Ben Fogarty


Year of Admission to the NSW bar:



areas of practice

  • Administrative Law

  • Criminal Law

  • Discrimination, Disability and Human Rights

  • Employment and industrial Relations

  • Guardianship and Mental Health

  • Inquests and Commissions of Inquiry

  • Police Torts


Ben was called to the bar in October 2011. Prior to commencing at the bar, Ben was the Senior Solicitor at the Homeless Persons’ Legal Service in Sydney. He has quite a deal of experience working in the community legal sector, having been the principal solicitor of the Intellectual Disability Rights Service, the outreach solicitor at the Darwin Community Legal Service, the principal solicitor of the NSW Disability Discrimination Legal Centre and a solicitor at Redfern Legal Centre and the Inner City Legal Centre. Ben’s work in the community legal sector has covered a very broad range of laws – including discrimination, criminal, guardianship, tenancy, consumer, employment and administrative law.

Ben has published a number of articles in the Law Society Journal and the Alternative Law Journal on discrimination law, employment law and disability rights. He has also written chapters and booklets for the community legal sector on guardianship and financial management law and disability rights.

In 2010 and 2011 Ben was the Acting Director of Pro Bono at Gilbert+Tobin where he broadened his legal experience working on refugee, sexual harassment, defamation and corporate governance matters for not for profits. From 1999 to 2003 Ben worked at Mallesons in its insurance and intellectual property groups.

Ben also taught criminal law (as a part-time lecturer) at the Universities of Sydney and New South Wales between 2004 and 2012.

Selected Cases

Mattiazzo v Commonwealth Bank of Australia (FCCA SYG630/2018) and Innes v Commonwealth Bank of Australia & Anor (FCCA SYG627/2018) (disability discrimination - the Albert Eftpos tablet case)

DHZ v Children’s Guardian [2019] NSWCATAD 13

DKD v Children’s Guardian [2019] NSWCATAD 33

CFW v Children’s Guardian [2016] NSWCATAD 76

CTF v Children’s Guardian [2017] NSWCATAD 184

Lyons v State of Queensland [2016] HCA 38 (disability discrimination – jury service)

Innes v Rail Corporation of NSW (No 2) [2013] FMCA 36 (disability discrimination)

Loke v NSW Department of Education and Communities [2015] NSWCATAD 111 (race discrimination)

BKG v Children’s Guardian [2015] NSACATAD 75 (Working with Children Clearance – appeal)

Lawson v State of New South Wales (Housing NSW) [2013] NSWADTAP 5 (disability discrimination – appeal)

Hinton v Alpha Westmead Private Hospital Pty Ltd [2016] FCAFC 107 (disability discrimination)

Shafaq v Milez Trading Group Pty Ltd and Anor [2016] FCCA 2135 (Fair Work division – underpayment)

Selected Publications

‘Disability discrimination in education – Lessons to learn’, accepted for 2012 publication in the Law Society Journal

‘Working in whose favour? Wage assessment in Australian Disability Enterprises’, accepted for 2012 publication in the Alternative Law Journal

‘A practical guide to applications under sections 32 and 33 of the Mental Health (Forensic Provisions) Act 1990 (NSW)’, Mental Health Law in NSW – How to successfully represent your clients, NSW Young Lawyers’ Seminar, Sydney, 16 February 2011

‘Guardianship and administration laws across Australia’ Booklet, published by Freehills, launched at national conference of the National Association of Community Legal Centres, Perth, 2009

Fogarty, B. & Kayess, R., ‘A United Nations Convention on the Rights and Dignity of Persons with Disabilities’, (2007) March, Alternative Law Journal

‘The Silence is Deafening: Access to education for deaf children’, (2005) October, 43(5) Law Society Journal 78-81


UN Convention on the Rights of Persons with Disabilities (New York, USA August 2006). Ben participated at the United Nations in New York in August and September 2006 at the 8th Ad Hoc Committee Meeting on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities, as a Non-Government Organisation representative for the Australian National Association of Community Legal Centres.

Criminal Justice Support Network (CJSN) Since 2010 Ben has volunteered after-hours and on weekends with CJSN providing telephone support and legal advice for persons with intellectual disability and/or developmental disabilities brought into NSW Police custody to be questioned and/or charged.

Ben is conversant in basic French and Italian.  He enjoys overseas travel , almost as much as he relishes a good book, cryptic crosswords, cycling, touch football and distance running.