ABC v Smith
[2013] FCCA 177
•2 May 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ABC v SMITH | [2013] FCCA 177 |
| Catchwords: PRACTICE AND PROCEDURE – Summary dismissal – no reasonable prospect of success. |
| Legislation: Disability Discrimination Act 1992 (Cth), ss.4, 5, 6, 24 |
| AFX v NSW Trustee and Guardian [2012] NSWADTAP 4; [2011] NSWSC 1224 Dey v Victorian Railway Commissioners (1949) 78 CLR 62 General Steel Industries Inc v Commissioner for Railways (NSW) & Ors (1964) 112 CLR 125 Ilian v Australian Broadcasting Corporation [2005] FMCA 143 Spencer v Commonwealth [2010] HCA 28 |
| Applicant: | ABC |
| Respondent: | GREG SMITH IN HIS CAPACITY AS ATTORNEY-GENERAL OF NSW |
| File Number: | SYG 2161 of 2012 |
| Judgment of: | Judge Driver |
| Hearing date: | 2 May 2013 |
| Delivered at: | Sydney |
| Delivered on: | 2 May 2013 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondent: | Ms M Neville |
| Solicitors for the Respondent: | Crown Solicitor |
INTERLOCUTORY ORDERS
The applicant is not to be identified in this judgment.
The Application filed on 3 October 2012 is dismissed, pursuant to rule 13.10(a) of the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2161 of 2012
| ABC |
Applicant
And
| GREG SMITH IN HIS CAPACITY AS ATTORNEY-GENERAL OF NSW |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an Application in a Case filed on 2 April 2013[1] seeking the summary dismissal of human rights proceedings instituted in this Court on 3 October 2012. The Application in a Case seeks summary dismissal, pursuant to rule 13.10(a) of what were then the Federal Magistrates Court Rules 2001 (Cth) (Federal Magistrates Court Rules) and are now the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the principal proposition being that the applicant has no reasonable prospect of success. In the alternative, the application seeks dismissal on the basis that the proceedings are an abuse of process of the Court[2]. The Application in a Case is supported by the affidavit of Janet de Castro Lopo, who annexes documents relating to the applicant’s complaint to the Australian Human Rights Commission about the conduct of proceedings in the Administrative Decisions Tribunal of New South Wales (ADT) and the Supreme Court of New South Wales (Supreme Court).
[1] I gave reasons separately for dismissing another Application in a Case filed on 22 March 2013
[2] see rule 13.10(c)
The principal application was commenced on 9 October 2012. The applicant alleges unlawful discrimination under s.46PO of the Australian Human Rights Commission Act 1986 (Cth).
The applicant asserts disability discrimination under the Disability Discrimination Act 1992 (Cth) (Disability Discrimination Act) and racial discrimination under the Racial Discrimination Act 1975 (Cth) (Racial Discrimination Act). Although the applicant has not expressly identified the legislative provision upon which he relies, the application filed includes the following extracts from the legislation:
a)Sections 9 and 10 of the Racial Discrimination Act; and
b)Sections 4, 5, 6 and 24 of the Disability Discrimination Act.
The background to this matter is identifiable from the documents attached to the originating process. Those documents include correspondence from the Human Rights Commission to the ADT and the Supreme Court. The applicant uses a wheelchair for his mobility and he also has a hearing impairment. He states that he cannot read and write English, although he is able to speak English at a general conversational level. He states that he had matters before the ADT between October 2011 and February 2012. He states that he advised the ADT that he would not be able to participate in the proceedings by phone due to his hearing impairment, but one matter was conducted by what was described as a “phone shuttle”. The applicant states that he also asked to have the proceedings typed onto a computer in Spanish and to have a translator present to read out documents, but he claims that his requests were denied.
Similar complaints were made against the Supreme Court. It appears that the applicant also had difficulty in dealing with the administrative process for lodging documents in the registry of the Court. These issues were, to some extent, traversed in decisions by the Supreme Court and the ADT, to which I was taken by the legal representatives of the Attorney-General[3]. The issues raised by the applicant before the Australian Human Rights Commission were considered by it. The Commission decided, in terminating the complaint under s.46PH(2) of the Australian Human Rights Commission Act, that there was no reasonable prospect of resolving the complaint against the Supreme Court by conciliation, and that other aspects of the complaint were lacking in substance.
[3] AFX v NSW Trustee and Guardian [2012] NSWADTAP 4; [2011] NSWSC 1224 per Associate Justice Harrison
In responding to the complaint against it, the Supreme Court traversed in detail what it knew of the applicant’s dealings with the Court. The Court appears to have acknowledged that there was room for improvement in the accessibility of the courts for disabled persons and in registry procedures. The Court’s letter to the delegate of the President of the Commission, which is annexure A to the affidavit of Ms Lopo, notes that a number of issues raised by the applicant had previously been considered under State anti-discrimination legislation. To that extent, the Commonwealth Commission properly found that there was no jurisdiction to further consider the complaints. The Supreme Court noted that registry staff had been reminded of the appropriate procedure to be followed when an application for special requirements is made. An apology was extended to the applicant on behalf of the Supreme Court by an official of the Court in order to acknowledge his dissatisfaction with his dealings with the Court. However, that apology was not an acknowledgment of any unlawful discrimination by officers of the Court by reason of the applicant’s disability or anything else.
It was apparent from the outset of these proceedings that there were deficiencies in the application brought. The parameters of the application extended beyond the complaint which had been terminated on behalf of the President of the Australian Human Rights Commission. That raised a jurisdictional issue. It was also unclear what relief was being sought. I gave the applicant the opportunity to file and serve an amended application and he took up that opportunity. Unfortunately, however, the amended application filed on 25 October 2012 only served to muddy the waters further. It became apparent that the applicant was, in part, using the proceedings as a vehicle to demonstrate his ongoing requirements for special facilities in any court proceedings. The Court has endeavoured to meet those requirements but, as appears, not to the applicant’s satisfaction.
The issue which I currently have to resolve is whether the principal proceeding should be summarily dismissed on the basis that there is no reasonable prospect of success or on the basis that the principal proceeding is an abuse of process. The respondent has advanced useful submissions on the relevant legal principles, which I agree with and adopt.
Applicable legal principles: summary dismissal
Rule 13.10 of the Federal Circuit Court Rules provides as follows:
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.
Rule 13.10 supports s.17A of the Federal Circuit Court of Australia Act 1999 (Cth) (Federal Circuit Court Act). Section 17A provides as follows:
(1) The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is prosecuting the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2) The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
(4) This section does not limit any powers that the Federal Circuit Court of Australia has apart from this section.
It has been long established that the power to summarily dispose of proceedings must be exercised with great caution. The authorities provide that a party will not be denied a contested merits hearing unless the absence of a cause of action or defence is clearly demonstrated[4] and that no court should determine proceedings summarily if there is a real question in dispute[5]. Commonly, reference is made to proceedings being “manifestly hopeless” or “bound to fail”.
[4] General Steel Industries Inc v Commissioner for Railways (NSW) & Ors (1964) 112 CLR 125
[5] Dey v Victorian Railway Commissioners (1949) 78 CLR 62
In respect of discrimination proceedings, dismissal of proceedings will not be ordered where it is demonstrated that there are real issues to be tried and these could possibly form the basis of a substantiated discrimination claim[6]
[6] Ilian v Australian Broadcasting Corporation [2005] FMCA 143
Section 17A(3) of the Federal Circuit Court Act, however, is significant in that it provides that a proceeding need not be “hopeless” or “bound to fail” for it to have no reasonable prospect of success.
In Spencer v Commonwealth[7], Hayne, Crennan, Kiefel and Bell JJ made the following observations about s.31A of the Federal Court of Australia Act 1976 (Cth). That provision is drafted in substantially the same terms as s.17A. The High Court observed the following[8]:
Because s 31A(3) provides that certainty of failure ("hopeless" or "bound to fail") need not be demonstrated in order to show that a plaintiff has no reasonable prospect of prosecuting an action, it is evident that s 31A is to be understood as requiring a different enquiry from that which had to be made under earlier procedural regimes. It follows, of course, that it is dangerous to seek to elucidate the meaning of the statutory expression "no reasonable prospect of successfully prosecuting the proceeding" by reference to what is said in those earlier cases.
Likewise, it is dangerous to apply directly what has been said in the United Kingdom about the application of a test of "no real prospect" or what has been said in United States decisions about summary judgment. The United Kingdom cases are directed to a different test. The controversies in the United States about what is sufficient to resist a motion for summary judgment, reflected in the recent decisions of the Supreme Court of the United States in Ashcroft v Iqbal and Bell Atlantic Corp v Twombly and in that Court's earlier decision in Conley v Gibson, turn upon the requirements of the Federal Rules of Civil Procedure applied to a system of "notice" pleading. The notion of what is not a "plausible" claim, discussed in Iqbal and Twombly, may in some cases overlap, but does not coincide, with the notion of "no reasonable prospect".
How then should the expression "no reasonable prospect" be understood? No paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content. Nor can the expression usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it cannot be said that there is "no reasonable prospect". The judicial creation of a lexicon of words or phrases intended to capture the operation of a particular statutory phrase like "no reasonable prospect" is to be avoided. Consideration of the difficulties that bedevilled the proviso to common form criminal appeal statutes, as a result of judicial glossing of the relevant statutory expression, provides the clearest example of the dangers that attend any such attempt.
In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like "clearly", "manifestly" or "obviously") as "frivolous", "untenable", "groundless" or "faulty". But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word "reasonable", in the phrase "no reasonable prospect", be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a "frivolous", "untenable", "groundless" or "faulty" claim.
Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is "no reasonable prospect" of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to "no reasonable prospect" can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase "just and equitable" when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.
(footnotes omitted)
[7] [2010] HCA 28
[8] At [56]-[60]
The application for summary dismissal
The Attorney-General submits, and I accept, that the principal application filed by the applicant, in its current form, does not disclose discrimination either on the basis of race or on the basis of disability.
It would appear that the applicant’s claim arises in respect of proceedings that were before the ADT and Supreme Court. There is material included in the application beyond these matters, however, that appears extraneous, irrelevant and beyond the jurisdiction of this Court.
The applicant’s own material indicates that he lodged and pursued proceedings in both the ADT and in the Supreme Court.
The affidavit of Ms de Castro Lopo indicates that the ADT proceeded to determine the applicant’s claim and took measures which were reasonably practicable for the Tribunal to take to assist the applicant.
The judgment of Harrison AsJ identifies that the applicant was provided by the Supreme Court with the assistance he requested for the hearing of his matter[9].
[9] at [3]-[5]
The applicant does not specify the relief sought on the application. This issue was raised by the Attorney-General before this Court and the applicant was granted leave to amend his application to rectify this. An amended application was filed on 25 February 2013, however, the terms of that amended application indicate that the applicant declined to amend his application in any substantive or effective way.
The Attorney-General contends that the applicant has no reasonable prospect of successfully prosecuting his application and the application should be dismissed. I agree.
It is, in my view, clear that the principal application is doomed to fail. On any test, there is no prospect that the applicant can succeed in his present claims of disability discrimination (or any other form of discrimination) against the New South Wales Attorney-General in his capacity as the first law officer of the State responsible for the administration of justice by the Supreme Court and the ADT. Other aspects of the matter are beyond the scope of the principal proceeding.
I accept that the principal application should be dismissed as having no reasonable prospect of success, pursuant to rule 13.10 of the Federal Circuit Court Rules, and I so order. There will be no order as to costs.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 8 May 2013
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