Physical Disability Council of NSW v Sydney City Council

[1999] FCA 112

FEDERAL COURT OF AUSTRALIA

Physical Disability Council of NSW v Sydney City Council [1999] FCA 112

INTERLOCUTORY INJUNCTIONS - Application for an interlocutory injunction seeking orders for the preservation of a pedestrian bridge - arguable case of discrimination under the Disability Discrimination Act 1992 (Cth) - applicant arguably required by HREOC to demonstrate an appropriate case for exercise of "the extraordinary power" to grant an interim determination - arguable this misconceived the nature of HREOC's powers and imposed too high a burden on the applicant - possible failure to take full account of applicant's case - balance of convenience against intervention by Court - likelihood of future destruction of bridge in any event - expense to the respondent - feasible alternatives to litigious solution

Disability Discrimination Act 1992 (Cth)

PHYSICAL DISABILITY COUNCIL OF NSW v SYDNEY CITY COUNCIL
N 84 OF 1999

MADGWICK J
5 FEBRUARY 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 84 OF 1999

BETWEEN:	PHYSICAL DISABILITY COUNCIL OF NSW Applicant
AND:	SYDNEY CITY COUNCIL First Respondent
HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION Second Respondent
JUDGE:	MADGWICK J
DATE OF ORDER:	5 FEBRUARY 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for an interlocutory injunction be dismissed.

2.The matter be stood over for further directions on Friday 19 February 1999.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 84 OF 1999

BETWEEN:	PHYSICAL DISABILITY COUNCIL OF NSW Applicant
AND:	SYDNEY CITY COUNCIL First Respondent
HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION Second Respondent

JUDGE:	MADGWICK J
DATE:	5 FEBRUARY 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

1. I am not going to grant an interlocutory injunction in this matter. 

2. It seems to me that there is an arguable case shown that the underlying facts might cause a finding to be made by the Human Rights and Equal Opportunity Commission ("the Commission") that there has been discrimination within the meaning of the Disability Discrimination Act 1992.  However, it does not seem to me, as presently advised, that that case is of anything like overwhelming strength.  It seems to me that there is an arguable case but a barely arguable case, that in due course the Commission might be persuaded to take some restorative action, if it found discrimination, that would result in the bridge in question being put back into useable condition.  It seems to me probable, without wishing to prejudice the Commission's further considerations in the least, that no such decision would be made. 

3. Among other things, it seems to me that there is an extraordinarily wide range of options available to the parties that fall short of litigation.  Given the approach of the Olympics and the Para-Olympics to Sydney, it is reasonable to argue that a wide range of political allies might be garnered by the applicant and that the prospects of a co-operative

   
   
   

   approach towards the improvement of wheelchair access in the city being co-ordinated with the respondent are high.

4. There is an arguable case that the Commission erred in relation to its interim determination on two scores.  The first is that it seems to me arguable that it was erroneous for the Commission to take the view that its power to issue interim determinations should be regarded as "extraordinary" such that the applicant be required to satisfy a high burden.  As presently advised, on a very inadequate basis, it appears to be strongly arguable that all that need be shown is there is a proper case for an interim determination.  Secondly, it seems arguable that the Commission did not take full account, on the issue of balance of convenience, of the possible strength of the applicant's case. 

5. However, as to the balance of convenience in this Court, it seems to me that the balance is against the Court intervening.  Such action would undoubtedly cause expense to the respondent.  Overall, the prospects of particular final relief, from the entirety of that sought in the litigation being granted, of a kind that would justify the interim relief now claimed, seem to be not strong at all.

6. I do not doubt that the existence of the bridge in working order has been and would continue to be a matter of very considerable importance to a number of wheelchair-bound people.  However, even if the court intervened, it seems highly improbable that the bridge would continue to exist for more than a couple of years at the outside and it is more likely that, with the entire city and State in the grip of Olympic fever, it would come down considerably earlier than that.

7. It seems to me, above all, highly probable that, by redirecting their efforts elsewhere, steps may be taken between the parties to this action which are likely to be of greater assistance to disabled people than any outcome that may be achieved in this action.

8. I will reserve the question of costs and direct that the representatives of the parties confer about the matters I have touched upon in my remarks generally, including the question of costs.  The matter is to be stood over for further directions in 14 days time, on Friday

   
   
   

   19 February at 9.30 am.  I suggest to the parties, including the Commission, that a senior conciliation person with expertise in the field of disabilities ought be engaged to resolve the very serious matters that have, in good faith, been raised by the applicant.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:             5 February 1999

Counsel for the Applicant:	Ms A Tibbey
Solicitor for the Applicant:	Legal Aid Commission of NSW
Counsel for the 1st Respondent:	Ms C Ronalds
Solicitor for the 1st Respondent:	Dunhill Madden Butler
Counsel for the 2nd Respondent:	Ms K Eastman
Solicitor for the 2nd Respondent:	Human Rights and Equal Opportunity Commission
Date of Hearing:	5 February 1999
Date of Judgment:	5 February 1999