Ali-Hossaini v NSW Land and Housing Corporation
[2010] FMCA 644
•27 October 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ALI-HOSSAINI & ANOR v NSW LAND AND HOUSING CORPORATION | [2010] FMCA 644 |
| HUMAN RIGHTS – Disability discrimination – allocation and modification of public housing – respondent experiencing difficulty in finding and modifying accommodation that met the expectations of the applicants in view of the deteriorating condition of the second applicant. PRACTICE AND PROCEDURE – Summary dismissal – no reasonable prospect that the applicants would succeed on the application. |
| Australian Human Rights Commission Act 1986 (Cth), s.46PO Disability Discrimination Act 1992 (Cth), ss.5, 6, 11, 24, 25 Federal Court Act 1976 (Cth), s.31A Federal Magistrates Act 1999 (Cth), s.17A Federal Magistrates Court Rules 2001 (Cth) |
| Dey v Victorian Railway Commissioners (1949) 78 CLR 62 General Steel Industries Inc v Commissioner for Railways (NSW) & Ors (1964) 112 CLR 125 NSW Department of Housing v Moskalev [2007] FCA 353 Spencer v Commonwealth of Australia [2010] HCA 28 Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905 Vivid Entertainment LLC & Ors v Digital Sinema Australia Pty Ltd & Ors [2007] FMCA 157 |
| First Applicant: | MORTEZA ALI-HOSSAINI |
| Second Applicant: | NAHID ALI-HOSSAINI |
| Respondent: | NSW LAND AND HOUSING CORPORATION |
| File Number: | SYG2843 of 2009 |
| Judgment of: | Driver FM |
| Hearing date: | 25 August 2010 |
| Date of Last Submission: | 22 September 2010 |
| Delivered at: | Sydney |
| Delivered on: | 27 October 2010 |
REPRESENTATION
The Applicants appeared in person
| Counsel for the Respondent: | Mr L Karp |
| Solicitors for the Respondent: | NSW Land and Housing Corporation Legal Services Branch |
ORDERS
Judgment is given for the NSW Land and Housing Corporation on the Application in a Case filed on 18 May 2010.
The application filed on 20 November 2009 is dismissed, pursuant to rule 13.10(a) of the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2843 of 2009
| MORTEZA ALI-HOSSAINI |
First Applicant
NAHID ALI-HOSSAINI
Second Applicant
And
| NSW LAND AND HOUSING CORPORATION |
Respondent
REASONS FOR JUDGMENT
Introduction and background
I have before me an Application in a Case filed on 18 May 2010 seeking the summary dismissal of the principal application, pursuant to rule 13.10 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”). The application also sought the correction of the name of the respondent. That was granted on 18 May 2010.
The principal application alleges unlawful discrimination under s.46PO of the Australian Human Rights Commission Act 1986 (Cth) (“the Australian Human Rights Commission Act”). The applicants assert disability discrimination and rely on ss.5, 6, 11, 24 and 25 of the Disability Discrimination Act 1992 (Cth) (“the DDA”).
The applicants are public housing clients of the NSW Land and Housing Corporation (“the Corporation”) and have been so for about eight years. The second applicant (the wife of the first applicant) is now severely disabled with multiple sclerosis. The first applicant (Mr Ali-Hossaini) is her litigation guardian. The parties have, for the duration of their association, had difficulty in arranging accommodation to meet the special needs of Mrs Ali-Hossaini. Those special needs include a four bedroom house with disabled access and internal modifications to the kitchen, toilet, bathroom and bedroom. The Corporation has experienced difficulty in finding suitable publicly owned accommodation for the family in their preferred location in the northern suburbs of Sydney. The Corporation has provided financial assistance so that the family could obtain suitable accommodation in the private rental market but that has raised other difficulties, including obtaining owners’ consent for substantial modification works. At times, temporary accommodation in a motel has been necessary, which Mr Ali-Hossaini has found unsuitable.
The evidence and submissions
The Corporation relies upon the affidavit of Brett Louat, made on
17 May 2010. Mr Louat was cross-examined on his affidavit. The applicants rely upon three affidavits by Mr Ali-Hossaini made on 20 November 2009, 26 February 2010 and 22 August 2010. Mr Ali-Hossaini was cross-examined on those affidavits.
The Corporation submits that while it is apparent that the family has experienced distressing circumstances and that there has been difficulty in meeting their perceived needs, Mrs Ali-Hossaini has not been treated less favourably than a person without her disability. Neither is there any evidence of a condition or requirement being imposed upon her that she could not meet in circumstances where a person without her disability could meet the condition. The applicants also allege harassment which relates to instances of nuisance phone calls. The Corporation submits that there is no evidence to link such calls to it. In the unlikely event that the nuisance calls could be linked to an employee of the Corporation, the Corporation denies any liability for such conduct.
The applicants submit that the Corporation has directly discriminated against Mrs Ali-Hossaini by failing to make reasonable adjustments to the accommodation provided to the family for her benefit. They further claim indirect discrimination in relation to a special assistance policy under which Mr Ali-Hossaini says they were accepted in 2002 but they were not notified of that acceptance until 2006, resulting in him incurring unnecessary expense, which he seeks to recover. In relation to the harassing telephone calls, Mr Ali-Hossaini was unwilling to name any suspect but believes that one or more employees of the Corporation is responsible for all or some of them.
Consideration
Rule 13.10 of the Federal Magistrates Court Rules supports s.17A of the Federal Magistrates Act 1999 (Cth) (“the Federal Magistrates Act”). I dealt with the application of the section and the rule in Vivid Entertainment LLC & Ors v Digital Sinema Australia Pty Ltd & Ors [2007] FMCA 157 at [18]-[30]. At [30] I adopted the following principles to be applied in relation to summary judgment or summary dismissal:
· In assessing whether there are reasonable prospects of success on an application or a response, the Court must be cautious not to do an injustice by summary judgment or summary dismissal.
· There will be reasonable prospects of success if there is evidence which may be reasonably believed so as to enable the party against whom summary judgment or summary dismissal is sought to succeed at the final hearing.
· Evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects.
· Unless only one conclusion can be said to be reasonable, the discretion under s.17A cannot be enlivened.
· The Court should have regard to the possibility of amendment and additional evidence in considering whether only one conclusion can be said to be reasonable. In that consideration, the conduct of the parties and the other circumstances of the case may be relevant.
The Corporation relies upon similar principles derived from earlier authorities, namely Dey v Victorian Railway Commissioners (1949) 78 CLR 62, General Steel Industries Inc v Commissioner for Railways (NSW) & Ors (1964) 112 CLR 125 and Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905. In Spencer v Commonwealth of Australia [2010] HCA 28 at [24] French CJ and Gummow J said:
The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. The same applies where such a disposition is sought in a summary judgment application supported by evidence. As to the latter, this Court in Fancourt v Mercantile Credits Ltd said:
The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.
More recently, in Batistatos v Roads and Traffic Authority (NSW) Gleeson CJ, Gummow, Hayne and Crennan JJ repeated a statement by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde which included the following:
Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.
There would seem to be little distinction between those approaches and the requirement of a "real" as distinct from "fanciful" prospect of success contemplated by s 31A [of the Federal Court Act 1976 (Cth)]. That proposition, however, is not inconsistent with the proposition that the criterion in s 31A may be satisfied upon grounds wider than those contained in pre-existing Rules of Court authorising summary dispositions. (footnotes omitted)
At [56]-[60], Hayne, Crennan, Kiefel and Bell JJ provided the following guidance on the interpretation of s.31A of the Federal Court Act which is in materially the same terms as s.17A of the Federal Magistrates Act:
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)
This Court has taken care to ensure that there is no inconsistency between rule 13.10(a) and s.17A. In my opinion, having reviewed the evidence, the principal application has no reasonable prospect of success and the relief of summary dismissal sought in the Application in a Case should be granted. It is not in dispute that the circumstances of the family are distressing. Their lives have been turned upside down by the illness of Mrs Ali‑Hossaini. Mr Ali-Hossaini has devoted his life to her care and his devotion to her is obvious. He is truly a noble man.
There is also no real doubt that the Corporation has been unable to meet the needs of the family as perceived by Mr Ali-Hossaini throughout most of the period that the Corporation has been seeking to meet the housing needs of the family. That is not to be seen as a criticism of the Corporation. The Corporation does its best to assist approximately 117,000 clients in public housing, around half of whom are disabled. It is by no means an easy task. The public housing stock is limited. The public funds available for private rental assistance are also limited. The owners of private housing do not have to agree to modification works on their properties to meet the needs of disabled occupants. At times, temporary accommodation must be found pending the availability of suitable permanent accommodation. There are bound to be significant limitations in the suitability of temporary accommodation. This Court does not have any general jurisdiction to deal with perceived administrative shortcomings in the provision of public housing in New South Wales[1].
[1] NSW Department of Housing v Moskalev [2007] FCA 353
The history of the Ali-Hossaini’s relations with the Corporation is extensive, and a comprehensive description would cover many pages. The following is a summary of major events since 2002 drawn from the Corporation’s files.
a)In 2002 Mrs Ali-Hossaini was diagnosed with multiple sclerosis. At that time the Ali-Hossaini family applied for priority housing with the Corporation. They specifically asked for housing in the northern suburbs allocation zone (known as CS4). That application was supported by medical opinion and social support services. The application was rejected. The family applied to the Housing Appeals Committee which recommended that the application be approved. The Corporation was not required to accept that recommendation, and it declined to do so on the basis that priority housing limited to the CS4 zone where demand for public housing was high and supply was low, had not been justified.
b)It may be noted that between 2002 and 2007 the family lived in private rental accommodation at 31 Jenkins Road, Carlingford. This was in the WS1 zone.
c)The Ali-Hossainis lodged a further appeal. In January 2003 the Corporation accepted that priority housing was required, but was unable to provide housing the CS4 zone. However, the family was approved for priority housing in the Dundas/Telopea (WS1) allocation zone.
d)In 2003 Mr and Mrs Ali-Hossaini declined to accept properties offered in the WS1 zone. It appears from the Corporation’s files that in Mr Ali-Hossaini’s view these properties were not suitable for his family, and in particular for Mrs Ali-Hossaini whose condition continued to deteriorate.
e)In early 2004 Mr and Mrs Ali-Hossaini rejected the offer of a house in North Parramatta because it would be unsuitable for an electric wheelchair which it was expected that Mrs Ali-Hossaini would need in the very near future. As this was their second rejection of a house in the WS1 zone their priority housing approval was again rescinded, with effect from 31 March 2004. This was in accordance with Corporation policy which states that if an applicant for priority housing rejects two offers of housing which the Corporation considers suitable, then their priority status is withdrawn.
f)The Ali-Hossainis lodged another priority housing application on 13 May 2005 in the CS4 zone. At about that time they received a notice of termination for their Jenkins Street house because of arrears in rent. On 28 July 2005 the Corporation approved the making of one further offer of priority housing in the WS1 zone, although, given the special needs of the family it was not expected that a suitable dwelling could be found “in the short term”.
g)On 21 November 2005 their application for priority housing in the CS4, northern suburbs area, was approved. The following year there was considerable correspondence as to whether a three or four bedroom house was required. The Ali-Hossainis insisted that a four bedroom house was required to accommodate Mrs Ali-Hossaini’s electric hospital bed.
h)In June 2006 the family were given authority to use the Special Assistance Subsidy (SAS) previously granted to them to obtain a four bedroom rental property in the private rental market in the CS4 area. A property was located in Denistone East through a private estate agent and Mr Ali-Hossaini gave notice of his intention to vacate the Jenkins Road premises as of 30 December 2006.
i)The Denistone East property required some modifications to make it suitable for Mrs Ali-Hossaini, who was by that time confined to a wheelchair and unable to care for herself in any way. Unfortunately, the landlord would not agree to modifications and so the lease did not proceed. The family continued to live at Jenkins Road, Carlingford.
j)On 3 October 2007 the landlord of the Ali-Hossaini’s rental property at 31 Jenkins Road, Carlingford obtained an order for termination and possession. On 6 February 2007 the Corporation agreed to pay the rental arrears, and secured a further lease for six months on the Jenkins Road property.
k)On 7 March 2007 the Western Sydney Regional Public Tenants Council were asked by Mr Ali-Hossaini to act as their advocate with the Corporation.
l)On 4 September 2007 the Corporation was advised that another notice of termination had been issued to Mr and Mrs Ali-Hossaini at the Jenkins Street property for rent arrears of $1,750.
m)By 19 September 2007 the arrears were $1,890, which the Corporation paid in full to secure the continuation of Mr and Mrs Ali-Hossaini’s tenancy.
n)At a Consumer Trader and Tenancy Tribunal hearing on
3 October 2007 orders were made for termination and possession of the Jenkins Street property on the grounds of rental arrears as Mr Ali-Hosaini had not made his portion of the rental payments.o)On 9 November 2007 a case conference was held which included Mr Ali-Hossaini and his wife’s support workers; Mr Ali-Hossaini stated that he would only accept Corporation accommodation in East Ryde, Epping, Hornsby, Marsfield, Normanhurst, North Ryde, Pennant Hills or Thornleigh.
p)By 12 February 2008 a Corporation property at 14 Longview Street in Eastwood had become available, but would need to be modified. On 19 February 2008 Mr Ali-Hossaini accepted this property.
q)On 11 April 2008 the Corporation was advised that the Ali-Hossaini family were required to vacate their Jenkins Street house by 24 April. On 23 April the Corporation Area Director approved temporary emergency accommodation for the family and that furniture removal and storage be provided for the Ali-Hossaini family at Corporation expense.
r)Temporary accommodation was secured from 2 May 2008 for the family at the AMG Apartments at Ryde at a cost to the Corporation of $1,666 per week.
s)Modifications to the Longview Street house were not completed until early July 2008 partly because of wet weather delays. During the interim the family stayed at temporary accommodation at Corporation expense. I accept that this accommodation was cramped and uncomfortable. The total cost to the Corporation of the temporary accommodation from May to July 2008 was $14,994. The total cost to the Corporation of the removalist was $957. The total cost of the modifications to the Longview Street property was about $80,000. The family moved into the Longview Street house in July 2008.
t)Mr Ali-Hossaini is still seeking further work to the property at Longview Street, including a cover over the rear deck and a ramp.
Mr and Mrs Ali-Hossaini’s difficulty in this case is that the evidence does not point to any instance where Mrs Ali-Hossaini (or indeed any member of the family) has been treated less favourably by the Corporation than a person without multiple sclerosis. Indeed, the applicants have not identified any comparator. They have simply pointed to their own difficulties.
Neither does the evidence point to any requirement, condition or practice that has been imposed on Mrs Ali-Hossaini (or any member of the family) by the Corporation with which they could not comply because of Mrs Ali-Hossaini’s disability. The applicants would no doubt seek to argue that they have been disadvantaged by the limitations placed by the Corporation on the provision of priority housing, but their unwillingness to accept those limitations falls far short of an inability to comply.
As to the allegation of harassment, while it might be accepted that the family has been the victim of nuisance phone calls (and they have provided audio evidence of such calls) there is no evidence of any harassment by any officer or employee of the Corporation. I further accept that even if such evidence were available, it would not follow that the Corporation should be held liable for a criminal or tortuous act by one of its employees undertaken without its knowledge or approval. In his oral evidence, Mr Ali-Hossaini focused on telephone calls that were received whilst the family was residing in temporary accommodation in a motel. It was apparent from that evidence that the likelihood is that the calls made at that time were made by another disabled public housing resident living in the motel at the time. There is a suggestion that that person might have been suffering from some form of mental disability.
In summary, the applicants have had a generous opportunity to put forward all of the evidence they wished in support of their claims. As distressing as this evidence is, and as difficult as Mr Ali-Hossaini’s life has been since Mrs Ali-Hossaini became severely disabled, none of it goes to any discrimination that Mrs Ali-Hossaini or any member of her family have suffered at the hands of officers of the Corporation. Specifically, for the purposes of ss.5 to 11 inclusive of the DDA:
a)there was no evidence that the Corporation treated or proposed to treat the Ali-Hossaini family, or any member of that family, less favourably than it would treat a person without Mrs Ali-Hossaini’s disability;
b)there was no evidence that the Corporation has failed to make reasonable adjustments which would have the effect of treating the Ali-Hossaini family, or any member of that family, less favourably than it would treat a person without Mrs Ali-Hossaini’s disability;
c)there is no evidence that the Ali-Hossaini family, or any member of that family, is unable to comply with a requirement or condition imposed by the Corporation that may disadvantage any of them in relation to the provision of public housing or rental assistance.
I conclude that Mr and Mrs Ali-Hossaini have no reasonable prospect of successfully prosecuting the proceeding seeking relief under the Australian Human Rights Commission Act for alleged disability discrimination and accordingly, the Application in a Case should be granted and the principal application should be dismissed, pursuant to rule 13.10(a) of the Federal Magistrates Court Rules. I will so order.
I will hear the parties as to costs.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 27 October 2010
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