Varas v Fairfield City Council - [2010] HCATrans 18

[2010] HCATrans 018

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S176 of 2009

B e t w e e n -
MONICA VARAS
Applicant
and
FAIRFIELD CITY COUNCIL
Respondent
Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 FEBRUARY 2010, AT 2.03 PM

MR A.R. MOSES, SC: May it please the Court, I appear with my learned friends, MR P.D. KEYZER and MS K. EDWARDS, for the applicant. (instructed by Haywards Solicitors)

MS K.L. EASTMAN: If your Honours please, I appear with my learned friend, MS E. BISHOP, for the respondent. (instructed by Leigh Virtue & Associates)

GUMMOW J: Yes, Mr Moses.

MR MOSES: Thank you. Your Honours, the special leave questions are crystallised at page 109 of the application book. The central contention is that the respondent’s actions in this case were unlawful by virtue of section 15(2) of the Disability Discrimination Act, the text of which is set out at page 30 of the application book, and that the case raises issues of public importance that require the resolution of the case by this Court.

In essence, the respondent imputed a disability to the applicant, being a histrionic personality disorder, a psychiatric disorder for the purposes of section 4(g) and (k) of the Disability Discrimination Act, the text of which is set out at page 29 of the application book. As a result of imputing that disability to the applicant, the respondent directed the applicant to attend a psychiatric assessment for the purposes of deciding whether she should be medically retired or her employment terminated for cause because of conduct which is summarised, and if I could take the Bench to this ‑ ‑ ‑

GUMMOW J: Just a minute. Section 5 is pretty important in this structure, is it not? We looked at that before, I think.

MR MOSES: Section 5, your Honour, is relevant to the comparator question which is the third issue which we raise in respect of the matter as well.

GUMMOW J: But that has been repealed, has it not? Is there a new section 5?

MR MOSES: It has been amended, your Honour. The legislature has amended section 5(1) of that Act to delete the words “the same” from the reference to whether or not a person has been treated in a matter different than what they would have treated a person without a disability.

GUMMOW J: Sorry, section 5(1)?

MR MOSES: Section 5(1) has been amended. It now reads:

For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not material different.

I think…

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.

Keep reading for free

Create a free CaseChat account to read Varas v Fairfield City Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] HCATrans 18
Decision Date

CaseChat Overview and Summary

The case of *Varas v Fairfield City Council* concerned a dispute between Mr. Varas and Fairfield City Council regarding the Council's decision to refuse Mr. Varas's development application for a childcare centre. Mr. Varas sought judicial review of this decision in the Supreme Court of New South Wales.

The primary legal issue before the Court was whether the Council's refusal of the development application was affected by jurisdictional error. Specifically, the Court had to determine if the Council had failed to take into account a relevant consideration or had taken into account an irrelevant consideration when making its decision, thereby vitiating the decision-making process.

The Court, comprising Gummow and Heydon JJ, analysed the Council's reasons for refusal and the relevant planning instruments. Their Honours found that the Council had indeed taken into account irrelevant considerations, namely concerns about traffic congestion that were not supported by evidence and were outside the scope of the planning controls applicable to the development. The Court affirmed the principle that a decision-maker must confine its considerations to those matters which the relevant legislation or planning instrument requires it to consider.

The Court concluded that the Council's decision was affected by jurisdictional error and accordingly made orders setting aside the Council's refusal of the development application.

Orders