Wood v Lee-Joe - [2014] FCCA 309

FEDERAL CIRCUIT COURT OF AUSTRALIA

WOOD v LEE-JOE

[2014] FCCA 309

Catchwords:
HUMAN RIGHTS – Application for interim injunction under s.46PO(6) of the Australian Human Rights Commission Act1986 (Cth) based on alleged contravention of s.25(2)(b) of the Disability Discrimination Act 1999 (Cth) – whether carer has standing to make an application under s.46PO(1) of the Australian Human Rights Commission Act1986 (Cth) on behalf of the person claiming disability – whether s.12(8) of the Disability Discrimination Act 1999 (Cth) denies the Court jurisdiction to deal with an application for discrimination based on contravention of s.25(2)(b) of the Disability Discrimination Act 1999 (Cth) – whether prima facie case of unlawful discrimination based on contravention of s.25(2)(b) of the Disability Discrimination Act 1999 made out – whether balance of convenience favours the granting of injunction – application refused.

Legislation:

Australian Human Rights Commission Act1986 (Cth) ss.3, 46PH, 46PO, 46PP

Commonwealth Constitution, s.51(xxix)

Disability Discrimination Act 1999, ss.4, 12, 25

Sex Discrimination Act 1984 (Cth), ss.9, 28

Aldridge v Booth (1988) 80 ALR 1
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148
Harry Wood For Elsie Lynne Neilson v Andrew Mark Lee-Joe [2013] FCCA 1665
Kolback Securities v Epoch Mining NL (1987) 8 NSWLR 533

Applicant:

HARRY WOOD, CARER FOR MISS ELSIE LYNNE NEILSON

Respondent:

ANDREW MARK LEE-JOE

File Number:

SYG 225 of 2014

Judgment of:

Judge Manousaridis

Hearing date:

19 February 2014

Date of Last Submission:

20 February 2014

Delivered at:

Sydney

Delivered on:

24 February 2014

REPRESENTATION

Solicitor for the Applicant:

Dr Spence

Counsel for the Respondent:

Mr Brennan

Solicitor for the Respondent:

Ms Keith

ORDERS

The interlocutory application filed in the Federal Court on 3 January 2014 for an order that the orders made by this Court on 22 October 2013 be renewed is dismissed.
Subject to paragraph 3, the costs of the application are reserved.
The respondent have liberty to apply on seven days notice for such order as to the costs of the application as the respondent may be advised to make.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 225 of 2014

HARRY WOOD, CARER FOR MISS ELSIE LYNNE NEILSON

Applicant

And

ANDREW MARK LEE-JOE

Respondent

REASONS FOR JUDGMENT

Introduction

On 22 October 2013 I granted the applicant, Mr Harry Wood, as carer for Ms Elsie Lynne Neilson, an injunction restraining the respondent, Mr Lee-Joe, from taking steps to evict Mr Wood from premises he and Ms Nielson occupy at Unit 9, 11-13 Pittwater Road, Manly (Unit).[1] Mr Lee-Joe is the registered proprietor of the Unit. I granted the injunction under s.46PP(1) of the Australian Human Rights Commission Act 1986 (Cth) (Act) in aid of a complaint Mr Wood lodged with the Australian Human Rights Commission (Commission), and for a period ending on the day on which Mr Wood’s complaint to the Commission was to be terminated under s.46PH of the Act.

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: [2014] FCCA 309
Decision Date: 24 February 2014

CaseChat Overview and Summary

In the Federal Court of Australia, the applicant, Ms. Wood, sought an interim injunction against the respondent, Mr. Lee-Joe. The dispute concerned an alleged contravention of section 25(2)(b) of the *Disability Discrimination Act 1999* (Cth), which relates to the provision of services to a person with a disability. Ms. Wood, acting as a carer, sought to bring the application on behalf of the person claiming disability.

The court was required to determine several key legal issues. Firstly, it had to consider whether a carer possesses the legal standing to make an application under section 46PO(1) of the *Australian Human Rights Commission Act 1986* (Cth) on behalf of a person alleging discrimination due to disability. Secondly, the court examined whether section 12(8) of the *Disability Discrimination Act 1999* (Cth) operated to divest the court of jurisdiction to hear an application alleging a contravention of section 25(2)(b) of that Act. Finally, the court assessed whether a prima facie case of unlawful discrimination had been established and whether the balance of convenience favoured the granting of an interim injunction.

Justice Manousaridis reasoned that the carer did not have standing to bring the application under section 46PO(1) of the *Australian Human Rights Commission Act 1986* (Cth) as the Act requires the application to be made by the person aggrieved. Furthermore, the court found that section 12(8) of the *Disability Discrimination Act 1999* (Cth) did not preclude the court from dealing with the application, as it did not deny jurisdiction. However, as no prima facie case of discrimination was made out, and the balance of convenience did not favour the applicant, the application for an interim injunction was refused.

Orders