Budini v Sunnyfield

Case [2019] FCA 2164

FEDERAL COURT OF AUSTRALIA

Budini v Sunnyfield [2019] FCA 2164

File number: SAD 266 of 2018
Judge: CHARLESWORTH J
Date of judgment: 20 December 2019
Catchwords: HUMAN RIGHTS – discrimination – application for leave to commence a proceeding alleging unlawful discrimination in contravention of the Disability Discrimination Act 1992 (Cth) – where a complaint of discrimination was terminated by the Australian Human Rights Commission under s 46PH(1)(b) of the Australian Human Rights Commission Act 1986 (Cth) by reason of delay between the events complained of and the lodging of the complaint – whether the second applicant is an “affected person” having standing to apply for leave – consideration of matters affecting the discretion to grant leave – relevance of delay to the exercise of the discretion – length of delay – whether second applicant reasonably able to formulate and lodge a complaint on behalf of the first applicant at an earlier time – whether the proposed claim has reasonable prospects of success – consideration of multiple claims of unlawful discrimination separately and accumulatively – consideration of other factors relevant to the exercise of the discretion – leave refused
Legislation:

Australian Human Rights Commission Act 1986 (Cth) ss 3, 46P, 46PH, 46PO, Pt IIB

Disability Discrimination Act 1992 (Cth)

Evidence Act 1995 (Cth) s 191

Human Rights Legislation Amendment Act 2017 (Cth) s 39

Federal Court Rules 2011 (Cth) rr 9.63, 26.01, 34.163

Cases cited:

Access For All Alliance (Hervey Bay) Inc v Hervey Bay City Council (2007) 162 FCR 313

Barnes v Addy LR 9 Ch App 244

James v WorkPower Inc [2018] FCA 2083

Munday v Commonwealth (No 2) (2014) 226 FCR 199
Date of hearing: 12 February, 18 February 2019
Date of last submissions: 3 December 2019:  Respondents
10 December 2019:  Applicants
Registry: South Australia
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 180
Counsel for the Applicants: Mr T Hurren
Solicitor for the Applicants: Harmers Workplace Lawyers
Counsel for the Respondents: Mr E Belperio
Solicitor for the Respondents: Clayton Utz
Table of Corrections
14 July 2020 In paragraph 66 line four “explanation marks” has been replaced with “exclamation marks”

ORDERS

SAD 266 of 2018
BETWEEN:

ENRICA BUDINI

First Applicant

MICHAEL BUDINI

Second Applicant
AND:

SUNNYFIELD ACN 000415127

First Respondent

MARK CLAYTON

Second Respondent

JUDGE:

CHARLESWORTH J

DATE OF ORDER:

20 DECEMBER 2019

THE COURT ORDERS THAT:

1.The applicants’ interlocutory application dated 22 October 2018 is dismissed.

2.All parts of the amended originating application seeking relief under the Australian Human Rights Commission Act 1986 (Cth) for contraventions of the Disability Discrimination Act 1992 (Cth) are struck out.

3.Any application for a person to be appointed as the first applicant’s litigation representative in respect of any remaining cause of action to be pursued by her is to be filed and served on or before 7 February 2020.

4.In the event that the second applicant makes an application to act as the first applicant’s litigation representative, the application is to…

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AGLC
Budini v Sunnyfield [2019] FCA 2164
Case
[2019] FCA 2164
Decision Date

CaseChat Overview and Summary

The case of Budini v Sunnyfield involved Enrica Budini, who has Down Syndrome and was a resident of Sunnyfield, a disability service provider. Michael Budini, Enrica's nephew and guardian, sought to bring a proceeding alleging unlawful discrimination by Sunnyfield in contravention of the Disability Discrimination Act 1992 (Cth). The court had to determine whether the delay in lodging the complaint affected the exercise of the discretion to grant leave and whether the proposed claim had reasonable prospects of success.

The court found that Michael Budini was not credible in his explanation for the delay in lodging the complaint, and the delay was prejudicial to the respondents. The court also found that Michael Budini had knowledge of the essential facts necessary to bring the complaint at an earlier time and that he had no adequate explanation for his failure to do so. The court further found that the claims had no reasonable prospect of success because the matters complained of did not, on any reasonable view, amount to unlawful discrimination in contravention of the DD Act, and the allegations were made without any proper evidentiary foundation.

The court refused to grant leave to commence the proceeding and ordered that the parts of the amended originating application alleging an entitlement to remedies for unlawful discrimination in contravention of the DD Act be struck out. The court also set down various dates for filing applications and affidavits in relation to the remaining causes of action and the respondents' application for costs.

Orders

Orders of the court

1. The applicants’ interlocutory application dated 22 October 2018 is dismissed.

2. All parts of the amended originating application seeking relief under the Australian Human Rights Commission Act 1986 (Cth) for contraventions of the Disability Discrimination Act 1992 (Cth) are struck out.

3. Any application for a person to be appointed as the first applicant’s litigation representative in respect of any remaining cause of action to be pursued by her is to be filed and served on or before 7 February 2020.

4. In the event that the second applicant makes an application to act as the first applicant’s litigation representative, the application is to be accompanied by an affidavit specifying which remaining causes of action are intended to be pursued on behalf of the second applicant in his own name and right.

5. In the event that any application filed pursuant to the order in paragraph 3 is opposed by the respondents, the respondents are to file and serve any affidavit upon which they seek to rely on or before 21 February 2020.

6. The matter be set down for a case management hearing on a date to be fixed.

7. On or before 7 February 2020, the respondents are to inform the Court of any contention that the presiding judge should not be disqualified.

8. The respondents’ application for costs be set down for hearing at 10:00am on 27 February 2020.

9. On or before 13 February 2020, the respondents are to file and serve any material on which they seek to rely on their application for costs.

10. On or before 20 February, the applicants are to file and serve any material in response.

11. Liberty to apply.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

As a consequence, orders should be made striking out those parts of the amended originating application alleging an entitlement to remedies for unlawful discrimination in contravention of the DD Act.BACKGROUNDEvidence and agreed facts The following facts are extracted from a statement of agreed facts (SOF) signed by the parties for the purposes of s 191 of the Evidence Act 1995 (Cth):1Enrica Budini1.1The first Applicant Enrica Budini (Ms Budini) was born on 29 May 1959 and is 59 years of age.1.2Ms Budini is an Australian citizen.1.3Ms Budini is the aunt of the second Applicant Mr Michael Budini (Michael Budini).1.4Ms Budini has Down Syndrome.1.5Ms Budini's Down Syndrome includes a permanent intellectual disability, developmental delay and certain physical disabilities.2Ms Budini’s finances2.1Ms Budini is the primary beneficiary of a trust established in or about September 2005 to sustain her (Trust).2.2Perpetual Trustee Company Limited (Perpetual) is the trustee of the Trust.2.3Following Ms Budini’s death; the residue of the Trust will be distributed as follows:(a)25% of the residue to Mr Peter Budini, Ms Budini's brother (Peter Budini); and(b) the balance to a company related to Mr Michael Budini.3Care arrangements3 .1Sunnyfield is a disability service established as an incorporated Australian public company, limited by guarantee and registered as a not-for-profit charity with the Australian Charities and Not-for-profits Commission.3.2Sunnyfield provides, and throughout the Relevant Period provided, disability care services throughout NSW, including at the Sunnyfield Hostel 1ocated in Allambie Heights (Allambie Heights Home).3.3Ms Budini’s mother, Maria Budini, died in 2004.3.4Prior to 2004, and by reason of the illness (and subsequent death) of Maria Budini, Ms Budini entered the care of Sunnyfield as a permanent resident in the Allambie Heights Home.3.5Ms Budini remained a resident of the Allarnbie Heights Home, and in the care of Sunnyfield, throughout the Relevant Period.3.6Ms Budini departed Sunnyfield with Michael Budini on 7 September 2016. She did not return. Her belongings were left at Sunnyfield.3.7As at 4 September 2016, Dr Clayton was a General Manager of Sunnyfield NDIS Transition & Service Improvement and from 15 December 2016 to June 2017 was General Manager of Sunnyfield Shared Living Services3.8Dr Clayton held the position of General Manager of Sunnyfield Shared Living Services from 10 September 2012 to 10 December 2015.3.9 Dr Clayton ceased employment by Sunnyfield on 23 January 2018.3.10 Ms Budini participated in various holidays during the Relevant Period.4 Guardianship and Administration4.1At all material times (including throughout the Relevant Period) each of Peter Budini and Michael Budini lived in Adelaide.4.2Prior to February 2015, Peter Budini had been acting in the capacity of guardian of Ms Budini.4.3 Peter Budini is 86 years of age.4.4On 26 February 2015, the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) made an order appointing Michael Budini as the guardian of Ms Budini.4.5On 26 February 2016, NCAT made an order re-appointing Michael Budini as the guardian of Ms Budini.4.6On 31 August 2016, Dr Clayton applied to NCAT to review the order appointing Michael Budini as Ms Budini’s guardian, upon the ground that Michael Budini’s proposal to move Ms Budini from the Allambie Heights Home permanently to Adelaide was allegedly not in Ms Budini’s best interests and due to alleged concerns as to the manner in which Mr Michael Budini was exercising his authority as guardian.4.7 On 7 October 2016, NCAT:(a)confirmed the continuing appointment of Michael Budini as the guardian of Ms Budini; and(b) dismissed the application made by Dr Clayton.4.8On 1 December 2016, the South Australian Civil and Administrative Tribunal (SACAT) appointed Michael Budini as the guardian of Ms Budini pursuant to the Guardianship and Administration Act 1993 (SA),4.9On 4 July 2017, NCAT made orders:(a)renewing the appointment of Michael Budini as the guardian of Ms Budini; and(b)for the purpose of giving Michael Budini the power to perform the function of obtaining legal services for Ms Budini.4.10On 20 December 2017, SACAT renewed the appointment of Michael Budini as the guardian of Ms Budini pursuant to the Guardianship and Administration Act 1993 (SA),4.11On 29 October 2018, NCAT made an order appointing Michael Budini as the financial manager of the estate of Ms Budini. A copy of that order is annexed and marked A.5Initial Complaint5.1By letter dated 29 March 2017, Michael Budini made a number of allegations in relation to Ms Budini’s care and asserted claims against Sunnyfield. A copy of that letter is annexed and marked B.5.2On 10 April 2017, Michael Budini emailed Sunnyfield through its lawyers, Clayton Utz. A copy of that email is annexed and marked C.5.3Michael Budini sent further emails to Clayton Utz on 13 April 2017 and 15 April 2017. Clayton Utz responded to those emails on 18 April 2017. A copy of that email chain is annexed and marked D.5.4Clayton Utz responded to Michael Budini's letter dated 29 March 2017 by letter on 20 April 2017. A copy of that letter is annexed and marked E.5.5On 1 May 2017, Michael Budini responded to Clayton Utz’ letter dated 20 April 2017. A copy of that letter is annexed and marked F.5.6Michael Budini appeared on an episode of Today Tonight, Adelaide (Today Tonight Episode) which was broadcast on 17 May 2017, and which reported on his claims against Sunnyfield in respect of Ms Budini.5.7Michael Budini forwarded a copy of a link to the Today Tonight Episode to Clayton Utz by email on 20 May 2017. A copy of that email is annexed and marked G.5.8By letter dated 25 May 2017, Sunnyfield wrote to Senator The Honourable Nick Xenophon, who had appeared on the Today Tonight Episode, for the purpose of refuting Michael Budini’s claims against Sunnyfield in respect of Ms Budini. A copy of that latter is annexed hereto and marked H.5.9On 30 May 2017, Michael Budini forwarded an email to Clayton Utz from David Purcell, Nelson McKinnon Litigation Funding Solutions. A copy of that email is annexed hereto and marked I.5.10Michael Budini and Clayton Utz met on 30 May 2017. Following that meeting, no further correspondence or other communication was received by Clayton Utz from Michael Budini prior to the complaint made to the Australian Human Rights Commission (AHRC) below.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The respondents oppose the grant of leave on four broad bases. First, it is submitted that Michael Budini’s explanation for the delay should not be uncritically accepted. Second, it is submitted that the delay is prejudicial to them. Third, it is submitted that Michael Budini had knowledge of the essential facts necessary to bring the complaint at a much earlier time and that he has no adequate explanation for his failure to do so. Fourth, it is submitted that the claims have no reasonable prospect of success either because the matters complained of do not on any reasonable view amount to unlawful discrimination in contravention of the DD Act or because the allegations are made without any proper evidentiary foundation or because they are contradicted by contemporaneous communications authored by Michael Budini.Consideration There are many complaints, some of which are multifaceted. On the whole, I am not satisfied that Michael Budini learned of the essential facts in sufficient detail to make the allegations of unlawful discrimination as recently as he claims. I find that his claims as to when he had knowledge of certain matters are either directly contradicted by, or otherwise cannot be reconciled with, his contemporaneous communications with Sunnyfield over a period spanning several years. My conclusions in this regard vary as between the many and varied alleged acts of unlawful discrimination and will be further explained in the course of considering the respondents’ submission that the claims have no reasonable prospect of success. In relation to all of the allegations, I find that from at least October 2016, Michael Budini embarked on a course of correspondence with or including Sunnyfield that was far from conciliatory. The correspondence reveals that Michael Budini was in possession of the material he needed to formulate the complaint for a significant period before the complaint was lodged. Rather than lodge the complaint, Michael Budini devoted personal time and resources to making claims for an extravagant settlement sum against Sunnyfield, including by making demands and threats of adverse publicity. On 5 October 2016, Michael Budini sent a lengthy email to a representative of NCAT, copied to several workers at Sunnyfield. The email set out multiple detailed allegations toward Sunnyfield largely (but not entirely) encompassing the factual subject matter now sought to be agitated in this Court. The email is replete with capital letters, exclamation marks and rhetorical questions. It is immoderate in its tone. It refers to “proposed litigation” including litigation founded in “various breaches of anti-discrimination statutes” and asserts an entitlement to unquantified damages. On 29 March 2017 Michael Budini sent a letter to Sunnyfield on a letterhead identifying himself as a legal practitioner. The letter is signed by him in the capacity of “Lawyer and Enrica’s Guardian”. The letter makes allegations of overcharging, excessive expenditure, chronic abuse (including starvation, physical abuse and wrongful detention), fraud and dishonesty. It asserts that each of the allegations was an instance of direct and indirect disability discrimination in contravention of the DD Act and threatens proceedings for a claim said to be valued at $10 million.