Travers v New South Wales - [2001] FMCA 18

FEDERAL MAGISTRATES COURT OF AUSTRALIA

Stephanie Travers by her next friend, Wendy Travers v State of New South Wales [2001] FMCA 18

DISABILITY DISCRIMINATION – indirect discrimination – access of student with spina bifida to nearest toilet – whether access to disabled toilet should have been given where no specific need for a disabled toilet – whether arrangements could have been made to accommodate the needs of other disabled students to allow access to applicant – discrimination established

Disability Discrimination Act 1992 (Cth) ss.6, 22, 41
Human Rights and Equal Opportunity Commission Act 1986 (Cth) s.46PO(4)

CASES REFERRED TO Waters v Public Transport Corporation (1991) 173 CLR 349, Finney v The Hills Grammar School (2000) EOC 93-087, Kalich v Es (1999) EOC 92-961, Hall v Sheiban Pty Limited (1998) 20 FCR 217, Murphy and Ors v State of New South Wales (2000) EOC 93-095 [other cases on damages], Alex Purvis on behalf of Daniel Hoggan v The State of New South Wales (Department of Education) (unreported HREOC, Commissioner Innes, 13 November 2000), Kerryn Haar v Maldon Nominees Pty Ltd (t/ as McDonalds) and Ors [2000] FMC 5

Applicant:Stephanie Travers

by her next friend,

Wendy LorraineTravers
Respondent:  State of New South Wales
File No:SZ 100 of 2000
Delivered on:  21 March 2001
Delivered at:  Sydney
Hearing Date:  8, 9 & 14 March 2001
Judgment of:  RAPHAEL FM
REPRESENTATION:
Counsel for the Applicant:            Mr Nicholas Poynder
Solicitors for the Applicant:           Public Interest Advocacy Centre
Counsel for the Respondent:    Ms Sylvia Winters
Solicitors for the Respondent:      Crown Solicitors Office

ORDERS:

The respondent pay to the Public Trustee of New South Wales in trust for the applicant until she shall attain the age of 18 years the sum of $6,250.00 by way of damages for unlawful discrimination.
The Public Trustee shall immediately release the sum of $250.00 to Stephanie Travers for her to spend as she may in her absolute discretion decide.

The respondent pay the applicant’s costs in this court and in the Federal Court which, if not agreed, are to be taxed in accordance with the Federal Court Rules.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

IN THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

SYDNEY REGISTRY

No SZ 100 of 2000

STEPHANIE TRAVERS BY HER NEXT FRIEND, WENDY LORRAINE TRAVERS

Applicant

and

STATE OF NEW SOUTH WALES

Respondent

REASONS FOR JUDGMENT

WHAT IS THE NATURE OF THE DISPUTE?

This application is bought by Stephanie Travers, by her next friend and mother Wendy Lorraine Travers, against the State of New South Wales as an educational authority defined in s.41 of the Disability Discrimination Act responsible for the activities and control of the Parramatta West Public School. The claim is brought pursuant to s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) [HREOC Act] and claims that Stephanie was a person discriminated against in breach of s.6 and s.22 of the Disability Discrimination Act 1992 (Cth).
Stephanie Travers is twelve years…

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.

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Details

Case: [2001] FMCA 18
Decision Date: 21 March 2001

CaseChat Overview and Summary

In this case, Stephanie Travers, a student with spina bifida, alleged that the Parramatta West Public School, an educational authority, discriminated against her by denying her access to the nearest toilet, which was a disabled toilet located in E Block. Stephanie's condition required her to be within 12 seconds of the nearest accessible toilet to avoid accidents. The school maintained that Stephanie was not in need of a disabled toilet and that the toilet in E Block was reserved for another student who required it for catheterisation. The court found that the school's actions amounted to indirect discrimination under the Disability Discrimination Act 1992 (Cth) as Stephanie was required to use a toilet that was not the most accessible for her, while other students were able to comply with the requirement. The court ordered the respondent to pay $6,250.00 by way of damages for unlawful discrimination and to pay the applicant's costs in this court and in the Federal Court.

Orders