Vijayakumar v Qantas Airways Ltd - [2009] FCA 1121

FEDERAL COURT OF AUSTRALIA
Vijayakumar v Qantas Airways Ltd [2009] FCA 1121
PRACTICE & PROCEDURE – application for leave to appeal an interlocutory judgment of the Federal Magistrates Court – whether the decision is attended by sufficient doubt to warrant it being reconsidered – whether substantial injustice would result if leave were refused, supposing the decision is wrong – no useful purpose would be served by a grant of leave nor will the applicant suffer substantial injustice if leave is denied.
HELD: the application for leave to appeal be refused.
Federal Magistrates Court Act 1999 (Cth) s 17A
Human Rights and Equal Opportunity Commission Act 1986 (Cth) ss 46PH(1)(a) – (c), 46PO(3)
Disability Discrimination Act 1992 (Cth) ss 4, 5, 6, 7, 11, 12, 23, 24, 31, 32
Racial Discrimination Act 1975 (Cth) ss 9, 13
Disability Standards for Accessible Public Transport Guidelines 2002 (Cth)
Federal Magistrates Court Rules 2001 r 7.01, 13.10(a)
Brannigan v Commonwealth of Australia (2000) 110 FCR 566 considered
Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 referred to
Mastronardi v State of New South Wales [2007] NSWCA 54 referred to
NAIS v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 470 referred to
Ogawa v University of Melbourne (No 2) [2004] FCA 1275 referred to
Queensland v Forest (2008) 168 FCR 532 considered
TONY MAHESPARAM VIJAYAKUMAR v QANTAS AIRWAYS LIMITED
NSD 940 of 2009
EDMONDS J
2 OCTOBER 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 940 of 2009

BETWEEN:
TONY MAHESPARAM VIJAYAKUMAR
Applicant

AND:
QANTAS AIRWAYS LIMITED
Respondent

JUDGE:

EDMONDS J

DATE OF ORDER:

2 OCTOBER 2009

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The application be refused.
2.The applicant pay the respondent’s costs, as taxed or agreed.

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

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 940 of 2009

BETWEEN:
TONY MAHESPARAM VIJAYAKUMAR
Applicant

AND:
QANTAS AIRWAYS LIMITED
Respondent

JUDGE:

EDMONDS J

DATE:

2 OCTOBER 2009

PLACE:

SYDNEY

REASONS FOR JUDGMENT
INTRODUCTION

This is an application for leave to appeal from a judgment of the Federal Magistrates Court (Scarlett FM): Vijayakumar v Qantas Airways Limited [2009] FMCA 736, summarily dismissing an application pursuant to s 17A of the Federal Magistrates Court Act 1999 (Cth) (‘the FMC Act’) and r 13.10(a) of the Federal Magistrates Court Rules 2001 (‘the FMC Rules’) on the basis that the applicant had no reasonable prospect of successfully prosecuting the proceeding.
The applicant’s proceeding in the Federal Magistrates Court was an application under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (‘the HREOC Act’), now the Australian Human Rights Commission Act 1986 (Cth), alleging unlawful discrimination on the part of the respondent (‘Qantas’) in relation to the following conduct:
In early 2005 I purchased a return…

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: [2009] FCA 1121
Decision Date

CaseChat Overview and Summary

The applicant, Vijayakumar, sought leave to amend his application in the Federal Magistrates Court after his complaints to the Human Rights and Equal Opportunity Commission (HREOC) were terminated. The complaints, which were against Qantas Airways Ltd, alleged breaches of the Disability Discrimination Act (DDA) and the Racial Discrimination Act 1975 (RDA). The key issue before the court was whether the applicant could amend his application to include new claims that were not considered by HREOC. The court needed to determine whether the amendment was permissible under the then HREOC Act and whether it was appropriate to grant leave to amend the application.

The court considered the applicant's argument that the magistrate had erred in his approach to the extra-territorial issue, asserting that there was a distinction between discrimination in employment outside Australia and the application of the DDA to foreign corporations. However, the court found no error in the magistrate's conclusions and held that the proposed amendments raised new and different issues that were not subject to HREOC's consideration. The court further noted that the applicant's complaints had already been comprehensively reviewed and terminated by HREOC, and that granting leave to amend would not serve a useful purpose nor result in substantial injustice to the applicant.

The court dismissed the application for leave to amend, confirming that the magistrate's decisions on the extra-territorial issue and the timing of the complaint were correct. The court also noted that the applicant's complaints had been adequately considered by HREOC, and that there was no substantial injustice in refusing the application. The decision was made final with costs awarded against the applicant.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The application in the Federal Magistrates Court was in consequence of the termination of complaints lodged by the applicant with the Human Rights and Equal Opportunity Commission (‘HREOC’) alleging breaches of ss 5, 6, 11 and 24 of the DDA and ss 9 and 13 of the Racial Discrimination Act 1975 (Cth) (‘the RDA’).BACKGROUND On 23 March 2005, the applicant departed Sydney on a Qantas flight with 30 kgs of check-in baggage and carry-on baggage of unknown weight. At the time, Qantas permitted passengers to check in baggage up to 20 kgs. The applicant was permitted to check in 10 kgs over the limit of 20 kgs without additional charge and take carry-on baggage of unknown weight. On 8 June 2005, the applicant arrived at Mumbai airport in India. He attempted to check-in baggage weighing between 41 and 46 kgs of baggage. The additional baggage was not disability aids or equipment. The applicant said the additional items were shoes, a razor, books and souvenirs. The applicant was permitted to check in 26 kgs and take carry-on baggage of unknown weight. He was advised that he would need to pay excess charges for the remaining baggage. The applicant refused to pay for the excess baggage. On 17 July 2006, the applicant lodged a complaint form with HREOC alleging, inter-alia, that Qantas and two of its employees discriminated against him in Sydney and in Mumbai on the ground of race and disability (an injury to his left knee, arm and a sleep disorder). On 11 May 2007, the Delegate of the President of HREOC terminated those complaints on the following grounds:(1)The alleged racial discrimination and disability discrimination by Qantas and Mr Sundaram (a staff member of Qantas) in Mumbai on 8 June 2005 did not amount to unlawful discrimination. HREOC considered that the DDA and the RDA had no extra-territorial effect. This aspect of the complaint was terminated pursuant to s 46PH(1)(a) of the then HREOC Act;(2)the alleged disability discrimination claim against Qantas in Sydney in March 2005, was terminated pursuant to s 46PH(l)(b) of the then HREOC Act because the complaint was lodged more than 12 months after the alleged act took place; and(3)the alleged disability discrimination claim against Qantas and Mr Mauger in Sydney in July 2005 was terminated pursuant to s 46PH(1)(c) of the then HREOC Act because the complaint was lacking in substance. On 8 June 2007, the applicant filed an application in the Federal Magistrates Court. Section 46P0(3) of the then HREOC Act requires the ‘unlawful discrimination’ alleged in the application:(a)To be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or(b)arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint. On 23 August 2007, the applicant informed Qantas that he would seek leave to amend his application. The proposed amended application raised new and different issues to the complaint terminated by HREOC. The applicant claimed that Qantas unlawfully discriminated against him in the provision of services (s 24) and access to premises (s 23) on the ground of his disability under the DDA. The applicant also claimed that Qantas failed to comply with the Disability Standards for Accessible Public Transport Guidelines 2002 (Cth) in breach of s 32 of the DDA.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

EDMONDS J

On the hearing of the leave application, the applicant submitted that his Honour erred in his approach to the extra-territorial issue. It was submitted that a distinction was to be drawn between discrimination in employment by the Commonwealth occurring outside Australia with which Brannigan was concerned, and the application of the DDA to foreign corporations, trading or financial corporations or trade or commerce between Australia and a place outside Australia. According to the applicant, his Honour took Brannigan too far by treating it as having conclusively determined that the DDA can never be concerned with conduct occurring outside Australia. I do not agree, nor do I agree with the applicant’s submission that his Honour ought to have left the complex legal issues raised by the extra-territorial issue to be argued in full at a hearing on the merits.CONCLUSION In conclusion, I am of the view that his Honour’s conclusions on the two matters sought to be raised on appeal are not infected with any error and that even though a refusal of leave may effectively put an end to the applicant’s substantive rights, no useful purpose would be served by a grant of leave, nor would the applicant suffer substantial injustice. The applicant’s complaints have already been considered on a comprehensive basis by HREOC and terminated. The application must be refused with costs.

Ratio Decidendi

Legal Principle Established

Established by: EDMONDS J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 940 of 2009

BETWEEN:	TONY MAHESPARAM VIJAYAKUMAR Applicant
AND:	QANTAS AIRWAYS LIMITED Respondent

JUDGE:	EDMONDS J
DATE OF ORDER:	2 OCTOBER 2009
WHERE MADE:	SYDNEY

JUDGE:	EDMONDS J
DATE:	2 OCTOBER 2009
PLACE:	SYDNEY