Access For All Alliance (Hervey Bay) Inc v Hervey Bay City Council

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 02 May 2007
• Neutral Citation: [2007] FCA 615

FEDERAL COURT OF AUSTRALIA

Access For All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2007] FCA 615

PRACTICE AND PROCEDURE – summary dismissal – O 20 r 2 Federal Court Rules – whether applicant has standing – nature of rights sought to be enforced – whether private rights or public rights conferred – no consent of the Attorney-General sought to commence proceedings – whether statue confers rights such that applicant has standing

DISCRIMINATION – standing under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) – s 46P – whether applicant “person aggrieved” – disability discrimination – access to public transport infrastructure – applicant incorporated association – whether incorporated association has standing - test of “aggrieved person” in the context of the HREOC Act – whether composition of the applicant’s members relevant – whether special interest in the proceedings beyond that of an ordinary member of the public

PRACTICE AND PROCEDURE – whether acceptance of complainant by HREOC established standing as “aggrieved person” for the purposes of proceedings before the Court

DISCRIMINATION – whether “equivalent access” provisions of the Disability Standards are to be raised as a defence to a finding of discrimination

Held: Standing is to be determined by reference to whether the applicant is a “person aggrieved” in s 46P HREOC Act. Applicant does not have standing. Merely incorporating an association and giving voice to objects is not sufficient to create standing. The interests of the members of the body corporate do not equate with the interests of the body corporate. Applicant is not “aggrieved” in its own right. Applicant may not derive a special interest or status of “person aggrieved” from its members.

Acts Interpretation Act 1901 (Cth) s 15AA

Disability Discrimination Act 1992 (Cth) s 31, s 32

Federal Court of Australia Act 1976 (Cth) Pt IVA

Human Rights and Equal Opportunity Commission Act 1986 (Cth) ss 3, 46P, 46PB, 46PO

Federal Court Rules O 20 r 2

Access for All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2004] FMCA 915 cited

Allan v Development Allowance Authority (1998) 80 FCR 583 cited

Allan v Transurban City Link Ltd (2001) 208 CLR 167 cited

Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd (1994) 49 FCR 250 cited

Anderson v Commonwealth of Australia (1932) 47 CLR 50 cited

Attorney-General (Gambia) v N’Jie [1961] AC 617 cited

Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 applied

Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 cited

Boyce v Paddington Borough Council [1903] 1 Ch 109 cited

Britannic Merthyr Coal Company Ltd v David [1910] AC 74 cited

Bropho v State of Western Australia [2004] FCA 1209 cited

Campbell v University of New South Wales (1992) 44 IR 56 cited

Central Queensland Speleological Society v Central Queensland Cement (No 1) [1989] 2 Qd R 512 considered

Cooper v Human Rights & Equal Opportunity Commission (1999) 93 FCR 481 cited

Dajon Investments Pty Ltd v Talbot [1969] VR 603 cited

Davis v Commonwealth (1986) 68 ALR 18 cited

Defence Coalition against RCD Inc v Minister for Primary Industries and Energy (1997) 74 FCR 142 considered

Dey v Victorian Railways Commissioners (1949) 78 CLR 62 cited

Executive Council of Australian Jewry v Scully (1998) 79 FCR 537 distinguished

Farley & Lewers Ltd v AG [1963] NSWR 1624 cited

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 cited

Gooley v Westpac Banking Corporation (1995) 129 ALR 628 cited

Gouriet v Attorney-General [1978] AC 435 cited

Grand Central Car Park Pty Ltd v Tivoli Freeholders [1969] VR 62 cited

Groves v Lord Wimborne [1898] 2 QB 402 cited

“GS” v News Ltd (1998) Aust Torts Reports 81-466 cited

Koowarta v Bjelke-Petersen (1982) 153 CLR 168 cited

Mallinson v The Scottish Australian Investment Company Ltd (1920) 28 CLR 66 cited

Manuka Business Association Inc v The Australian Capital Territory Executive and Minister for the Environment, Land and Planning [1998] ACTSC 86 distinguished

National Trust of Australia (Vic) v Australian Temperance and General Mutual Life Assurance Society Ltd [1976] VR 592 distinguished

North Coast Environment Council Inc v Minister for Resources (1994) 127 ALR 617 distinguished

Ogle v Strickland (1987) 13 FCR 306 cited

Onesteel Manufacturing Pty Ltd v Whyalla Red Dust Action Group Inc (2006) SASC 114 considered

Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 cited

Phillips v Britannia Hygienic Laundry Co Ltd [1923] 2 KB 832 cited

Potter v Ferguson [1979] 1 NSWLR 364 cited

Re Adams and the Tax Agents’ Board (1976) 12 ALR 239 cited

Re East, ex parte Nguyen (1998) 196 CLR 354 cited

Ricegrowers Co-operative Mills Ltd v Bannerman (1981) 56 FLR 443 cited

Right To Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 56 FCR 50 applied

Robinson v Western Australian Museum (1977) 138 CLR 238 cited

Shop Distributive and Allied Employees Association v Minister for Industrial Affairs of the State of South Australia (1995) 183 CLR 552 cited

SS Constructions Pty Ltd v Ventura Motors Pty Ltd [1964] VR 229 cited

Stephenson v Human Rights and Equal Opportunity Commission (1996) 68 FCR 290 cited

Stokes v Royal Flying Doctor Service [2003] FMCA 164 cited

Tasmanian Conservation Trust Inc v Minister for Resources (1995) 127 ALR 580 distinguished

Thorne v Doug Wade Consultants Pty Ltd [1985] VR 433 cited

Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 54 FLR 421 cited

Truth About Motorways Pty Ltd v Macquarie Infrastructure Management Ltd (1999) 200 CLR 591 cited

United States Tobacco Company v Minister for Consumer Affairs (1988) 20 FCR 520 cited

University of Newcastle v Chopra (1989) 85 ALR 321 cited

Victorian Chamber of Manufactures v The Commonwealth (1943) 67 CLR 335 cited

Western Australia v Ward (2002) 213 CLR 1 cited

Wool Sliping and Scouring Co Ltd v Central Wool Committee (1920) 28 CLR 51 cited

Stein LA (ed), Locus Standi (Law Book Company, 1979)

ACCESS FOR ALL ALLIANCE (HERVEY BAY) INC v HERVEY BAY CITY COUNCIL

QUD76 OF 2006

COLLIER J

2 MAY 2007

BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD76 OF 2006

BETWEEN:	ACCESS FOR ALL ALLIANCE (HERVEY BAY) INC Applicant
AND:	HERVEY BAY CITY COUNCIL Respondent

JUDGE:	COLLIER J
DATE OF ORDER:	2 MAY 2007
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

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.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD76 OF 2006

BETWEEN:	ACCESS FOR ALL ALLIANCE (HERVEY BAY) INC Applicant
AND:	HERVEY BAY CITY COUNCIL Respondent

JUDGE:	COLLIER J
DATE:	2 MAY 2007
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1 Before me is an application filed 19 August 2005, by the respondent to the substantive proceedings, seeking orders that:

· the application in the substantive proceedings be dismissed

· the applicant pays the respondent’s costs of and incidental to the application.

2 The respondent seeks dismissal of the substantive proceedings pursuant to O 20 r 2 Federal Court Rules.

3 The application in the substantive proceedings was originally filed in the Federal Magistrates Court. Following the filing and service of a notice on the applicant by the respondent pursuant to s 78B Judiciary Act 1903 (Cth) asserting that the Federal Parliament did not have power under the Constitution to enact s 31(1)(d)(ii), (v) and (vii) Disability Discrimination Act 1992 (Cth) (“DD Act”) or, in the alternative, to enact the Disability Standards for Access to Public Transport 2002 (“Disability Standards”) insofar as they purported to apply to the Hervey Bay City Council, the matter was transferred by consent to the Federal Court of Australia on 22 November 2005. However, at the hearing before me on 5 September 2006 the matter was adjourned in respect of this notice, because the respondent had not complied with prescribed requirements of service on a number of Attorneys-General. Accordingly, the sole issue with which I am concerned at present is whether the application originally filed 5 May 2005 and subsequently amended by an amended application filed 7 November 2005 should be dismissed pursuant to O 20 r 2 Federal Court Rules.

4 For convenience, I will continue to refer to the applicant to the substantive proceedings as “the applicant” in this judgment, and the respondent to the substantive proceedings as “the respondent”.

5 I note that Acting Disability Discrimination Commissioner (“the Commissioner”) sought leave at the hearing of 5 September 2006 to appear in these proceedings as amicus curiae. On 5 September 2006 I granted the Commissioner both leave to appear and to make oral submissions in the proceedings.

Background

6 The applicant is incorporated under the Associations Incorporation Act 1981 (Qld). By its statement of claim it describes itself as a volunteer community group, established to ensure equitable and dignified access to all premises and facilities, whether public or private, to all members of the community.

7 The respondent is a body incorporated pursuant to s 35 Local Government Act 1993 (Qld) and is the local government authority responsible for the Hervey Bay municipality. As...