The proceedings in this Court
18 Directions were made by this Court on 5 July 2016 for the application for an extension of time, leave to appeal and any appeal to be heard together on 27 September 2016.
19 The respondent did not oppose time being extended. The relevant principles are described in numerous cases, including in MZZMQ v Minister for Immigration and Border Protection [2015] FCA 557 at [33]-[35] per Katzmann J. It is unnecessary to repeat those principles here. I am satisfied that it is appropriate to extend time.
20 Nor did the respondent oppose the application for leave to appeal. The relevant principles are discussed in cases such Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; 217 FCR 238 at [26]-[34] per Dowsett, Foster and Yates JJ and Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; 33 FCR 397. Having regard to those guiding principles, I am satisfied that leave to appeal should be granted.
21 This then requires primary attention to be focussed on the substance of the appeal itself, to which I now turn.
22 The appeal is against the decision of the primary judge which was arrived at in the exercise of her Honour's discretion under r 21.03 of the FCCRs. Accordingly, the appeal attracts the following well-known principles established in House v The King [1936] HCA 40; 55 CLR 499 (House) at 504-505 per Dixon, Evatt and McTiernan JJ (citations omitted):
… The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. Unlike courts of criminal appeal, this court has not been given a special or particular power to review sentences imposed upon convicted persons. Its authority to do so belongs to it only in virtue of its general appellate power. But even with respect to the particular jurisdiction conferred on courts of criminal appeal, limitations upon the manner in which it will be exercised have been formulated. Lord Alverstone L.C.J. said that it must appear that the judge imposing the sentence had proceeded upon wrong principles or given undue weight to some of the facts (R. v. Sidlow). Lord Reading L.C.J. said the court will not interfere because its members would have given a less sentence, but only if the sentence appealed from is manifestly wrong (R. v. Wolff). Lord Hewart L.C.J. has said that the court only interferes on matters of principle and on the ground of substantial miscarriage of justice (R. v. Dunbar). See, further, Skinner v. The King and Whittaker v. The King.
23 It is important to emphasise that the appellant carries the burden of demonstrating that there is some error in the exercise of the primary judge's discretion and it is insufficient that, if I had been in the primary judge's position, I might have taken a different course.
24 Ground 1 of the notice of appeal claims that the primary judge erred in law in failing to take the following relevant and material considerations into account:
(a) the aspect of the public interest nature of the proceeding in it being an opportunity to improve educational and employment opportunities for deaf and hearing impaired people;
(b) the appellant's substantive case in the proceeding is arguable and is not frivolous or vexatious;
(c) the timing of the application in the proceeding;
(d) the application seeks an order that would not just cap the appellant's costs exposure, but also that of the respondent's costs exposure;
(e) the primary orders sought by the appellant are declaratory orders and she does not seek any financial compensation; and
(f) the appellant has conducted the proceeding in a manner to facilitate a just resolution as quickly, inexpensively and efficiently as possible,
in circumstances where the respondent had conceded that these considerations supported the application for a maximum costs order (save for (a)).
25 The respondent did not dispute that it had conceded below that all these considerations, except for (a), were relevant.
26 I cannot accept the appellant's contention that all the matters set out in [24] above were viewed by the primary judge as being irrelevant or were not taken into account. Her Honour noted the appellant's submission that the relevant considerations were common ground and each of them is set out in [13] of her Honour's reasons for judgment. Her Honour then focused on the three relevant considerations which were not conceded by the respondent. Contrary to the appellant's contention, this does not mean that the uncontested matters were not taken into account by the primary judge. It is significant that in [52] of her reasons for judgment, in stating her conclusion, the primary judge made an express reference to having had regard "to the overall interests of justice, and in seeking to balance all the factors relevant to the exercise of the Court's discretion" (emphasis added). Accordingly, I am conformably satisfied that in fact the primary judge did take into account and balance the considerations identified in ground 1 of the notice of appeal. Contrary to the appellant's contention, the primary judge was not obliged to quantify the weight she gave to any particular relevant consideration. Moreover, it is readily apparent from her Honour's reasons for judgment and, in particular [50] and [51] which matters weighed most heavily in the primary judge's balancing of their various relevant considerations.
27 With specific reference to the topic of the public interest nature of the proceeding, her Honour summarised the appellant's submissions and referred to the authorities which were relied upon. Her Honour then expressed her conclusions on this topic in [36] to [39]:
36. Based on the evidence before me, I am satisfied that the applicant's complaints are confined to her dissatisfaction with the adjustments that were made by her education provider. If those adjustments are found to have been reasonable in all the circumstances or cause the respondent unjustifiable hardship, then there has been no breach of the DDA.
37. In the circumstances, any public interest is very limited and not encompassed, other than in the most minor and general way, in the broad statement by the applicant that public interest was to be found in "the opportunity to improve education and employment opportunities for deaf and hearing impaired people".
38. On the evidence before me, there is an allocation of funds available to TAFE Illawarra Institute by the respondent to assist deaf and hearing impaired students and it was not suggested that that allocation is not adequate. Further, it was not suggested that all deaf and hearing impaired students would require a note-taker. This is not a case where the respondent has failed to provide any adjustments to the applicant or to deaf and hearing impaired students generally. Moreover, in relation to the applicant, it was not the only adjustment made. The applicant was provided with an Auslan interpreter and individual tutoring. The applicant successfully completed her Diploma course with those adjustments.
39. … The applicant's complaint is individual to her own specific circumstances. In such circumstances, any public interest that may be found to exist is, in my view, extremely limited.
28 In the light of these extracts, there is no foundation for the claim that the primary judge regarded the claimed public interest nature of the substantive proceeding as irrelevant or, alternatively, did not take it into account. This matter plainly was considered by her Honour, but was viewed by her as being outweighed by other matters (again, see [52] of the primary judge's reasons for judgment).
29 As to the legal and factual complexity in the proceeding, at [40] of the reasons for judgment below her Honour rejected the appellant's submission that this was not a case of significant complexity, factually or legally. Her Honour did so by reference to the matters set out in [41] of her reasons, which are summarised in [15] above. Accordingly, the primary judge did have regard to these matters and the appellant's claim to the contrary must be rejected.
30 The third matter relates to the appellant's financial circumstances and her intentions if the maximum costs application were unsuccessful. Again, it is plain by reference to the primary judge's reasons for judgment that she viewed these matters as relevant and took them into account, but considered that they were outweighed by other considerations. The primary judge's consideration of these matters is summarised in [16] above. Her Honour made express reference in [43] to the appellant's stated intention to abandon the proceeding if the maximum costs order was not made. It is also to be noted that, at [49], the primary judge expressly stated that the appellant might abandon the proceeding in the light of the costs estimates advanced in the respondent's evidence, which evidence was preferred. Again, it can be inferred from [52] of her Honour's reasons that these matters were weighed in the balance with other relevant matters. I reject the appellant's contention that the primary judge gave no consideration at all to the undesirability of her being forced to abandon the proceeding if the maximum costs order was not made.
31 Ground 2 in the notice of appeal is that the primary judge erred by taking into account an irrelevant consideration and/or by misconstruing the appellant's substantive case in that:
(a) she did not plead unlawful direct discrimination in contravention of s 5 of the DD Act;
(b) nor did she plead unlawful direct discrimination in the area of the provision of services, pursuant to s 24 of the DD Act.
32 During the course of oral address in the appeal, the appellant's counsel stated that ground 2 was not pressed. Accordingly, it is unnecessary to say anything further about either aspect of it.
33 Ground 3 of the notice of appeal claims that the primary judge erred by exercising her discretion on the basis of an incorrect legal principle and/or by misconstruing the DD Act because the appellant's substantive case was not one which claimed that the respondent had failed to provide any adjustments to the appellant individually or to deaf and hearing impaired students generally.
34 In support of this ground of appeal, the appellant submitted that the primary judge failed to consider the true nature of her substantive case, or its merits and prospects, when her Honour found that "the prospects of success of the appellant are no more than barely arguable and I would presently assess as low". It was also submitted that, in [36] and [38] of her Honour's reasons for judgment, the primary judge had misstated the relevant principles when she said that if it were found that the adjustments which had been provided to the appellant by the respondent had been reasonable in all the circumstances or cause the respondent unjustifiable hardship there would have been no breach of the DD Act. Counsel submitted that the correct legal principles were to be found in the definition of "reasonable adjustment" in s 4(1) of the DD Act when read together with s 11, as found by Manousaridis J in Hudson v Australian Broadcasting Corporation [2016] FCCA 917 at [31].
35 I am not persuaded that her Honour misunderstood or misapplied the relevant legal principles. Her Honour was plainly aware that the appellant's complaint was primarily directed to the respondent's refusal to provide her with a note-taker. Express reference is made to that matter in many paragraphs of the reasons for judgment, including [9], [29], [31], [32], [33], [38] and [50]. In my view, her Honour's observations in [36] and [38] relating to other adjustments which were made must be read in their particular context, namely the primary judge's assessment and characterisation of the evidence which was before her in respect of other adjustments, such as the provision of an Auslan interpreter and individual tutoring.
36 I am not persuaded that it has been established that the primary judge applied an incorrect legal principle and/or misconstrued the legislation or fell into any other appealable error within the House principles. It was open to her Honour, in determining the interlocutory application, to make a tentative assessment of the merits of the appellant's substantive case. In performing this task, it was unnecessary for the primary judge to make preliminary findings in respect of each and every aspect of the claim. I am satisfied that the primary judge sufficiently understood the substantive case and it was open to her to make the preliminary assessment of its relatively poor strength as she did.
37 Similarly, the appellant's complaint that the primary judge failed to consider, and properly apply, relevant legal principles as set down by the Full Court in Hurst v Queensland [2006] FCAFC 100; 151 FCR 562 at [134] on the question of whether or not the appellant could comply with the requirement or condition imposed by the respondent, cannot be accepted. Her Honour made express reference to the adjustments which both parties agreed had been made by the respondent and, at [36], her Honour stated:
If those adjustments [which were made by the respondent] are found to have been reasonable in all the circumstances or cause the respondent unjustifiable hardship then there has been no breach of the DDA.
I do not accept the appellant's contention that her Honour proceeded on the basis that the appellant's complaint of indirect discrimination regarding the refusal to provide a note-taker was answered by the fact that she had been able to complete the course because of the other adjustments she received.
38 I also reject the appellant's contention that the defence of unjustifiable hardship was not adequately raised. In [28(d)] of the defence to the further amended statement of claim, the respondent pleaded that, pursuant to cl 10.2 of the DSE, it was only required "to provide reasonable adjustments in so far as providing the adjustments does not impose an unjustifiable hardship" on it. Furthermore, it is plain that the appellant conducted the case below on the basis that unjustifiable hardship was an issue raised by the respondent. In [10] of the primary judge's reasons for judgment, her Honour set out extracts from submissions made by the appellant's counsel (see [6] above) which identified as one of three legal issues for determination "whether avoiding any unlawful discrimination that is found would have imposed unjustifiable hardship to the Respondent".