Budini v Sunnyfield

• Jurisdiction: Australia Federal only
• Judge: CHARLESWORTH J
• Judgment Date: 20 December 2019
• Neutral Citation: [2019] FCA 2164
• Date: 20 December 2019
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Budini v Sunnyfield [2019] FCA 2164

File number:	SAD 266 of 2018
Judge:	CHARLESWORTH J
Date of judgment:	20 December 2019
Catchwords:	HUMAN RIGHTS – discrimination – application for leave to commence a proceeding alleging unlawful discrimination in contravention of the Disability Discrimination Act 1992 (Cth) – where a complaint of discrimination was terminated by the Australian Human Rights Commission under s 46PH(1)(b) of the Australian Human Rights Commission Act 1986 (Cth) by reason of delay between the events complained of and the lodging of the complaint – whether the second applicant is an “affected person” having standing to apply for leave – consideration of matters affecting the discretion to grant leave – relevance of delay to the exercise of the discretion – length of delay – whether second applicant reasonably able to formulate and lodge a complaint on behalf of the first applicant at an earlier time – whether the proposed claim has reasonable prospects of success – consideration of multiple claims of unlawful discrimination separately and accumulatively – consideration of other factors relevant to the exercise of the discretion – leave refused
Legislation:	Australian Human Rights Commission Act 1986 (Cth) ss 3, 46P, 46PH, 46PO, Pt IIB Disability Discrimination Act 1992 (Cth) Evidence Act 1995 (Cth) s 191 Human Rights Legislation Amendment Act 2017 (Cth) s 39 Federal Court Rules 2011 (Cth) rr 9.63, 26.01, 34.163
Cases cited:	Access For All Alliance (Hervey Bay) Inc v Hervey Bay City Council (2007) 162 FCR 313 Barnes v Addy LR 9 Ch App 244 James v WorkPower Inc [2018] FCA 2083 Munday v Commonwealth (No 2) (2014) 226 FCR 199
Date of hearing:	12 February, 18 February 2019
Date of last submissions:	3 December 2019: Respondents 10 December 2019: Applicants
Registry:	South Australia
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	180
Counsel for the Applicants:	Mr T Hurren
Solicitor for the Applicants:	Harmers Workplace Lawyers
Counsel for the Respondents:	Mr E Belperio
Solicitor for the Respondents:	Clayton Utz

Table of Corrections
14 July 2020	In paragraph 66 line four “explanation marks” has been replaced with “exclamation marks”

ORDERS

		SAD 266 of 2018
BETWEEN:	ENRICA BUDINI First Applicant ; MICHAEL BUDINI Second Applicant
AND:	SUNNYFIELD ACN 000415127 First Respondent ; MARK CLAYTON Second Respondent

JUDGE:	CHARLESWORTH J
DATE OF ORDER:	20 DECEMBER 2019

THE COURT ORDERS THAT:

1. The applicants’ interlocutory application dated 22 October 2018 is dismissed.

2. All parts of the amended originating application seeking relief under the Australian Human Rights Commission Act 1986 (Cth) for contraventions of the Disability Discrimination Act 1992 (Cth) are struck out.

3. Any application for a person to be appointed as the first applicant’s litigation representative in respect of any remaining cause of action to be pursued by her is to be filed and served on or before 7 February 2020.

4. In the event that the second applicant makes an application to act as the first applicant’s litigation representative, the application is to be accompanied by an affidavit specifying which remaining causes of action are intended to be pursued on behalf of the second applicant in his own name and right.

5. In the event that any application filed pursuant to the order in paragraph 3 is opposed by the respondents, the respondents are to file and serve any affidavit upon which they seek to rely on or before 21 February 2020.

6. The matter be set down for a case management hearing on a date to be fixed.

7. On or before 7 February 2020, the respondents are to inform the Court of any contention that the presiding judge should not be disqualified.

8. The respondents’ application for costs be set down for hearing at 10:00am on 27 February 2020.

9. On or before 13 February 2020, the respondents are to file and serve any material on which they seek to rely on their application for costs.

10. On or before 20 February, the applicants are to file and serve any material in response.

11. Liberty to apply.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

CHARLESWORTH J:

1. This is an application under s 46PO(3A)(a) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) for leave to commence a proceeding alleging contraventions of the Disability Discrimination Act 1992 (Cth) (DD Act).

2. The amended originating application alleges causes of action other than contraventions of the DD Act, including tort, contract and alleged contraventions of the Australian Consumer Law. To the extent that the action includes a proposed claim founded on unlawful discrimination on the ground of disability, I will refer to it as the DD proceeding. Leave is not required to commence a proceeding founded on the other causes of action.

3. The first applicant, Ms Enrica Budini (also known as Ricky) suffers from a series of intellectual and developmental disabilities. A leave application is brought on her behalf by her nephew and legal guardian Michael Budini. For the purposes of the leave application, Michael Budini acts as Ms Budini’s litigation representative. He is also named as the second applicant. In addition to seeking relief on behalf of Ms Budini, he seeks leave to commence the DD proceeding in his own name and right so as to obtain an award of damages payable to him personally for what appears to be an alleged personal injury in the nature of psychiatric illness arising out of the respondents’ acts and omissions.

4. For the reasons that follow, I have determined that Michael Budini does not have standing to make an application for leave to bring a proceeding under the AHRC Act on his own behalf for a personal remedy. If I am wrong in that conclusion, I would nonetheless refuse his application for leave. The application for leave made on Ms Budini’s behalf should also be dismissed.

5. As a consequence, orders should be made striking out those parts of the amended originating application alleging an entitlement to remedies for unlawful discrimination in contravention of the DD Act.

BACKGROUND Evidence and agreed facts

6. The following facts are extracted from a statement of agreed facts (SOF) signed by the parties for the purposes of s 191 of the Evidence Act 1995 (Cth):

1 Enrica Budini

1.1 The first Applicant Enrica Budini (Ms Budini) was born on 29 May 1959 and is 59 years of age.

1.2 Ms Budini is an Australian citizen.

1.3 Ms Budini is the aunt of the second Applicant Mr Michael Budini (Michael Budini).

1.4 Ms Budini has Down Syndrome.

1.5 Ms Budini's Down Syndrome includes a permanent intellectual disability, developmental delay and certain physical disabilities.

2 Ms Budini’s finances

2.1 Ms Budini is the primary beneficiary of a trust established in or about September 2005 to sustain her (Trust).

2.2 Perpetual Trustee...