Hurst v State of Queensland (No 2) [2006] FCAFC 151 (27 October 2006)

Last Updated: 27 October 2006

FEDERAL COURT OF AUSTRALIA

Hurst v State of Queensland (No 2) [2006] FCAFC 151

DISCRIMINATION LAW – application for injunctive relief and general damages on basis of disability discrimination – appellant sought quia timet injunction – likelihood of a future contravention of appellant’s rights – whether injunction sought within scope of s 46PO(4) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) – finding that the appellant had suffered no loss or damage not challenged on appeal.



Disability Discrimination Act 1992 (Cth)
Human Rights and Equal Opportunity Commission Act 1986 (Cth) ss 46PO, 46PO(4)
Federal Court of Australia Act 1976 (Cth) ss 23, 24(1)(a)

Catholic Education Office v Clarke [2004] FCAFC 197; (2004) 138 FCR 121 discussed
Clarke v Catholic Education Office [2003] FCA 1085; (2003) 202 ALR 340 discussed
Hurst v Queensland [2006] FCAFC 100; (2006) 151 FCR 562 referred to
Hurst and Devlin v Education Queensland [2005] FCA 405 referred to
R v Macfarlane; Ex parte O’Flanagan and Ex parte O’Kelly [1923] HCA 39; (1923) 32 CLR 518 cited



TIAHNA HURST (BY HER NEXT FRIEND GAIL SMITH) v STATE OF QUEENSLAND (ACTING THROUGH EDUCATION QUEENSLAND)
QUD 187 OF 2005

RYAN, FINN AND WEINBERG JJ
27 OCTOBER 2006
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 187 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	TIAHNA HURST (BY HER NEXT FRIEND GAIL SMITH) Appellant
AND:	STATE OF QUEENSLAND (ACTING THROUGH EDUCATION QUEENSLAND) Respondent

JUDGES:	RYAN, FINN AND WEINBERG JJ
DATE OF ORDER:	27 OCTOBER 2006
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The appellant’s application for injunctive relief and/or compensation be refused.

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 187 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	TIAHNA HURST (BY HER NEXT FRIEND GAIL SMITH) Appellant
AND:	STATE OF QUEENSLAND (ACTING THROUGH EDUCATION QUEENSLAND) Respondent

JUDGES:	RYAN, FINN AND WEINBERG JJ
DATE:	27 OCTOBER 2006
PLACE:	BRISBANE

REASONS FOR JUDGMENT

THE COURT

1

Judgment in this matter was delivered on 28 July 2006: Hurst v Queensland [2006] FCAFC 100; (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 APPELLANT’S CONTENTIONS

4

The appellant argues that her case has always been that she should be entitled to both injunctive relief and compensation. Moreover, in her notice of appeal, the appellant sought an order that she could not comply with the relevant requirement or condition that she be educated without a full-time Auslan interpreter. Effectively, this amounted to an injunction restraining the respondent from continuing to deny her the services of an Auslan interpreter.

5

The appellant submits that injunctive relief is justified by both the pleaded facts and the unchallenged findings made by the primary judge (see Hurst and Devlin v Education Queensland [2005] FCA 405). In that regard, she points to three specific findings.

(a) "When a child is profoundly deaf, ordinarily, subject to the parents’ wishes, he/she should be educated in Auslan." (at [769])

(b) "In my opinion, it was not reasonable for Education Queensland to not provide Auslan teachers or interpreters to Tiahna and Ben if they were not able to comply with the condition that they receive their instruction in Signed English. In other words, whilst they have not succeeded in establishing that it was not reasonable of Education Queensland to not have introduced a bilingual-bicultural program by 30 May 2002, they have succeeded, in my opinion, in establishing that it would have been of benefit to both of them to have been instructed in Auslan rather than in English.

In Tiahna’s case that is, without a doubt, obvious. Her first language is Auslan. She would have been better taught in Auslan." (at [797]-[798])

(c) "In my opinion, Tiahna has established that, throughout the whole of her education in Education Queensland’s schools, it was not reasonable of Education Queensland not to provide her with an Auslan teacher or interpreter." (at [802])

6	The appellant submitted that these findings were sufficient, of themselves, to support the injunctive relief that she sought.
7	The appellant noted that the Full Court had been informed during the course of argument that she had moved to Western Australia in order to gain access to an Auslan education. However, provided that she could be guaranteed the benefit of a full-time Auslan interpreter, she wished to return to Queensland in order to resume her education there.
8	The appellant relied upon a letter dated 10 August 2006 sent by her solicitor to the respondent’s solicitor seeking an undertaking that, upon enrolment in an educational facility within the Brisbane or Sunshine Coast regions, she would be offered the assistance of an appropriately qualified Auslan interpreter.
9	That letter had elicited the following response dated 18 August 2006. After denying that the appellant had any entitlement to injunctive relief, the respondent offered, as an act of good faith, and with a view to resolving the dispute between the parties, to enrol the appellant in the Bilingual-Bicultural Co-enrolment program presently being offered at Toowong State School. It appears that this program presently offers full-time Auslan support to all enrolled students. The respondent added that should the appellant enrol in the program, the Department of Education and the Arts would commit to providing her with full-time Auslan support "until the end 2007".
10	The respondent put forward an alternative proposal. It offered to enrol the appellant in another school of her parents’ choosing, and to provide a level of Auslan support considered appropriate and likely to best provide for her educational needs based upon various assessments to be undertaken in the future.
11	Both alternatives were rejected. The appellant submitted that, without injunctive relief, she could not be confident that the State of Queensland would provide her with the assistance of a full-time Auslan interpreter throughout her schooling. The appellant further submitted that it would be unreasonable to expect her to return to Queensland only to find the respondent unprepared to provide a full-time Auslan interpreter beyond 2007.
12	With regard to the appellant’s claim for compensation, it was submitted that, although she had not challenged the primary judge’s finding that she had not suffered any actual detriment by reason of the respondent’s discriminatory conduct and had not fallen behind her "hearing peers", she was nonetheless entitled to an award of damages. This was to compensate her for the less favourable treatment, hurt, humiliation and injury to feelings resulting from the serious disadvantage that she had been placed under by reason of the respondent’s breach of its statutory obligations. She relied in particular upon what was said to be the unchallenged evidence of her mother as to the hurt suffered by her by reason of the imposition of the requirement or condition that she be taught without Auslan assistance.
13	The appellant noted that in Clarke v Catholic Education Office [2003] FCA 1085; (2003) 202 ALR 340 the complainant was awarded general damages of $20,000. That figure was considered appropriate notwithstanding that the discrimination in that case did not extend beyond pre-enrolment negotiations. The amount was described as "relatively modest" by the Full Court in the appeal. See Catholic Education Office v Clarke [2004] FCAFC 197; (2004) 138 FCR 121 per Sackville and Stone JJ at [134].

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] HCA 39; (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.

Associate:

Dated: 27 October 2006

Counsel for the Appellant:	Mr J W K Burnside QC with Mr J D Gray
Solicitor for the Appellant:	Caxton Legal Centre
Counsel for the Respondent:	Mr R G Bain QC with Mr C J Murdoch
Solicitor for the Respondent:	Crown Solicitor
Date of Submissions:	18 and 29 August 2006
Date of Judgment:	27 October 2006