Case: Access For All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2007] FCA 615
Outcome: related
When I delivered judgment in this matter on 2 May 2007 ( Access For All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2007] FCA 615) my orders were as follows: 1. The application filed by Access For All Alliance (Hervey Bay) Inc on 5 May 2005 be dismissed. 2. Access For All Alliance (Hervey Bay) Inc pay Hervey Bay City Council's costs of and incidental to the application, to be taxed if not otherwise agreed. 2 At that time, Ms Banks for the applicant, Access For All Alliance (Hervey Bay) Inc ("the applicant") said that the applicant sought to be heard on the issue of costs in respect of the proceedings, and asked if I could reconsider that aspect of my judgment in terms of giving the applicant an opportunity to be heard. Mr Green for the respondent neither consented to nor opposed this course. While it is usual that costs follow the event, in the circumstances of this case I indicated to the parties that I would entertain receiving written submissions from the applicant as to costs, and a written reply from the respondent, and gave orders to this effect. 3 The application filed 5 May 2005 concerned a claim by the applicant that the respondent had contravened the Disability Standards made pursuant to the Disability Discrimination Act 1992 (Cth) (DD Act) in respect of bus stop infrastructure installed or substantially changed since 23 October 2002, and sought relief against the respondent pursuant to s 46PO Human Rights and Equal Opportunity Act 1986 (Cth) (HREOC Act) and ss 31 and 32 DD Act. 4 The matter came before me on 5 September 2006 regarding an application filed 19 August 2005, by the respondent to the substantive proceedings, seeking orders that: &#8226; the application in the substantive proceedings be dismissed; and &#8226; the applicant pay the respondent's costs of and incidental to the application. 5 As I noted earlier, in my judgment I found in favour of the respondent and dismissed the application in the substantive proceedings with costs. 15 The applicant submits in summary: &#8226; The basis of the respondent's "strike out" claim, as found in its Statement of Facts and Contentions filed on 19 June 2006, was: 1. In the absence of an allegation of discrimination per se it was not possible for the Court to make a finding of unlawful conduct by the respondent. 2. The reference to equivalent access in the Disability Standards for Public Transport 2002 required that any allegation of a breach of the Standards be supported by evidence of discrimination. 3. The applicant required the Federal Attorney-General's consent to make a complaint of a breach of the Standards, which was the initiating process for the proceedings, or the Attorney-General should be the complainant. &#8226; in my judgment I dismissed all three contentions of the respondent ( Access For All Alliance [2007] FCA 615 at [22] - [34] , [70]-[73]) &#8226; the respondent did not in written submissions raise the contention that the applicant was not an "aggrieved person" or "affected person" for the purpose of s 46PO of the HREOC Act &#8226; while the applicant's application was dismissed, this was not a result of any contention or submission put by the respondent. Instead, the success of the respondent was based on the acceptance by the Court of the submissions filed by the Acting Disability Discrimination Commissioner ("the Commissioner"). 16 In summary, the respondent contends that: &#8226; although the relationship between the issue of standing and notions of "aggrieved person" or "affected person" for the purpose of s 46PO of the HREOC Act were not articulated in the written outline of submissions filed in support of the application, the relationship was properly developed in the course of oral argument on the day of the hearing &#8226; although some arguments put before the Court on behalf of the respondent in its application for summary dismissal were not accepted, this does not mean that the respondent was successful only in part or otherwise not successful. In this case, the application of the respondent for summary dismissal was wholly successful. 17 It is clear from my decision in Access For All Alliance [2007] FCA 615 that I did not accept a number of the respondent's submissions and that the submissions of the parties, in particular the written submissions, did not correspond with each other in that the parties raised quite different arguments in support of their positions. It is also clear that the submissions of the Commissioner were very helpful, in particular with regard to the issue of whether the rights which the applicant was seeking to assert were private or public rights, and with respect to issues relevant to "aggrieved person" in the meaning of the DD Act upon which my decision eventually turned. 18 In this case, the applicant had clearly anticipated that its standing would be a key issue and had made extensive written submissions on this point. However while it is true that the written submissions of the respondent focussed on issues of public as distinct from private rights, rather than standing under the DD Act, it is also the case that issues of standing under the DD Act in the context of whether the applicant was an "aggrieved person" were addressed at some length at the hearing by Mr Fleming QC for the respondent in oral submissions (TS QUD76/2006 5 September 2006 pp 16-21). As the respondent submitted (correctly in my view), submissions often take a more refined form when they are argued orally and with the benefit of outlines provided by opposing parties. It is this very process of opposing arguments which forms the basis of our adversarial system that assists courts in identifying and deciding the proper issues before it, and this is precisely what happened in this case. While clearly some arguments put before the Court by the respondent in its application for summary dismissal were not accepted, nonetheless it is not unusual for a successful party to advance a number of alternative arguments to the Court and be ultimately successful on only some of them. I agree with the respondent that this result does not mean that the respondent was "successful only in part" in this case. 28 Second, while I accept the submission of the applicant that its application was brought to effect change in the area of disability discrimination and could not be characterised as being for personal or financial benefit, I also note that the applicant commenced discrimination proceedings in the name of an incorporated association, where, as is clear from my judgment in Access For All Alliance [2007] FCA 615 , particularly at [47] [63], the weight of the case law is against such an organisation having standing to do so. The applicant has caused the respondent to incur costs in seeking to have these proceedings dismissed. 29 Third, although the objective of the applicant was to test the application of the Disability Standards in this case, and indeed the respondent had indicated that, had the litigation progressed, the constitutional validity of the Disability Standards would have been challenged, the issue actually in dispute between the parties at the time the case was dismissed was limited to the standing of the applicant to prosecute its claim at all. While this was an issue of considerable interest, and of importance to the parties in this case, the standing of entities such as the applicant to bring litigation of this nature cannot in my view be considered to be an issue of public interest so as to cause the Court to depart from the usual orders as to costs. 30 Fourth, as the judgment demonstrated, my decision was reached on the facts of the case before me, in light of the interpretation of the relevant legislation and consideration of the abundance of case law relevant to standing of incorporated associations to commence proceedings of this nature. Again, in my view these issues did not raise novel issues of law of public importance. 38 It appears that the respondent did attempt to engage with the applicant prior to the commencement of litigation and it is possible that the litigation in this case could have been avoided. However, one would expect that the same could be said in relation to almost all litigation. In relation to the respondent raising the issue of standing, as indicated in my judgment Access For All Alliance [2007] FCA 615 at [38] I did not accept the applicant's submissions at that time that the only avenue open to the respondent in the circumstances would have been to bring an application under the ADJR Act to challenge the acceptance by HREOC of the complaint. The standing of the applicant was addressed at the hearing by both parties, although not in written submissions by the respondent.