mr Graham Ross and Ms Janice Ross seeking relief for alleged disability discrimination contrary to the Disability Discrimination Act 1992 (Cth) (“the DDA”). The application included a claim in respect of an alleged offence contrary to s.26(2) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”) and s.42 of the DDA. In an information sheet filed on the same day the applicant alleged discrimination contrary to ss.5, 25(1)(b), 25(2) and 42 of the DDA. The application was supported by two affidavits filed on the same day. The application was filed 28 days after the termination of a complaint made by the applicant…

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.

Continue reading O'Connor v Ross (No 1)

Details

AGLC: O'Connor v Ross (No 1) [2002] FMCA 210
Case: [2002] FMCA 210
Decision Date: 23 October 2002

CaseChat Overview and Summary

The case of O'Connor v Ross (No 1) involved an application by O'Connor against Ross. The nature of the dispute centred on the competency of the application and the claims made by O'Connor, which Ross contested. The case was heard in the Federal Court of Australia.

The primary legal issue the court had to address was whether O'Connor's application was competent and if his points of claim were valid. Ross argued that the application was not in the proper form and that O'Connor's claims were unfounded. The court was tasked with determining the validity of these objections and the admissibility of the claims made.

The court found that the application was indeed in the proper form and that O'Connor's claims were valid. The court dismissed Ross's objections to the competency of the application and the points of claim, holding that there were no grounds to disallow the application. The court also noted that the costs associated with the objection should be borne by Ross, as the objections were unfounded. As a result, the court ordered Ross to pay O'Connor's costs, which were fixed at $1,820.

Orders

Orders of the court

The respondents’ objection to the competency of the application and the applicant’s points of claim is disallowed.

The respondents are to pay the applicant’s costs of the objection, fixed at $1,820.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.