Storey v Blacktown City Council

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Storey v Blacktown City Council [2023] FedCFamC2G 1001

File number(s): SYG 2336 of 2021
Judgment of: JUDGE MANOUSARIDIS
Date of judgment: 3 November 2023
Catchwords: HUMAN RIGHTS – Application to summarily dismiss claims made against a local council purportedly pursuant to ss 5, 6, 7, 11, 29, 30, and 32 of the Disability Discrimination Act 1992 (Cth) – (DD Act) – proceeding dismissed to the extent it relates to claims under those provisions – directions made for the filing of written submissions on whether conduct that amounts to victimisation within the meaning of s 42(2) of the DD Act constitutes “unlawful discrimination” within the meaning of s 3 of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) and, if not, whether the Court has jurisdiction under s 46PO(1) of the AHRC Act to hear the claims the applicants make purportedly on the basis of s 42 of the DD Act.
Legislation: Acts Interpretation Act 1901 (Cth) s 19(1)
Australia Human Rights Commission Act 1986 (Cth) ss 3, 46PO(1)
Disability Discrimination Act 1992 (Cth) ss 3, 4, 5, 6, 7, 10, 11, 29, 30, 31, 32, 42
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 143
Federal Court of Australia Act 1976 (Cth) s 31A
Federal Circuit and Family Court of Australia (Division 2)(General Federal law) Rules 2021 (Cth) r 13.13
Cases cited:

 Hudson v Australian Broadcasting Corporation [2016] FCCA 917

Przybylowski v Australian Human Rights Commission(No 2) [2018] FCA 473

Purvis v State of New South Wales (Department of Education & Training) [2003] HCA 62

Division: General
Number of paragraphs: 71
Date of hearing: 16 May 2022
Place: Sydney
First and Second Applicant: First applicant in person, and on behalf of the second applicant, by video
Counsel for the Respondent: Ms V Bulut, by video
Solicitor for the Respondent: Sparke Helmore Lawyers

ORDERS

SYG 2336 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

DEREK STOREY

First Applicant

DONGYUN STOREY

Second Applicant
AND:

BLACKTOWN CITY COUNCIL

Respondent

ORDER MADE BY:

JUDGE MANOUSARIDIS

DATE OF ORDER:

3 NOVEMBER 2023

THE COURT ORDERS THAT:

1.Pursuant to s 143(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) the proceeding be dismissed to the extent it relates to the applicants’ claims based, or purportedly based, on ss 5, 6, 7, 11, 29, 30, and 32 of the Disability Discrimination Act 1992 (Cth) (DD Act).

2.By 17 November 2023 the respondent file and serve written submissions on the following questions:

(a)whether conduct that amounts to victimisation within the meaning of s 42(2) of the DD Act constitutes “unlawful discrimination” within the meaning of s 3 of the Australia Human Rights Commission Act 1986 (Cth) (AHRC Act); and

(b)if (a) is answered in the negative, whether the Court has jurisdiction under s 46PO(1) of the AHRC to entertain the applicants’ claims to the extent they…

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Details
Case
[2023] FedCFamC2G 1001
Decision Date

CaseChat Overview and Summary

In Storey v Blacktown City Council, the applicants, Mr and Mrs Storey, initiated proceedings against the Blacktown City Council, alleging unlawful discrimination under various provisions of the Disability Discrimination Act 1992 (Cth) (DDA), as well as breaches of other statutory and common law obligations. The applicants claimed that their neighbour’s aviary and hot water system caused significant noise and health issues for them, and that the Council failed to address their complaints adequately. The Council filed an application to summarily dismiss the applicants' claims, arguing that they had no reasonable prospects of success on most of their claims.

The primary legal issue before the court was whether the applicants had reasonable prospects of success on their claims under the DDA, and if not, whether the court had jurisdiction to hear the applicants' claims under the Australian Human Rights Commission Act 1986 (AHRC Act). The court had to consider the principles governing the dismissal of proceedings under section 143 of the Federal Court of Australia Act 1976 (FCA Act), particularly whether the applicants had no reasonable prospects of success on their claims.

The court concluded that the applicants had no reasonable prospects of succeeding on their claims under sections 5, 6, 7, 11, 29, 30, and 32 of the DDA. The applicants' claims under these sections were largely based on the Council's alleged failure to adequately respond to their complaints about noise and health issues caused by their neighbour's aviary and hot water system. The court found that the applicants had not established a prima facie case of unlawful discrimination under these sections. However, the court left open the question of whether the applicants' claims of victimisation under section 42 of the DDA constituted "unlawful discrimination" under section 3 of the AHRC Act, and whether the court had jurisdiction to hear these claims. The court directed the applicants to file written submissions on these issues.

The court dismissed the applicants' claims under sections 5, 6, 7, 11, 29, 30, and 32 of the DDA, but did not dismiss the claims in their entirety. The court ordered the applicants to file written submissions within a specified timeframe to address the jurisdictional and legal issues related to their claims of victimisation under section 42 of the DDA.

Orders

Orders of the court

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Background

Background to the litigation

Before I consider whether, as the Council contends, the applicants do not have reasonable prospects of succeeding on all but one of their claims based on the DD Act, I will set out:(a)the procedural background out of which the Council’s application arises;(b)the applicants’ claims;(c)the elements of each of the causes of action for unlawful discrimination under the DD Act on which the applicants rely; and(d)the principles governing the exercise of the power to dismiss a proceeding, or a part of a proceeding, under s 143 of the FCFC Act.BACKGROUND On 20 December 2021 the applicants, who are not legally represented, filed an application in this Court under s 46PO(1) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) in which they allege the Council engaged in unlawful discrimination, contrary to a number of provisions of the DD Act. The applicants’ claims relate to the Council’s response or lack of response to complaints the applicants made in relation to the noise they claim emanates from an aviary, and from a hot water system, which are located on a neighbouring property (neighbouring property). The application also named an officer of the Council as a party. With the application the applicants filed an affidavit made by the first applicant, Mr Storey, on 19 December 2021. That affidavit consists of attachments, which include the following:(a)An email Mr Storey sent on 27 March 2020 to officers of the Council about “the large number of birds being kept within 1m of our property”. Mr Storey stated that the birds have been causing him breathing and chest issues, which worsen when he is out in the garden. Mr Storey further stated that the bird dust, and the faeces the birds generate, enter the applicants’ back-garden, and into the house if the windows are open; this has been ongoing for 15 months; and he had raised these health issues several times with the Council, but the Council constantly ignored his concerns.(b)A graph Mr Storey described as “Horatio Noise Reading – 23-November – LAeq Graphical Results”.(c)An email the Mayor sent to Mr Storey on 7 April 2020, stating that the Council’s Chief Executive Officer (CEO) had requested a full review of the Council’s investigations into the matter, and that Mr Storey would be provided with a response at the conclusion of that review.(d)An email Mr Storey sent, on 27 April 2020, to the Council attaching a “Court Noise Abatement Order”. Mr Storey stated that the police had said that it is a council’s duty to ensure “the Tenant and Landlord Comply with this order”.(e)An email Mr Storey sent to the Council, on 15 June 2020, attaching “Graphs of Noise Measurements taken by . . . Council Meter” supplied to Mr Storey. Mr Storey stated that the Council’s meter measurements show that “bird noise clearly is in breach of the Law”.(f)An email Mr Storey sent on 13 August 2020 to the Council, stating that more birds were being moved closer to the applicants’ bedrooms, and that Mr Storey assumed this was done with the Council’s full knowledge “as punishment for raising a discrimination complaint to the ADB”. Mr Storey claimed that, notwithstanding the Council’s own noise measurements, and the applicants’ having provided to the Council the “Court Noise Abatement Order”, the Council had allowed the birds to remain on the neighbouring property, and had not responded to the emails Mr Storey had sent to the CEO and to the Mayor.(g)A letter dated 27 August 2020 the Council sent to Mr Story attaching a letter from the Council’s Executive Corporate Counsel “in relation to a Noise Abatement Order [Mr Storey] obtained from Blacktown Local Court”. The letter stated that the Council had inspected the neighbouring property, and found that the number of budgerigars had not increased; the number kept was compliant with Council’s instruction that the applicants’ neighbour keep not more than 20 adult birds; the main aviary was in the same location as it had previously been identified; and there was one cage housing two adult budgerigars against the rear of the main aviary, and two small breeding boxes with five baby birds. The letter further stated that the location of the adult bird cage and the baby bird cage were still well outside the required distance from the applicants’ house.(h)An email Mr Storey sent to the Council, on 31 August 2020, stating that the birds were not at a distance “prescribed under Legislation”, because “it requires birds to be at sufficient distance that they do not cause Nuisance – noise, offensive odour or health risk”; the birds “produce faeces particles, bird dust etc (plus. Their noise)”; each breeding pair of birds will produce 4-6 young, so that in a matter of two months there will be 60-90 birds; and that even the Council’s officers “have said that moving them a few metres will accomplish nothing”.(i)An email Mr Storey sent on 1 February 2021 to officers of the Council making a request under the “Freedom of Information Act” of the noise data from the noise meter that had been installed at the applicants’ home from 3 to 4 December 2020. Mr Storey requested “under the Privacy Act” that all copies of the audio recorded from the noise-measuring meter be destroyed. Mr Storey also stated that the applicants’ neighbour’s hot water heater is installed next to their bedroom; it operated from 6:00 am to 1:00 am (which is in breach of the law); and that the applicants expected the Council to do something about it.(j)A letter dated 8 February 2021 from the Council to the applicant noting that the Council was seeking legal advice about Mr Storey’s enquiry concerning noise data taken on 3-4 December 2020. The letter also stated that officers of the Council attended the neighbouring property, and requested the installation certificate for the hot water system, and had written to the manufacture requesting the manufacturing specifications.(k)A number of medical reports in relation to the applicants.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The Council has caused the applicants unjustifiable hardship in that the applicants have no peace or quiet in their own home; they suffer from severe insomnia; they are not able to go to their back garden because of the constant noise and odour; they are suffering worsening mental health and physical health, which impacts on their ability to work.Section 29 – administration of Commonwealth laws and programs The Council has been deliberately not performing its function, allowing breaches of the law. This includes intentionally misinterpreting bird noise measurements so that the Council does not have to exercise its power under Commonwealth laws and programs. Further, the Council has failed to enforce the court noise abatement order. The Council has failed to enforce the following laws:(a)The Protection of the Environment Operations Act 1997, (NSW) (PEO Act); and in particular “Part 3 Objections of Act Part Subdivision (d) – Section (i) – Pollution Prevention Section (iia) – “the elimination of harmful wastes”. This appears to be a reference to s 3(d)(i) and s 3(iia) of the PEO Act. No assessment has been done on bird pollution levels notwithstanding “Internet Articles” showing that a large number of aviaries and birds close to residential premises constitutes a health risk.(b)The Local Government Act 1993 (NSW) (LG Act), and in particular “Part (8A) – Subdivision (h))” – “Councils should act fairly, ethically and without bias in the interests of the local community” (that appears to be a reference to s 8A(h) of the LG Act), and s 125 of the LG Act (which provides that a council may abate a public nuisance or order a person responsible for a public nuisance to abate it).(c)The Public Health Act 2010 (NSW) (PH Act), and in particular “Part (3) – Objects – Subdivision (2)” (being a reference to s 3(2)), which provides that the “protection of the health and safety of the public is to be the paramount consideration in the exercise of functions under this Act”. The Council undertook no investigation into the health risks to the applicants, even though the applicants had provided emails and doctors’ letters to the Council.(d)State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW) (SEPP), “[s]ubdivision 4 Aviaries - Sections (f) &(g)”. Section 2.8 prescribes standards for a development that comprises the construction and installation of an aviary. Paragraph (f) requires the development have an impervious floor, and that it must be “constructed or installed so that roofwater is disposed of without causing a nuisance to adjoining owners”. The Council informed the applicants that the floor of the neighbouring aviary is only “partially impervious”.(e)The Work Health and Safety Act 2011 (NSW) (WHS Act), “Division 2 – Primary duty of care”. That appears to be a reference to s 19 of the WHS Act. The Council has knowingly allowed the applicants as ratepayers and customers of the Council to be harmed.(f)The Civil Liability Act 2002 (NSW) (CL Act), “Part 3 Mental harm Division 2 Duty of care”.(g)The Surveillance Devices Act 2007 (NSW), “subdivision 7”. The Council installed a noise monitoring device without the applicants’ knowledge to “continuously record [the applicants’] private and personal conversations”, which the Council “will neither return or destroy said recordings”.(h)The Government Information (Public Access) Act 2009 (NSW) (GIPA Act).(i)The Privacy and Personal Information Protection Act 1998 (NSW). The Council will not supply to the applicants copies of “their Reports or internal findings in relation to their assessment of the nuisance Noise, etc, from [the applicants’] neighbours”.Section 30 – requests for information