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Price v Det (NSW)

Price v Det (NSW)

Case [2008] FMCA 1018 28 July 2008

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

PRICE v DET (NSW)

[2008] FMCA 1018

HUMAN RIGHTS – Disability discrimination – “complaint” – complainant does not need to identify those sections of the relevant Act on which the success of the complaint depends – it is sufficient to allege than an act of unlawful discrimination has occurred – the way a complaint is expressed should not be construed unduly strictly – Court has no jurisdiction to entertain complaints not subject to the HREOC Notice of Termination.

PRACTICE & PROCEDURE – No reasonable prospects of success – summary dismissal application – appropriate test.

PRACTICE & PROCEDURE – Complaints of disability discrimination – complaint first brought to NSW Anti-Discrimination Board under NSW legislation cannot be brought again to HREOC under Commonwealth legislation – s.13(4) Disability Discrimination Act 1992 – no cause of action – application dismissed.

Anti-Discrimination Act 1977 (NSW), ss.49A, 49B, 49L, 49M, 89B

Human Rights & Equal Opportunity Commission Act 1986, ss.3, 46P, 46PH, 46PO

Disability Discrimination Act 1992, ss.13, 22, 32
Federal Magistrates Act 1999, s.17A
Migration Litigation Reform Act 2005

Federal Court of Australia Act 1976, s.31A
Sex Discrimination Act 1984
Human Rights Legislation Amendment Act (No. 1)1999

Federal Magistrates Court Rules 2001, r.13.10

Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352
Hocking v Bell (1947) 75 CLR 125
Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd [2006] FCA 1416
Rana v University of South Australia [2004] FCA 559
Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd [2007] FMCA 157
Jefferson Ford Pty Limited v Ford Motor Company of Australia Ltd [2008] FCAFC 60
Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905
Travers v State of New South Wales [2000] FCA 1565
Hollingdale v Northern Rivers Area Health Service [2004] FMCA 721
Simplot Australia Pty Ltd v Human Rights & Equal Opportunity Commission (1996) 69 FCR 90
Commonwealth v Sex Discrimination Commissioner (1998) 90 FCR 179 Jandruwanda v Regency Park College of TAFE [2003] FCA 1455
Yee v North Coast Area Health Service [2007] FMCA 1788
Barghouthi v Transfield Pty Ltd (2002) 122 FCR 19

Applicant:

TYLER PRICE
BY HIS TUTOR, KATHERINE COURT

Respondent:

DIRECTOR GENERAL, DEPARTMENT OF EDUCATION & TRAINING (STATE OF NEW SOUTH WALES)

File Number:

SYG 659 OF 2008

Judgment of:

Cameron FM

Hearing date:

4 June 2008

Date of Last Submission:

4 June 2008

Delivered at:

Sydney

Delivered on:

28 July 2008

REPRESENTATION

Counsel for the Applicant:

Ms P. Gormly

Solicitors for the Applicant:

Louise Butt Lawyers

Counsel for the Respondents:

Ms J. Oakley

Solicitors for the Respondents:

I.V Knight, Crown Solicitor

ORDERS

Pursuant to r.13.10 of the Federal Magistrates Court Rules 2001, the application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 659 of 2008

TYLER PRICE BY HIS TUTOR, KATHERINE COURT

Applicant

And

DIRECTOR GENERAL, DEPARTMENT OF EDUCATION & TRAINING (STATE OF NEW SOUTH WALES)

Respondent

REASONS FOR JUDGMENT

Introduction

By an…

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 Price v Det (NSW)

Details

AGLC: Price v Det (NSW) [2008] FMCA 1018
Case: [2008] FMCA 1018
Decision Date: 28 July 2008

CaseChat Overview and Summary

Price v Det (NSW) involves a dispute over disability discrimination. The plaintiff, Price, sought to bring a complaint of disability discrimination against Det to the Human Rights and Equal Opportunity Commission (HREOC) under the Disability Discrimination Act 1992. The defendant, Det, applied for the complaint to be summarily dismissed on the basis that it had no reasonable prospects of success, and that the complaint was not within the jurisdiction of HREOC.

The court had to determine whether the complaint was properly before it and whether there were reasonable prospects that the complaint would succeed. The court also had to consider whether the complaint met the necessary legal standards, including whether it was sufficiently detailed to identify the sections of the Act on which the success of the complaint depended. Additionally, the court needed to decide whether the complaint was res judicata, given that it had already been brought to the NSW Anti-Discrimination Board under NSW legislation.

The court found that the complaint was not within its jurisdiction as it had already been brought to the NSW Anti-Discrimination Board. The court held that section 13(4) of the Disability Discrimination Act 1992 prevented the complaint from being brought again to HREOC. The court also found that the complaint did not meet the necessary legal standards, as it did not identify the relevant sections of the Act on which the success of the complaint depended. However, the court held that the way a complaint is expressed should not be construed unduly strictly. Ultimately, the court dismissed the application for summary dismissal as the complaint did not have reasonable prospects of success.

The court's final orders were that the application for summary dismissal be dismissed. The court found that the complaint was not within its jurisdiction and that it did not have reasonable prospects of success. The court did not make any orders in relation to the substantive complaint as it did not have jurisdiction to hear it.

Orders

Orders of the court

Pursuant to r.13.10 of the

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.

Citations

AGLC Citation

Price v Det (NSW) [2008] FMCA 1018

Most Recent Citation

THOMAS v IBM AUSTRALIA LTD [2013] FCCA 1993

Cases citing this decision · 3 of 3 shown

LEACH v Prestige Real Estate Services Pty Ltd
[2019] FCCA 2289 Para 3

…f further non-compliance or default), and an order as to costs thrown away and in respect of or incidental to this Application. [1] Price v DET (NSW) [2008] FMCA 1018 at [14]-[18]…
Krysiak v Public Transport Authority of Western Australia
[2016] FCCA 2121 Para 17

…der the DD Act in relation to the re-routing of bus route number 15, which was originally part of what is now bus route number 14: Price v DET(NSW) [2008] FMCA 1018 at [43]-[45] per Cameron FM. The Court observes that its determination of those issues is not assisted by the fact that the applicant did not, as would…
Thomas v IBM Australia Ltd
[2013] FCCA 1993 Para 2

…to the AHRC: Soreng v Victorian State Director of Public Housing [2002] FMCA 124; Price v Director-General, Department of Education & Training (NSW) [2008] FMCA 1018.…

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Cases cited in this decision · 15 of 15 shown

Spiteri v Nine Network Australia Pty Ltd
[2008] FCA 905 Para 6

…Ford Motor Company of Australia Ltd [2008] FCAFC 60. Their Honours’ decision was discussed by Edmonds J in Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905. As his Honour observed, in the Jefferson Ford case Finkelstein and Gordon JJ expressed views which differed from each other and from the views express…
Yee v North Coast Area Health Service
[2007] FMCA 1788 Para 2

…as by the cases which have considered it such as Jandruwanda v Regency Park College of TAFE [2003] FCA 1455, Yee v North Coast Area Health Service [2007] FMCA 1788 and Hollingdale v Northern Rivers Area Health Service .…
Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd
[2007] FMCA 157 Para 5

…In this Court in Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd [2007] FMCA 157 , Driver FM agreed with and applied the summary of principles set out by Jacobson J in Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd. His Honour also commented that in considering when an apparently hopeless case…
Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq) (formerly Stanley Thompson Valuers Pty Ltd)
[2006] FCA 1416 Para 3

…Those principles were summarised by Jacobson J in Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd [2006] FCA 1416 at [30] in the following terms: • In assessing whether there are reasonable prospects of success, the Court must be cautious not to do an injustice by summary dismissal. • There will be reason…
Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd
[2006] FCA 1352 Para 2

…gration Litigation Reform Act 2005 and commenced on 1 December 2005. In Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 Rares J considered s.31A of the Federal Court of Australia Act 1976 which is equivalent to s.17A of the Federal Magistrates Act . His Honour concluded…
Hollingdale v Northern Rivers Area Health Service
[2004] FMCA 721 Para 5

…In Hollingdale v Northern Rivers Area Health Service [2004] FMCA 721, Driver FM said at [10]: The task for the Court is to determine what are the parameters of the complaint that has been terminated. The documents on which that determination may properly be based include, but are not necessarily limited to, the no…
Rana v University of South Australia
[2004] FCA 559 Para 4

…wealth Bank of Australia v ACN 000 247 601 Pty Ltd should be considered in the light of Lander J’s comments in Rana v University of South Australia [2004] FCA 559, notwithstanding that Lander J was speaking prior to the introduction of s.17A: In my view, because the FMC Rules do not require pleadings; the parties…
Jandruwanda v Regency Park College of TAFE
[2003] FCA 1455 Para 2

…issible is made clear by the terms of s.46PO(3) as well as by the cases which have considered it such as Jandruwanda v Regency Park College of TAFE [2003] FCA 1455, Yee v North Coast Area Health Service [2007] FMCA 1788 and Hollingdale v Northern Rivers Area Health Service .…
Barghouthi v Transfield Pty Ltd
[2002] FCA 666 Para 8

…Reference was made to the decision of Hill J in Barghouthi v Transfield Pty Ltd (2002) 122 FCR 19 where his Honour held that s.13(4) of the Disability Discrimination Act does not prevent a second complaint if the final complaint fails because the first chosen forum lacked jurisdiction. In that case the applicant had…
Bradley -v- State of New South Wales
[2002] NSWADT 11 Para 6

…the Human Rights Legislation Amendment Act ( No. 1) 1999 , was considered in Simplot Australia Pty Ltd v Human Rights & Equal Opportunity Commission (1996) 69 FCR 90 and Commonwealth v Sex Discrimination Commissioner (1998) 90 FCR 179. In both of those cases it was stated that an initiating complaint of discrimina…
Travers v State of New South Wales
[2000] FCA 1565 Para 4

…purposes of s.46PO(3) have relevance to the understanding of those terms in s.46P(1). As Lehane J said in Travers v State of New South Wales [2000] FCA 1565 at [8]: … the initial complaint may be in quite brief and general terms, the detail being elicited in the course of inquiries … It may well be that the ambit…
Commonwealth v Sex Discrimination Commissioner
[1998] FCA 1607 Para 6

…idered in Simplot Australia Pty Ltd v Human Rights & Equal Opportunity Commission (1996) 69 FCR 90 and Commonwealth v Sex Discrimination Commissioner (1998) 90 FCR 179. In both of those cases it was stated that an initiating complaint of discrimination was not to be treated as a formal document or a pleading althoug…
Simplot Australia Pty Ltd v Human Rights and Equal Opportunity Commission
[1996] FCA 718 Para 6

…of the Sex Discrimination Act 1984 as it stood before amendments made by the Human Rights Legislation Amendment Act ( No. 1) 1999 , was considered in Simplot Australia Pty Ltd v Human Rights & Equal Opportunity Commission (1996) 69 FCR 90 and Commonwealth v Sex Discrimination Commissioner (1998) 90 FCR 179. In both of those cases it was stated that an initiating complaint of…
Hocking v Bell
[1947] UKPCHCA 1 Para 2

…ue of fact as being where the evidence is not all one way so that only one conclusion can be said to be reasonable, as considered in Hocking v Bell (1947) 75 CLR 125 at 130 – 131. His Honour also suggested that the matter ought to go to trial where there is a real issue of law of a similar kind. In his Honour’s view…
[2008] FCAFC 60
[2008] FCAFC 60 Para 6

…urt of the Federal Court has considered s.31A of the Federal Court of Australia Act , in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60. Their Honours’ decision was discussed by Edmonds J in Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905. As his Honour observed, in the Jeffer…

Legislation cited in this decision · 11

Disability Discrimination Act 1992 (Cth)
13, 22, 32 7 mentions (from Para 2)
Anti-Discrimination Act 1977 (NSW)
49A, 49B, 49L, 49M, 89B 6 mentions (from Para 2)
Equal Opportunity Commission Act 1986 (Cth)
3, 46P, 46PH, 46PO 5 mentions (from Para 9)
Federal Court of Australia Act 1976 (Cth)
31A 2 mentions (from Para 2)
Federal Magistrates Act 1999 (Cth)
17A 2 mentions (from Para 1)
Federal Magistrates Court Rules 2001 (Cth)
13.10 2 mentions (from Para 1)
Age Discrimination Act 2004 (Cth)
1 mention (from Para 1)
Human Rights and Equal Opportunity Commission Act 1986 (Cth)
1 mention (from Para 3)
Migration Litigation Reform Act 2005 (Cth)
1 mention (from Para 2)
Racial Discrimination Act 1975 (Cth)
1 mention (from Para 1)
Sex Discrimination Act 1984 (Cth)
1 mention (from Para 1)