Forest v Virgin Blue Airlines Pty Ltd [2007] FCA 91 (7 February 2007)

Last Updated: 12 February 2007

FEDERAL COURT OF AUSTRALIA

Forest v Virgin Blue Airlines Pty Ltd [2007] FCA 91

CHE FOREST v VIRGIN BLUE AIRLINES PTY LTD
QUD 0003 OF 2007

KIEFEL J
7 FEBRUARY 2007
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 0003 OF 2007

BETWEEN:	CHE FOREST Applicant
AND:	VIRGIN BLUE AIRLINES PTY LTD Respondent

JUDGE:	KIEFEL J
DATE OF ORDER:	7 FEBRUARY 2007
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The application for an extension of time to bring an application for leave to appeal the decision of Coates FM of 5 December 2006 is dismissed.

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	QUD 0003 OF 2007

BETWEEN:	CHE FOREST Applicant
AND:	VIRGIN BLUE AIRLINES PTY LTD Respondent

JUDGE:	KIEFEL J
DATE:	7 FEBRUARY 2007
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1 Two applications against the respondent, (‘Virgin Blue’) were filed in the Federal Magistrates Court on 16 October 2006 and 16 November 2006. The only detail they give as to the basis for the applications was that Virgin Blue refused to accept a booking from Mr Forest, and that this is linked to his claim mentioned in one of the applications that he was discriminated against. A matter involving another respondent, Queensland Health, has been heard by Collier J, and judgment in it reserved. In that case Mr Forest contends that the discrimination involved, in general terms, the refusal to accept that his dog was a ‘disability dog’, and that he was therefore entitled to have the dog accompany him at all times. The applicant was apparently refused services at Cairns Base Hospital whilst accompanied by the dog. For present purposes, it may be assumed that such issue might also arise in the proceedings in question. Mr Forest appeared to confirm that during the course of the hearing this morning.

2 The matters came before a Federal Magistrate on 5 December 2006. His Honour eventually acceded to Mr Forest’s request that the matter be adjourned until the decision in the matter heard by Collier J is given. His Honour, however, also accepted the submission of Virgin Blue that directions should be given requiring, in the first place, that Mr Forest provide particulars of his case.

3 Mr Forest needs an extension of time within which to bring an application for leave to appeal from the directions so made. He says that he could not obtain any assistance or advice until 3 January 2007. I have no reason to doubt that he had difficulty in obtaining that advice. In relation to the leave for appeal, his general point is that he should not be required to prepare his full argument, because he would not be eligible for legal assistance, and could not put his case together until after the test case is finalised. Mr Forest apprehends that the directions require him to put his entire case and that he will not have another opportunity to present his argument.

4 It appears to me that there are a number of misunderstandings inherent in Mr Forest’s understanding of the directions made. As I read his Honour’s reasons, he made the directions on the basis that, whilst a hearing might not be appropriate until after the test case, nevertheless Virgin Blue is entitled now to know the nature of the case brought against it. That is undoubtedly correct. It is also the purpose of the rules of court, which require a person to give particulars of the claim they make.

5 The application filed does not disclose the facts and circumstances relevant to claims here brought, and the matter ought properly to proceed to the provision of a statement of claim, and the other steps identified by the Federal Magistrate. There is no basis shown, in my view, for suggesting that the Magistrate was, in any way, wrong, in requiring those steps to be undertaken.

6 It appears that Mr Forest thought that, because the directions finish at a point where the affidavit material is required to be filed and exchanged, that he was not able to further develop and argue his case. That misunderstanding may, in part, have been brought about by the fact that the orders by way of directions do not conclude with an order adjourning the matter over for further directions or a hearing at a date to be fixed. They conclude with liberty to apply being given, but only in the event of non-compliance. Mr Forest has therefore inferred that the directions made are the sole steps to be taken in his case.

7 Despite the omission of a reference to further directions and a latter hearing of argument, there is no doubt that the Federal Magistrate intended this would occur, as indeed they must if Mr Forest is to be afforded procedural fairness. The transcript discloses that his Honour intended the steps directed to be taken and the matter then left in abeyance until the outcome of the test case was known. Mr Forest’s fears are not well-founded.

8 Mr Forest, at some points, suggested that he was not able to comply with the requirements about affidavit material, but I think this involves a misunderstanding about the content of an affidavit. As I have tried to explain to him, it does not require him to put his entire argument in this case and repeat much of what he has put forward in his test case. It requires him to make his statement about what occurred in his dealings with Virgin Blue, and the facts about his dog and his disability, which he will use as a factual platform for his legal argument which he will later put before the court.

9 Mr Forest also contended that his appeal extended to an order made by his Honour on 5 December 2006, requiring him to remove his dog from the courtroom. I observed that such an order did not appear amongst those pronounced by the Court and entered and that, in any event, it was a direction relating to the Magistrate’s control of the courtroom and not properly the subject of an appeal in this matter. Such a direction might be the subject of separate proceedings, but it is not necessary to go into that. Subsequent to the hearing and the giving of these reasons I revisited the transcript of the proceedings in the Federal Magistrates Court. It does not appear that the matter of the removal of Mr Forest’s dog was concluded. His Honour had requested, not ordered, Mr Forest to do so and Mr Forest did not comply with the request. What his Honour did do, with respect to the issue, was to foreshadow directions that on Mr Forest’s next appearance before the Court, he provide evidence of the disability which he says required his dog to be with him. I observe that such evidence would be included in the affidavit to be filed and served by Mr Forest in support of his claim, in any event.

10 The appeals from the directions made on 5 December are doomed to failure. I would not grant leave with respect to them and the giving of an extension of time is, therefore, pointless. The applications should not have been brought, and they will be dismissed.

11 I note that Mr Forest says that he has complied with the first direction by filing a detailed claim on 23 January. Whether or not he has done so is a matter with which I am not concerned. I leave that to the respondent and the Federal Magistrate to deal with, if necessary.

12 There will be an order that each of the applications be dismissed.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

Associate:

Dated: 9 February 2007

Counsel for the Applicant:	Applicant appeared in person
Solicitor for the Respondent:	Ms S Holthusen
Date of Hearing:	7 February 2007
Date of Judgment:	7 February 2007