Federal Court of Australia

Seniors and Disabilities Best Access Group v Commissioner of Main Roads [2025] FCA 1024

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal is dismissed.

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

REASONS FOR JUDGMENT

O’SULLIVAN J:

1    The applicant applies for leave to appeal from an interlocutory decision published on 26 May 2025: Seniors and Disabilities Best Access Group v Commissioner of Main Roads (No 2) [25] FCA 615 (SANDBAG (No 2)) by which the primary judge discharged an interim injunction granted on 21 May 2025.

2    The applicant is represented by Mr Tadeusz Krysiak, in his capacity as “convenor” of the Seniors and Disabilities Best Access Group.

3    The background to this matter is set out by the primary judge in Seniors and Disabilities Best Access Group v Commissioner of Main Roads [2025] FCA 424 (SANDBAG (No 1)), also an interlocutory decision delivered on 24 April 2025, with reasons published on 30 April 2025.

4    These reasons should be read against that background, which I do not repeat, save to note that the matter concerns the design, construction and implementation of certain roadworks, including footpaths (Works), being carried out by the respondent at the intersection of Green Street, Main Street and Scarborough Beach Road in Joondanna, a suburb in Perth, Western Australia.

5    The application for leave to appeal came before Vandongen J as Duty Judge on 9 June 2025 at which time his Honour referred the matter to mediation. In the meantime, the respondent undertook not to perform any further construction work on that part of the Works which comprised a new footpath which is included in its redesign of the new Scarborough Beach Road and Green Street roundabout intersection.

6    The mediation was not successful.

7    In SANDBAG (No 1), the primary judge had granted an interim injunction pursuant to s 46PP(1) of the Australian Human Rights Commission Act 1986 (Cth) in the following terms:

3.    Until 4.30pm (AWST) on 22 May 2025, the respondent, whether by itself, by its officers, employees or agents or otherwise, be restrained and an injunction be granted restraining it from removing the balance of the pedestrian footpath that runs in a north/south direction between Scarborough Beach Road and Green Street terminating to the east of the junction between Green Street and Waterloo Street in Joondanna in the State of Western Australia.

4.    The application be relisted for further hearing as to the continuation, discharge or variation of the injunction granted in paragraph 3 of these orders at 2.15 pm (AWST) on 21 May 2025.

8    On 21 May 2025, the primary judge discharged the interim injunction and granted a further injunction, limited in terms, to restrain construction of a short section of a proposed new shared path stretching between Scarborough Beach Road and Green Street, across Green Street, including the landings on either side of Green Street. The construction restrained extended to the island of a new roundabout at the intersection of Green Street and Scarborough Beach Road before the intersection of Brady Street and Main Street in Joondanna: SANDBAG (No 2) at [3].

9    On 26 May 2025, the primary judge discharged the further injunction for the reasons given in SANDBAG (No 2).

10    It is for the reasons which follow that the application for leave to appeal is dismissed.

Principles - leave to appeal

11    The applicant contends that the primary judge’s decision was either interlocutory or alternatively was a final decision such that leave was not required.

12    The decisions in both SANDBAG (No 1) and SANDBAG (No 2) are interlocutory decisions.

13    This is not a case where the orders of the primary judge are such as to “… ‘finally dispose of the rights of the parties’ in the sense necessary to characterise it as a final judgment.”: SZAJB v Minister for Immigration and Citizenship (2008) 168 FCR 410 at [23] (French J as his Honour then was and as a member of this Court). See also: Samsung Electronics Co Limited v Apple Inc [2011] FCAFC 156 at [25] - [34]; Avetmiss Easy Pty Ltd v Australian Skills Qualifications Authority [2014] FCA 507 at [4].

14    The decision of the primary judge did not finally determine the issues between the parties. An application made by the applicant to the Australian Human Rights Commission remains extant and if not resolved, the question of the whether there is discrimination remains to be determined.

15    The consequence is that leave to appeal from the decision in SANDBAG (No 2) is required: s 24(1A) Federal Court of Australia Act 1976 (Cth).

16    In order to obtain a grant of leave to appeal from an interlocutory decision, an applicant must demonstrate that:

(a)    The decision at first instance is attended with sufficient doubt to warrant being reconsidered on appeal; and

(b)    The applicant would suffer substantial injustice if leave was refused: Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397, 399.

17    The two criteria are cumulative and both limbs need to be satisfied: Sekigawa v Minister for Immigration & Border Protection [2016] FCA 127, [12] (Flick J); Jennings v Jaguar Land Rover Australia Pty Ltd [2024] FCAFC 62, [6] (Murphy, Thawley, Stewart JJ).

18    The decision in SANDBAG (No 2) entailed the exercise of a discretion, such that the applicant must demonstrate for the purpose of criteria (a) that the exercise of that discretion is attended with sufficient doubt to warrant it being reconsidered on appeal when considered against the principles set out in House v The King (1936) HCA 40, (1936) 55 CLR 449.

The primary judge’s reasons

19    In SANDBAG (No 1), the primary judge applied well-settled principles relating to interim injunctions finding both a serious question to be tried and that the balance of convenience favoured the granting of an interim injunction for a period of 28 days. In considering whether to grant an interim injunction under s 46PP, the primary judge addressed the applicable principles against the statutory regimes applying to the resolution of disputes under s 46PP and 46PO of the AHRC Act.

20    In SANDBAG (No 2), the primary judge found that the evidence before the Court on 21 May 2025 satisfied his Honour that the original injunction granted in SANDBAG (No 1) was done so on a mistaken understanding of the state of the Works. The primary judge noted: at [5]

5    … The evidence before the Court on 21 May 2025 satisfied me that the original injunction granted was granted on a mistaken understanding of the state of the existing footpath, which has been partially removed. The completion or reinstatement of that footpath would require completion or reinstatement of a new footpath in accordance with current Australian standards. That is because the old or existing path was not constructed in accordance with those standards. Therefore, to maintain that part of the status quo is of limited, if any, utility.

21    The primary judge continued by considering the balance of convenience viewed against the evidence as it stood on 21 May 2025. At [10] of SANDBAG (No 2) the primary judge found:

10    The hearing on 21 May 2025 was adjourned largely to allow inquiries to be made of the Australian Human Rights Commission to determine the likely length of time it would take in that forum to reach a resolution through conciliation or termination of the complaint by one of the various ways in which a complaint can be terminated under the Australian Human Rights Commission Act. The evidence that has been submitted in respect of that proceeding is quite equivocal in terms of the length of time it is likely to take, but it does seem, whatever way one looks at the matter, reaching a resolution, one way or the other, in the Australian Human Rights Commission is likely to take a number of months. The consequence of that is, if the restraint is continued, the area between Scarborough Beach Road and Green Street near the relevant island will remain, in effect, a construction site. It will not be safe to be used as a thoroughfare and members of the public may be tempted to use it in its current state, even if measures are taken to exclude them from the area through fencing or barriers. That is to say, it will remain a hazard or risk to those members of the public who are prepared to take less care for their safety than others, which is also a relevant factor because for so long as the area remains in that condition, it is a risk that someone will come to harm in that area.

22    It was for those reasons that the primary judge discharged the further interim injunction granted on 21 May 2025.

The parties’ submissions and consideration - leave to appeal

23    The applicant raises 10 grounds.

Ground one

24    By ground one, the applicant contends that a central issue in any appeal is whether the construction of public pedestrian infrastructure constitutes the provision of a “service” or “facility” under ss 23 and 24 of the Disability Discrimination Act 1990 (Cth).

25    The applicant contends any appeal raises a novel and nationally significant question of law in circumstances where the primary judge had concluded that the DDA was not engaged.

26    The respondent submits the applicant’s contention is wrong on two bases. The first is that the primary judge was determining whether an interim injunction should be granted under s 46PP and not whether the Works came within the DDA.

27    The second is that the primary judge found, albeit with some reservation, that there was a serious question to be tried.

28    I accept the respondent’s submissions. The primary judge was considering whether to grant an interim injunction. Ultimately, the primary judge found that the balance of convenience did not favour the continuation of either the initial injunction or the more limited injunction ordered on 21 May 2025.

29    Nothing in this ground gives any basis for suggesting that the primary judge’s decision to discharge the interim injunction in SANDBAG (No 2) is attended with sufficient doubt to warrant reconsideration on appeal.

30    Further, for the reasons set out in relation to ground two, I am not satisfied that if leave is refused the applicant would suffer substantial injustice.

31    Ground one fails.

Ground two

32    Ground two contends that the primary judge erred in applying the well-known principles in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57.

33    The respondent submits that the primary judge applied the correct test.

34    It is apparent from SANDBAG (No 1) that the primary judge addressed the relevant principles against a background of an application pursuant to s 46PP. In particular, the primary judge in SANDBAG (No 1) referred to the fact that the requirement of a “serious question to be tried” must be focused on the specific complaint making and resolution process of the Commission and in the event the process under s 46PP was not successful, whether the applicant could obtain relief under s 46PO from the Court.

35    On the question of the balance of convenience, the primary judge contemplated that issue in the context of preservation of the status quo as part of the Commission’s resolution process: Abraham v Housing Authority [2022] FCA 1145 at [35]-[44] (Jackson J). See also Venerable Dr Peter Carlsson v Right Reverend John Ford [2019] FCA 584 at [25]-[28] (Besanko J); Daccache v BOC Ltd [2020] FCA 485 at [30] (McKerracher J).

36    The primary judge embarked upon a careful consideration of the applicable principles viewed in context of the interim relief available under s 46PP and in the context of the statutory regime and the complaint making process.

37    The Works are public works for the overall benefit of the community and in its current state the relevant part of the Works do not comply with Australian standards, will remain in a state of part-construction, and are unsafe to use as a throughfare.

38    In the event the s 46PP process does not result in a successful resolution, the applicant still has the process available under s 46PO to apply to the Court in the event the complaint is terminated. If successful on an application to the Court, the Court has a number of powers available to it in the event it considers there has been unlawful discrimination: s 46PO(4).

39    It follows from what I have set out above that I accept the respondent’s submissions.

40    Nothing put before the Court by the applicant raises any basis to support the contention that the primary judge’s decision is attended with sufficient doubt to warrant reconsideration on appeal.

41    Further, in view of the factual aspects of this matter and the potential relief available, I do not consider the applicant would suffer substantial injustice if leave is refused.

42    Ground two fails.

Ground three

43    In essence, this ground contends that the primary judge erred in his application of the relevant principles, in particular the balance of convenience.

44    The respondent submits that the primary judge applied the correct test.

45    I accept the respondent’s submissions for the reasons I have set out above in relation to grounds one and two. Nothing in this ground provides any basis to support the contention that the primary judge’s decision is attended with sufficient doubt to warrant reconsideration on appeal, nor that the applicant would suffer substantial injustice if leave is refused.

46    Ground three fails.

Ground four

47    By this ground, the applicant contends that the primary judge departed from binding and persuasive authority which supports interim relief to preserve the Australian Human Rights Commission’s process, as well as disregarding authority that significant weight must be placed on protecting the integrity of complaints and redress mechanisms under the AHRC Act.

48    The respondent submits that the primary judge applied the correct test.

49    As I have noted above, in SANDBAG (No 1) the primary judge considered the relevant authorities as part of reaching his conclusion that the applicant had shown a serious question to be tried when viewed against the context of s 46PP. In SANDBAG (No 2), the primary judge discharged the more limited injunction on balance of convenience grounds.

50    Nothing in this ground provides any basis to support the contention that the primary judge’s decision is attended with sufficient doubt to warrant reconsideration on appeal, nor that the applicant would suffer substantial injustice if leave is refused.

51    Ground four fails.

Ground five

52    The applicant contends that the primary judge failed to comply with s 37M of the FCA and r 1.34 of the Federal Court Rules 2011 (Cth).

53    There is no merit in this ground, and in any event, it is not a ground which can give rise to any suggestion that anything put before the Court by the applicant provides any basis to support the contention that the primary judge’s decision is attended with sufficient doubt to warrant reconsideration on appeal.

54    So too, there is nothing raised in this ground to support the contention that the applicant would suffer substantial injustice if leave is refused.

55    Ground five fails.

Grounds six and seven

56    By these grounds, the applicant contends that the primary judge failed to consider “serious evidentiary objections” and failed to rule on objections so as to give rise to a breach of procedural fairness.

57    The respondent submits the primary judge ruled on the objections raised by the applicant.

58    A consideration of the transcript of the hearing in SANDBAG (No 2) reveals that to be the case.

59    There is nothing in this ground which provides any basis to support the contention that the primary judge’s decision is attended with sufficient doubt to warrant reconsideration on appeal, nor that the applicant would suffer substantial injustice if leave is refused.

60    Grounds six and seven fail.

Grounds eight, nine and ten

61    These grounds contend that the primary judge:

a)    Gave inadequate consideration to the relevant Minister’s political motivation in fast-tracking the Works for electoral gain;

b)    The weight to be given to public interest in the enforcement of statutory rights; and

c)    Giving determinative weight to third-party contractors without identifying those involved, hearing from them and requiring evidence.

62    The respondent submits that none of these grounds raise any reviewable error such as to justify the granting of leave to appeal.

63    The applicant’s submissions on grounds eight and nine raise matters of high principle but which do not provide any basis to support a conclusion that the primary judge’s decision is attended with sufficient doubt to warrant reconsideration on appeal. So too, there is nothing to support the contention that the applicant would suffer substantial injustice if leave is refused.

64    The applicant’s submissions on ground ten are without merit. The primary judge considered carefully the stage of the Works and received evidence as to the cost of not continuing with the Works as well as the danger and inconvenience presented to the public at large by leaving the Works in its current state.

65    Accordingly, there is nothing in ground ten to support the contention that the primary judge’s decision is attended with sufficient doubt to warrant reconsideration on appeal. As with the other grounds, there is nothing to support the contention that the applicant would suffer substantial injustice if leave is not granted.

66    It follows that I accept the respondent’s submissions on grounds eight, nine and ten such that these grounds fail.

Fresh Evidence

67    At the hearing of the application for leave to appeal, the applicant applied to adduce fresh evidence and provided a memorandum to the Court in relation to both the asserted fresh evidence as well as criticisms directed to three affidavits of Mr Nazmus Sadat forming part of the material placed before the primary judge by the respondent.

68    In short, the “fresh evidence” and the criticisms are directed to the stage of the Works and the progress of the Works.

69    There is an issue as to whether the evidence is truly “fresh evidence” but accepting that it is, nonetheless, nothing put before the Court by the applicant raises any basis to support the contention that the primary judge’s decision is attended with sufficient doubt to warrant reconsideration on appeal, nor that the applicant would suffer substantial injustice if leave is not granted.

Conclusion on the application for leave to appeal

70    It is for these reasons that the application for leave to appeal is dismissed.

Associate:

Dated:    26 August 2025