Michael, Carol Beverley v The State Housing Commission [1996] FCA 600

Michael, Carol Beverley v The State Housing Commission [1996] FCA 600

The Court rejected the applicant's submission that enforcement of an HREOC interim determination should be approached as judicial review; the matter was to be approached by applying ordinary interlocutory injunction principles in a hearing de novo. Although the applicant's discrimination case was weak and the evidence then before the Court did not sufficiently establish a factual basis for racial or disability discrimination, the practical effect of refusing interim relief would be to allow eviction and thereby pre-empt the principal application. The balance of convenience, though fine, favoured preserving the status quo because eviction in winter would seriously affect the applicant's...

Jurisdiction
Australia
Judgment Date
19 July 1996
Procedural Posture
Application to Enforce an Interim Determination of the President of the Human Rights and Equal Opportunity Commission, With Application for Interim Injunction / Interim Relief Pending Hearing of the Principal Application
Outcome
The principal application was expedited and interim eviction was avoided by the respondent's undertaking not to evict before judgment following the expedited hearing, subject to an inspection condition; costs of the interim relief application were reserved.
Legal Topics
['racial Discrimination' 'disability Discrimination' 'interim Determination of the Human Rights and Equal Opportunity Commission' 'interim Injunction' 'eviction From Public Housing' 'serious Question to Be Tried' 'balance of Convenience' 'hearing De Novo']
['discrimination Law' 'practice and Procedure' 'housing and Residential Tenancies'] ['racial Discrimination' 'disability Discrimination' 'interim Determination of the Human Rights and Equal Opportunity Commission' 'interim Injunction' 'eviction From Public Housing' 'serious Question to Be Tried' 'balance of Convenience' 'hearing De Novo']

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Procedural Posture

Application to Enforce an Interim Determination of the President of the Human Rights and Equal Opportunity Commission, With Application for Interim Injunction / Interim Relief Pending Hearing of the Principal Application

Legal Issues

  1. 1 ['Whether an application in the Federal Court to enforce an interim determination of the President of the Human Rights and Equal Opportunity Commission is to be dealt with by way of judicial review or by way of a hearing de novo.' 'Whether there was a serious question to be tried concerning alleged racial or disability discrimination by the State Housing Commission.' 'Whether the balance of convenience favoured restraining eviction pending the hearing of the principal application.' 'Whether the status quo should be preserved where refusal of interim relief would effectively pre-empt the principal application.']

Ratio Decidendi

The Court rejected the applicant's submission that enforcement of an HREOC interim determination should be approached as judicial review; the matter was to be approached by applying ordinary interlocutory injunction principles in a hearing de novo. Although the applicant's discrimination case was weak and the evidence then before the Court did not sufficiently establish a factual basis for racial or disability discrimination, the practical effect of refusing interim relief would be to allow eviction and thereby pre-empt the principal application. The balance of convenience, though fine, favoured preserving the status quo because eviction in winter would seriously affect the applicant's...

Court Disposition

The principal application was expedited and interim eviction was avoided by the respondent's undertaking not to evict before judgment following the expedited hearing, subject to an inspection condition; costs of the interim relief application were reserved.

Orders

  • ['The hearing of the principal application be expedited and take place on 1 August 1996.' 'The evidence at the hearing shall be by way of affidavit; the affidavit and other documentary evidence admitted at the hearing on 17 July 1996 for interim relief is to be evidence in the hearing of the principal application.'...