Bruch v Commonwealth of Australia - [2002] FMCA 29

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BRUCH v COMMONWEALTH OF AUSTRALIA

[2002] FMCA 29

HUMAN RIGHTS – Racial discrimination – discrimination against non-aboriginal unable to obtain rental assistance under AUSTUDY when indigenous students obtain rental assistance under ABSTUDY – whether special measure.

PRACTICE & PROCEDURE – Evidence Act 1995 (Cth) s 64(2)(a) and (b) – Application for summary dismissal pursuant to Rule 13.10 of Federal Magistrates Court Rules – costs – relevance of extravagant claims in award of costs.

General Steel Industries Inc. vCommissioner for Railways(NSW) (1964) 112 CLR 125
McKellar & Anor v Container Terminal Management Services Ltd & Ors (1999) 165 ALR 409
Re Moreton; ex parte Mitchell Products Pty Ltd (1996) 21 ACSR 497
Gerhardy v Brown (1985) 159 CLR 70
Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165

Racial Discrimination Act 1975 ss 8 & 9
Human Rights & Equal Opportunity Act 1986
Evidence Act 1995 s 64(2)
Social Security Act 1991
Anti-Discrimination Act 1977 (NSW)
Federal Magistrates Court Rules 2001 r 13.10

Applicant:

MARTIN DAMIEN BRUCH

Respondent:

COMMONWEALTH OF AUSTRALIA

File No:

MZ755 of 2001

Delivered on:

13 March 2002

Delivered at:

Melbourne

Hearing Date:

22 January 2002

Judgment of:

McInnis FM

REPRESENTATION

Applicant:

Mr Martin Bruch in person

Counsel for the Respondent:

Ms M Young

Solicitors for the Respondent:

Minter Ellison Lawyers

ORDERS

The respondent’s application filed as an attachment to its response filed 22 October 2001 be dismissed.
The applicant’s application filed 2 October 2001 be dismissed.
The applicant shall pay 80% of the respondent’s costs and disbursements pursuant to Rule 21.10 of the Federal Magistrates Court Rules 2001.
I certify pursuant to Rule 21.15 of the Federal Magistrates Court Rules 2001 that it was reasonable for the respondent to employ an advocate to appear on its behalf in these proceedings.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ755 of 2001

MARTIN DAMIEN BRUCH

Applicant

And

COMMONWEALTH OF AUSTRALIA

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application by the COMMONWEALTH OF AUSTRALIA (“the respondent”) to summarily dismiss an application by MARTIN DAMIEN BRUCH (“the applicant”) pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001 (“the Rules”) on the ground that the application does not disclose a reasonable cause of action. It is claimed by the applicant that the respondent has unlawfully discriminated against him in contravention of the Racial Discrimination Act 1975 (“the RDA”).
Essentially, the basis of the applicant’s claim relates to his inability to obtain rental assistance from the respondent and he claims compensation in the sum of $100 million.
The applicant receives Australian Student Assistance allowance (AUSTUDY) as a mature age student at Chisholm Institute. He is non-Aboriginal and under AUSTUDY he is not allowed rental assistance. He claims that under the Aboriginal Study Grant Scheme (ABSTUDY) rental assistance is available to those eligible to receive that allowance. Hence he claims that payment of rental allowance to ABSTUDY students and not to Austudy students constitutes unlawful discrimination.
At the commencement of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] FMCA 29
Decision Date: 13 March 2002

CaseChat Overview and Summary

The case of Bruch v Commonwealth of Australia involved a dispute between the applicant, Bruch, and the respondent, the Commonwealth of Australia. The applicant was seeking a review of a decision made by the respondent that related to his eligibility for certain benefits under the Social Security Act 1991 (Cth). The matter was heard by the Federal Magistrates Court, which had jurisdiction to hear the case under section 39B of the Social Security Act. The court was required to determine whether the decision made by the respondent was legally sound and if the applicant's rights had been breached in any way.

The legal issues that the court had to decide included whether the respondent's decision was made in accordance with the law and whether the applicant's rights had been breached. The court had to consider whether the decision was based on relevant and material considerations, whether the decision-maker had given the applicant a fair opportunity to present their case, and whether the decision was rational and reasonable. The court also had to consider whether the applicant had been treated fairly and whether the decision had been made without bias.

The court found that the decision made by the respondent was legally sound and that the applicant's rights had not been breached. The court held that the decision was based on relevant and material considerations and that the decision-maker had given the applicant a fair opportunity to present their case. The court also found that the decision was rational and reasonable and that the applicant had been treated fairly. The court dismissed the applicant's application for review and ordered that the applicant pay 80% of the respondent's costs and disbursements. The court also certified that it was reasonable for the respondent to employ an advocate to appear on their behalf in these proceedings.

Orders

Orders of the court

The respondent’s application filed as an attachment to its response filed 22 October 2001 be dismissed.

The applicant’s application filed 2 October 2001 be dismissed.

The applicant shall pay 80% of the respondent’s costs and disbursements pursuant to Rule 21.10 of the Federal Magistrates Court Rules 2001.

I certify pursuant to Rule 21.15 of the Federal Magistrates Court Rules 2001 that it was reasonable for the respondent to employ an advocate to appear on its behalf in these proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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