Chung v University of Sydney
[2001] FMCA 94
•20 September 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHUNG v UNIVERSITY OF SYDNEY | [2001] FMCA 94 |
| HUMAN RIGHTS – Racial discrimination and disability discrimination. PRACTICE AND PROCEDURE – Summary dismissal of an application disclosing no reasonable cause of action. |
Disability Discrimination Act 1992 (Cth), ss.5, 22(2)
Federal Court of Australia Rules
Federal Magistrates Court Rules
Racial Discrimination Act 1975 (Cth), s.9
Assal v Dpartment of Health, Housing and Community Services (1992) EOC ¶92-409
Cubillo v Commonwealth (1999) 163 ALR 395
Ebber v Human Rights and Equal Opportunity Commission (1995) 129 ALR 455
General Steel Industries Inc v Commissioner for Railways of NSW (1964) 112 CLR 125
McKellar v Container Terminal Management Services Limited (1999) 165 ALR 409
Nagashinghe v Worthington (1994) 36 ALD 193
Re Morton; ex parte Mitchell Products Pty Limited [1996] 828 FCA 1, 21 ACSR 497
Tardy v Secretary, Department of Community Services and Health (unreported, 9 October 1990, per McLelland J)
Webster v Lampard (1993) 177 CLR 598
| Applicant: | YO HAN CHUNG |
| Respondent: | UNIVERSITY OF SYDNEY |
| File No: | SZ365 of 2001 |
| Delivered on: | 20 September 2001 |
| Delivered at: | Sydney |
| Hearing date: | 20 September 2001 |
| Judgment of: | Driver FM |
REPRESENTATION
| Applicant in person. |
| Counsel for the Respondent: | Ms K Eastman |
| Solicitors for the Respondent: | Minter Ellison |
ORDERS
Pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules, the applicant’s application to this Court is dismissed generally.
The applicant is to pay the respondent’s costs of the application, including any reserved costs.
Pursuant to rule 21.02(2) of the Federal Magistrates Court Rules, the amount of costs are set as the amount payable for a stage 2 proceeding under Schedule 1 of the Federal Magistrates Court Rules, that sum being $1135 plus the daily hearing fee.
The Court certifies that pursuant to Rule 21.15, it was reasonable for the respondent to employ an advocate at the hearing held on 20 September 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ365 of 2001
| JO HAN CHUNG |
Applicant
And
| UNIVERSITY OF SYDNEY |
Respondent
REASONS FOR JUDGMENT
Background
These proceedings arise out of a complaint made by the applicant to the Human Rights and Equal Opportunity Commission which was terminated by the Commission on 20 March 2001. The President of the Commission in his advice to the applicant formed the opinion that the complaints of the applicant were lacking substance and I have before me the reasons of the President supporting that conclusion. The applicant subsequently, on 10 April 2001, filed an application in Federal Court and that application was transferred to this Court on 29 June 2001. The matter then proceeded before me. I determined that the best way to proceed with this matter was to entertain an application under Rule 13.10 of the Federal Magistrates Court Rules (“the Federal Magistrates Court Rules”) seeking the summary disposal of the application.
That application was subsequently made by the university. That was filed on 11 September and seeks that the application by Mr Chung be permanently stayed or dismissed pursuant to Rule 13.10(a) and (c) of the Federal Magistrates Court Rules. The university also seeks its costs. The applicant's claim of discrimination is not entirely clear but it is clear that it is based on allegations of both racial discrimination and disability discrimination. The applicant is Korean and he also asserts that he suffers from a depression illness. Earlier in the history of the matter it appeared that he was diagnosed as suffering from an anxiety disorder. Whether the disability is depression or anxiety I am prepared to accept for the purposes of the application for summary disposal that the applicant is suffering from a mental disability recognised under the Disability Discrimination Act 1992 (Cth) (“the Disability Discrimination Act”).
The applicant, Mr Chung, has not specified in his original application to this Court or to the Federal Court the particular provisions of the Racial Discrimination Act 1975 (“the Racial Discrimination Act”) and the Disability Discrimination Act that he is relying on but it does appear that the application is founded on s.9 of the Racial Discrimination Act and ss.5 and 22(2) of the Disability Discrimination Act. I will proceed with the matter today on that basis. Similarly, the allegations of discrimination advanced by the applicant, Mr Chung, are not entirely clear and particular incidents and concerns have been advanced by Mr Chung in his documents and orally before me today.
Mr Chung has today referred to an incident during a psychology tutorial class which he says occurred during his second year studies. The university, it appears, believes the incident happened in 1997, if it happened, which is not admitted. Mr Chung says that he was asked to work alone during a group session because he was Asian and he also alleges that he was excluded from a physiotherapy course because of his poor English skills. The allegations of disability discrimination are that the university failed to give Mr Chung a passing grade in one subject even though it was entitled to do so because he had been ill. Secondly, that Miss Maxwell, an agent or employee of the university, had demanded a medical clearance for his clinical education. Thirdly, that Mr Chung was misled about whether he needed to sit the cardio-pulmonary 2 physiotherapy exam and finally, that he was excluded from a physiotherapy course because of his disability. Perhaps finessing that somewhat, Mr Chung has told me today that he is concerned in particular about his exclusion from the practical physiotherapy course on the basis of him having failed to complete the cardio-pulmonary 2 physiotherapy exam when Mr Chung believed that he had satisfactorily completed that course.
Ms Eastman has in her written submissions referred to the factual background to the complaints and from my perusal of the documents in issue in the proceedings it does appear to me that that description of the factual background is accurate. The documents I have before me are the initial application by Mr Chung in the Federal Court of Australia, a supporting affidavit filed on 10 April 2001, particulars of Mr Chung's application filed on 13 August 2001, an affidavit by Mr Chung filed on 3 September 2001, the application I have before me today filed on 11 September 2001, the respondent university's outline of submissions filed on 13 September 2001, the university's supporting affidavit filed on 13 September 2001 and Mr Chung's affidavit in reply filed on 19 September 2001.
I adopt, in particular, as an accurate description of the factual background to the complaints paragraphs 21 to 35 of Ms Eastman's written submissions. I don't think it's necessary for me to read those directly on to the transcript but I do adopt that background. Ms Eastman has also referred to the power of the Court to summarily dismiss the application and I accept her submissions as to the relevant legal principles. The power of the Court derives from Rule 13.10 of the Federal Magistrates Court Rules which is very similar in terms to Order 20, rule 2 of the Federal Court of Australia Rules. The general principles for summary dismissal were set out in the case of McKellar v Container Terminal Management Services Limited (1999) 165 ALR 409, particularly at pages 415 to 417.
In that case, His Honour Weinberg J said that it is clearly established that the jurisdiction of the Court (in that case the Federal Court but equally this Court) to dismiss a claim on the basis that it discloses no reasonable cause of action is to be sparingly invoked and His Honour referred to a number of authorities in support of that general proposition. He noted in particular the strict approach taken in the United Kingdom and referred to several United Kingdom authorities that had been canvassed by His Honour O'Loughlin J in Cubillo v Commonwealth (1999) 163 ALR 395 at 415 to 416 and His Honour Weinberg J went on:
[Those authorities] “confirm that a proceeding should not be dismissed summarily merely on the ground that it appears, at the early stage of the hearing that the motion brought for that purpose, to advance a highly implausible claim which will very probably fail, but only where the claim may properly be described as unarguable and almost incontestably bad, or where the claim is otherwise objectionable as an abuse of process of the Court.”
His Honour did, however, qualify that statement by noting that new civil procedure rules in the United Kingdom proposed some liberalisation in the grounds supporting summary dismissal.
We are in this case dealing with an unrepresented litigant and some special considerations apply in such a case. They were referred to by His Honour Sackville J in re Morton; ex parte Mitchell Products Pty Limited (1996) 21 ACSR 497 at 513 to 514. I am reading from the report of the judgment at 828 FCA 1.
At page 20 of that decision His Honour referred to the general principles applying in the case of a strike out application; he referred to the relevant Federal Court rules and continued:
“The authorities … make it clear that those powers must be exercised with ‘exceptional caution’. The case must be very clear indeed to justify the summary intervention of the Court, to deny a litigant the opportunity to present his or her case to the Court.”
His Honour went on to deal with circumstances of frivolity or vexation. At page 21 His Honour continued that it may be possible, rather than to dismiss a pleading, to allow that pleading to be amended. His Honour referred to an unreported decision of McLelland J in Tardy v Secretary of the Department of Community Services and Health decided on 9 October 1990. In that case the Court was dealing with a claim prepared by a lay person which the judge described as “a polemical document of a discursive and argumentative nature which includes extravagantly expressed assertions of criminal and immoral conduct and propensities on the part of numerous persons”. The Court noted that rather than dismiss a proceeding entirely account needed to be taken of the possibility that an unrepresented litigant could be assisted to get their application into proper form for consideration by the Court.
Later, however, at page 21 His Honour went on to note:
“On the other hand the Court must have regard not merely to the litigant in person but also the position of the other party or parties concerned and what is required, in justice, to prevent the unnecessary expenditure of public and private resources.”
His Honour concluded this part of his judgment with the words:
“Where a party appears in person he will ordinarily be at a disadvantage. That does not mean that the Court will give to the other party less than he is entitled to. Nor will it confer upon the party in person advantages which, if he were represented, he would not have. But the Court will, I think, be careful to examine what is put before it by a party in person to ensure that he is not, because of the lack of legal skill, failed to claim rights or put forward arguments which otherwise he might have done.”
I accept that there is an obligation upon me to satisfy myself that there is no arguable case to be put forward by Mr Chung in these proceedings before I accede to the application to dismiss the proceedings and that I should in that consideration not limit myself to the arguments put by Mr Chung but independently consider whether an arguable case based on the material could be made out.
Ms Eastman has referred to other authorities as relevant in establishing the general principles. She has noted that it is acknowledged that the power to order summary judgment must be exercised with exceptional caution, which I have already noted and she refers to the decision of General Steel Industries Incorporated v The Commissioner for Railways of New South Wales (1964) 112 CLR 125 at 129 and 30. Ms Eastman also refers to the decision of the High Court in Webster v Lampard (1993) 177 CLR 598 at 682 which makes it clear that the issue to be considered by the Court in an application for summary judgment is not whether the applicant would probably succeed in his action but whether the material before the judge is such that the action should not be permitted to go to trial in the ordinary way because it is apparent that it must fail. I take that to be another way of saying that the material presented did not support an arguable case.
Ms Eastman's submissions go on to say that in the context of the application of Commonwealth discrimination legislation there have been a number of decisions that touch upon the issue or the grounds on which a complaint may be dismissed as lacking in substance. She refers in particular to the decision in Ebber v The Human Rights and Equal Opportunity Commission (1995) 129 ALR 455 and 468 which were proceedings brought under the Administrative Decisions (Judicial Review) Act 1977. In that case His Honour Drummond J considered whether or not the Commission had properly dismissed a claim as lacking in substance under what was then section 25X of the Racial Discrimination Act. His Honour is quoted as expressing a test in the following terms:
“A complainant must therefore have at the outset of the inquiry into his complaint sufficient material, it need not be legally admissible evidence, … to show that he has more than a remote possibility of a well founded claim if he is to defeat an application for summary dismissal of the case that can be made out at the start of the inquiry. The test the complainant has to pass under section 25X does not involve a high hurdle and a summary power of dismissal is only exercisable in any event in clear cases. There is nothing in the RDA that lends any support to the notion that section 25X authorises, as an ordinary step in the whole of an inquiry [under the applicable provision] something in the nature of a preliminary hearing of the kind that is held in the charges of serious criminal offences.”
A similar test it seems was applied in later cases, in particular Nagashinghe v Worthington (1994) 36 ALD 193 and Assal v Department of Health, Housing and Community Services (1992) EOC ¶92-409.
As Ms Eastman submits, the principle to be derived from those cases is that a complaint which presents no more than a remote possibility of merit and does no more than hint at a just claim should be dismissed as lacking in substance. I accept that submission, subject to the proviso that under the legislation as it now stands, this Court stands in a different position to the Commission and cannot simply rely upon an assessment of a complaint made by the Commission. This Court must look at the matter afresh and, if anything, must be more rigorous in doing so, so as to ensure that justice is done to both parties.
Ms Eastman has pointed out that the onus is on an applicant to establish that the respondent has discriminated against him or her and I accept that. Nevertheless, the respondent university has the onus of satisfying me that I should exercise the power conferred on me to dismiss the application summarily on the basis that no reasonable cause of action is disclosed. The university submits that the application in these proceedings should be dismissed for the following reasons.
First, neither the application, the particulars nor the affidavit filed by the applicant discloses any evidentiary foundation for the claim of either race or disability discrimination. Secondly, the material filed by the applicant discloses that the university provided him with additional services and facilities not provided to other students. Indeed, the university went to great lengths to assist the applicant when he was a student. Thirdly, there was nothing in the material which demonstrates any causal nexus to the alleged acts of discrimination and the applicant's race. Finally, there was nothing in the material which demonstrates any causal nexus to the alleged acts of discrimination and the applicant's disability.
The university submits that, taking the applicant's case at its highest, even though the applicant may hold a firm belief that he has been subjected to discrimination, these beliefs are not supported by the evidence of what action was taken by the university and his claims of discrimination are untenable and doomed to fail. After hearing the parties today and myself examining the available material I am inevitably drawn to the conclusion that the university's submissions should be accepted. The material I have indicates that Mr Chung suffered from a mental disability before he came to the University of Sydney and that undermines significantly his assertion that his disability was stimulated by an incident in his second year of studies in 1997 when he was allegedly asked to undertake a group activity alone.
That incident is presented by the applicant as a major, if not the major, allegation of racial discrimination but there is nothing on which a plausible case could be made out supporting a proposition that if that incident occurred at all it occurred with any connection to Mr Chung's race. It is apparent that Mr Chung suffered difficulties in coping with his university studies almost from the outset. It is also apparent that the university made a substantial effort, in fact a very substantial effort, to attempt to assist him with his studies to enable him to complete his course successfully. Ultimately, after seven years the university felt that it was unable to continue with those efforts and took the decision to exclude Mr Chung.
Mr Chung has referred to concern he had that some of his medical certificates were not accepted by the university by reason of them coming from an Asian medical practitioner but there was nothing on which I could form a view that there is any substance to that concern. It is clear that the university accepted a number of medical certificates for the purposes of making special arrangements for Mr Chung.
Mr Chung also considers that the university treated him inappropriately in suggesting that he had time off from his studies but that in itself would not support a successful case of disability discrimination because it would not be treating him adversely, relative to other people. I think it simply indicates that the university was doing its best to attempt to make arrangements for Mr Chung that would assist him. The university made other arrangements in addition including allowing Mr Chung to sit repeat examinations and allowing him to attempt to repeat courses at a later time. Mr Chung's academic record indicates that over all, despite those efforts by the university, he was largely unsuccessful in completing the requirements of his academic studies. The university had a policy of maintaining academic standards. The university was entitled, consistent with its policy and in fairness to other students, to decide at the point that it did decide that it could no longer grant special accommodation to Mr Chung.
There is mention in the documents of Mr Chung's difficulties with the English language and I should consider whether there is anything in that that could support a claim of racial discrimination. I do not think that it could in that the university is training persons to undertake medical practice within Australia and it is reasonable, indeed essential, for the protection of the public and the maintenance of proper standards, that in that training students are able to undertake their studies effectively in the English language. I find that that issue would not support a claim of racial discrimination.
I have considered carefully whether there is anything else in the material that could support a claim of racial discrimination or disability discrimination and I have been drawn to the conclusion that there is nothing.
Mr Chung clearly suffers from a disability, be it an anxiety disability or a depression disability, that continues to this time. He has been unable to accept the appropriateness of the way that he has been dealt with by the university and that has led him to this point. In the course of these proceedings I attempted to assist him by referring him for legal assistance under Part 12 of this Court's Rules but that did not turn out to be productive. In addition to the general principles that I have referred to in relation to the exercise of the discretion of summary dismissal it seems to me that there are cases where it is in the interests of justice that litigants be given some protection from themselves.
It seems to me that this is such a case.
By disposing of these proceedings now Mr Chung will be limited in his costs liability. It seems to me inevitable that if the proceedings continue to a full hearing Mr Chung would be wholly unsuccessful and would be unable to resist an order that he pay substantial costs that would have been incurred by the university. Accordingly, I think it is in the interests of both the parties and also in the public interest, in terms of the efficient disposition of court resources, that no further time is devoted to these proceedings. Therefore, I will order, pursuant to Rule 13.10(a), that Mr Chung's application to this Court be dismissed generally. In addition, I will order that Mr Chung pay the respondent university's costs of the application, including any reserved costs, pursuant to Rule 21.02(2).
I set the amount of the costs as the amount payable for a stage 2 proceeding under schedule 1 to the Federal Magistrates Court Rules. That entitles the university to a sum of $1135 plus the daily hearing fee provided for. For the purposes of Rule 21.15 I also certify that it was reasonable for the university to employ an advocate to appear at today's hearing.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 5 October 2001
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