Hurst v State of Queensland

Federal Court of Australia (Full Court)|2006-10-27|Before: Lander J, Weinberg JJ

the court 1 Judgment in this matter was delivered on 28 July 2006: Hurst v Queensland (2006) 151 FCR 562. The appellant, Tiahna Hurst, succeeded in her appeal to this Court in proceedings against the respondent under the Disability Discrimination Act 1992 (Cth) ("the Disability Discrimination Act"). The Court found that the respondent had discriminated against her, but left open the question whether, having regard to the unchallenged findings of the primary judge, she was entitled to any substantive relief. The Court stated (at [138]): "In addition, although Tiahna originally sought injunctive relief before Lander J, that claim seems to have been but faintly pressed both before his Honour and on appeal. There seems little likelihood that any such claim could now succeed, given the time that has now passed, and the state of the evidence led below. Nonetheless, we should give the parties an opportunity to be heard regarding the formal disposition of the claim for injunctive relief. That can be done by submissions in writing." 2 The parties have each filed written submissions regarding this issue. The appellant has gone further, and filed submissions now seeking general damages in the sum of $20,000, plus interest. The appellant submits, in the alternative, that the matter should be remitted to a single judge to determine what orders pursuant to s 46PO(4) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ("the HREOC Act") should be made. 3 There is no doubt that the Court is empowered to grant injunctive relief by s 46PO of the HREOC Act, as well as by ss 23 and 24(1)(a) of the Federal Court of Australia Act 1976 (Cth).

the respondent's contentions 14 The respondent submitted that the appellant was entitled to neither injunctive relief, nor any sum by way of compensation. It noted that the relevant contravention of the Disability Discrimination Act had ended on 30 May 2002. By that stage, the appellant had not yet begun formal grade school primary education. 15 The respondent drew attention to the fact that, when the appellant was in grade 1, at Coolum Beach Primary School, in March 2004, she received 13.75 hours of tuition in Auslan per week. That tuition was provided by an interpreter employed by the respondent. 16 The respondent identified a number of factors that told against the grant of injunctive relief. These included: · the fact that the order sought was in the nature of a quia timet injunction; · the time that had lapsed since the relevant contraventions had occurred; · the advancement that has since occurred in the appellant's education; · the absence of any evidence to suggest that the appellant's rights were presently threatened; · the vagueness of the injunction sought; · the fact that such contraventions as had been found did not extend to the failure to provide a full-time Auslan interpreter; and · the fact that no injunction was granted in relation to Ben Devlin, notwithstanding the primary judge's finding that he had been the victim of discrimination. 17 Turning to the question of compensation, the respondent submitted that no such order was warranted having regard to the primary judge's finding (at [825]-[826]), not challenged on appeal, that the appellant had not established any loss or damage. Indeed, as the respondent noted, his Honour went on to find (at [827]) that if compensation had to be assessed, it would be no more than "nominal". That finding too was not challenged on appeal. 18 The respondent added that it would not be appropriate to base any order for compensation upon the evidence given by the appellant's mother. The primary judge found (at [146]) that she was prone to exaggerate the complaints that she made, and that finding was not challenged on the appeal. 19 Finally, the respondent submitted that there could be no proper comparison between the appellant and the complainant in Clarke. In that case, the compensation was driven by the intellectual isolation and social alienation established by the evidence. None of those factors was present here.

conclusion 20 The starting point in considering the appellant's application for injunctive relief is to note that what is sought is a quia timet injunction. That is, what the appellant seeks is an injunction to prevent or restrain an apprehended or threatened wrong which would result in substantial damage if committed. 21 In quia timet proceedings, the court will have regard to the degree of probability of apprehended injury, the degree of the seriousness of the injury, and the requirements of justice between the parties. In R v Macfarlane; Ex parte O'Flanagan and Ex parte O'Kelly (1923) 32 CLR 518 Isaacs J observed (at 539): "The Court is not entitled to apply the obstacle of injunction to the contemplated action of a co-ordinate branch of the Government unless not only a case of clear illegality, proved to be calculated to result in a clear injury, is established, but also it is shown that by no other means can injury be averted or sufficiently compensated for." 22 Dr I C F Spry, in The Principles of Equitable Remedies: Specific Performance, Injunctions, Rectification and Equitable Damages (2001, 6th ed), comments (at 378) that quia timet injunctions are not granted unless the imminence of the act to be prohibited is sufficiently clearly established to justify the court's intervention. The fact that there is no breach presently occurring may make it more difficult, as a matter of evidence, to establish that there is a sufficient risk of a future injury to justify the immediate grant of an injunction. If, in all the circumstances, the likelihood that an injury will take place is not sufficiently high, quia timet relief will be refused. The applicant will be left either to avail himself or herself of such other remedies as may be open, or else to renew his or her application should the likelihood of an injury subsequently increase sufficiently to render equitable intervention appropriate. 23 Neither the evidence before the primary judge, nor the evidence subsequently adduced before this Court, sufficiently establishes the likelihood of a future contravention of the appellant's rights. That of itself is an adequate basis for the refusal of the injunction sought. 24 However, there are other sound reasons for denying injunctive relief. More than four years have now passed since the relevant acts of discrimination occurred. The circumstances that existed in May 2002 have altered considerably. The appellant is now at a different stage of her development. The education services that she might require, and those that the respondent is presently prepared to offer, differ considerably from those that were available at the time of the contraventions of the Disability Discrimination Act. 25 We also agree with the respondent that the injunction now sought imposes significantly more obligations upon the respondent than the evidence before the primary judge would warrant. His Honour was not asked to find that the appellant had been discriminated against because she had not been provided with a "full-time" Auslan interpreter. The relevant condition, as identified by his Honour (at [85]), was that that she accept and receive "instruction in English without the assistance of an Auslan teacher or an Auslan interpreter". An order requiring the respondent to provide her with "full-time" Auslan interpreting services, for an indefinite period, at apparently any location, seems to us to be beyond the scope of any powers conferred by s 46PO(4) of the HREOC Act. It also goes well beyond what the evidence accepted by the primary judge would allow this Court to do. 26 With regard to the appellant's claim for compensation, it is sufficient simply to observe that there was no challenge, on the appeal to this Court, to the primary judge's finding (at [825]-[826]) that she had not established any loss or damage. Equally, there was no challenge to his Honour's finding (at [827]) that if compensation had to be assessed it would be no more than nominal. In these circumstances, there is no basis upon which this Court should order general damages. We agree with the respondent's remaining contentions on this point. 27 It follows that neither injunctive relief nor compensation by way of damages should be ordered. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Court.

Counsel for the Appellant: Mr J W K Burnside QC with Mr J D Gray

Counsel for the Respondent: Mr R G Bain QC with Mr C J Murdoch

Date of Submissions: 18 and 29 August 2006

Human Rights and Equal Opportunity Commission Act 1986(Cth)ss 46PO, 46PO(4)

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