Case: Brannigan v Commonwealth of Australia [2000] FCA 1591 ; (2000) 110 FCR 566
Outcome: considered
Qantas sought an order that the application, as filed, be dismissed summarily pursuant to s 17A of the FMC Act and r 13.10 of the FMC Rules on the basis that the applicant had no reasonable prospect of successfully prosecuting the proceeding. Qantas submitted that the applicant's complaint concerned conduct in India and the DDA had no extra-territorial operation. Qantas relied on Brannigan v Commonwealth of Australia [2000] FCA 1591 ; (2000) 110 FCR 566 which held that federal discrimination laws have no extra-territorial operation. The Federal Magistrate found that the 'entirety of the applicant's claim relates to his treatment at Mumbai Airport in India' and '[t]he discriminatory act upon which the applicant relies is the refusal of the Qantas Manager and other staff at Mumbai Airport to allow him to take all his baggage onto the aircraft without paying the excess baggage charge of some $600.00. This act occurred in India, not in Australia': at [124] and [128] of his reasons. The Federal Magistrate accepted that Brannigan was a correct statement of the law. His Honour accepted that the Court had no jurisdiction to hear a claim about alleged discrimination that arose in Mumbai and was confined to matters that occurred there. The application was dismissed on the ground that the applicant had no reasonable prospect of successfully prosecuting the proceeding: at [136] and [137] of his reasons. The applicant seeks leave to appeal from the judgment of the Federal Magistrates Court in respect of two matters: In relation to the first matter, the applicant raises a number of issues going to the construction and application of s 46PO(3) of the then HREOC Act and claims that by reason of errors made by his Honour in dealing with these issues, his Honour's exercise of the discretion in r 7.01 of the FMC Rules miscarried. In relation to the second matter, the applicant claims that his Honour failed to consider and give effect to various principles or provisions of the DDA and that he erred in concluding that the DDA had no extra-territorial effect. After reciting the terms of the claim in the original application, which are extracted in [2] above, his Honour said (at [124] and [128]): [124] In my view, the entirety of the Applicant's claim relates to his treatment at Mumbai Airport in India. In order for his claim to succeed, the Applicant must establish that the Disability Discrimination Act applies outside Australia. The Delegate of the President of the Human Rights and Equal Opportunity Commission dismissed the Applicant's claims on the basis that the Act did not apply extra-territorially, relying on the decision in Brannigan v Commonwealth of Australia. ... [128] The discriminatory act upon which the Applicant relies is the refusal of the Qantas Manager and other staff at Mumbai Airport to allow him to take all his baggage onto the aircraft without paying the excess baggage charge of some $600.00. This act occurred in India, not in Australia. In my view, his Honour's conclusion on this issue is not infected with any error. On the hearing of the leave application, the applicant submitted that it was not the case that his unamended application was confined to matters in Mumbai because it refers to the purchase of a ticket in early 2005 and a refusal by Qantas to reasonably accommodate his disability aids. These claims, it was submitted, raise issues broader than the conduct of Qantas in Mumbai. That may be so but it does not lead to the conclusion that any part of the discriminatory act originally complained of took place anywhere other than in India. The applicant further submitted on the hearing of the leave application that the Federal Magistrate: I reject all of these submissions. The first is not supported on the facts; the second was not particularised in any way; and the third is devoid of any reasoning process. Following upon what his Honour said at [128] of his reasons (see [34] above), at [129] his Honour said: [129] Unless he can show that the Disability Discrimination Act has an extra-territorial operation, the Applicant's claim cannot succeed. His Honour then considered various arguments by the applicant as to why Brannigan applies only to Commonwealth employees or matters relating to discrimination in employment and rejected these arguments. At [136] his Honour said: [136] I am satisfied that the decision in Brannigan clearly shows that this Court has no jurisdiction to hear a claim about discrimination that arose in Mumbai in India and is entirely confined to matters that occurred there. The Disability Discrimination Act has no extra-territorial effect. Had that been the intention of the legislature, then it would have been clearly stated in the legislation. I cannot identify any error in his Honour's process of reasoning. 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. 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. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds. Associate: Dated: 2 October 2009 Counsel for the Applicant: Mr P Batley Solicitor for the Applicant: Legal Aid New South Wales Counsel for the Respondent: Ms K Eastman Solicitor for the Respondent: Minter Ellison Date of Hearing: 17 September 2009 Date of Judgment: 2 October 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1121.html