Croker v State of NSW
[2003] FMCA 181
•19 May 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CROKER v STATE OF NSW & ANOR | [2003] FMCA 181 |
| HUMAN RIGHTS – Disability discrimination. PRACTICE AND PROCEDURE – Summary dismissal of an application disclosing no reasonable cause of action. |
Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.46PO
Disability Discrimination Act 1992 (Cth), ss.5, 6, 22
Chung v University of Sydney [2001] FMCA 94
McKellar v Container Terminal Management Services Limited (1999) 165 ALR 409
Re Morton; ex parte Mitchell Products Pty Limited [1996] 828 FCA 1, 21 ACSR 497
Ebber v The Human Rights and Equal Opportunity Commission (1995) 129 ALR 455
Nagasinghe v Worthington (1994) 36 ALD 193 and Assal v The Department of Health, Housing and Community Services (1992) EOC 92-409
Chung v University of Sydney & Ors [2002] FCA 186
Croker v Deputy Registrar of the High Court of Australia [2003] FCA 34 Croker v Commissioner of Taxation [2002] FMCA 128
| Applicant: | CLAYTON ROBERT CROKER |
| First Respondent: | SYDNEY INSTITUTE OF TAFE (STATE OF NEW SOUTH WALES) |
| Second Respondent: | UNIVERSITY OF TECHNOLOGY |
| File No: | SZ 382 of 2003 |
| Delivered on: | 19 May 2003 |
| Delivered at: | Sydney |
| Hearing date: | 9 May 2003 |
| Judgment of: | Raphael FM |
REPRESENTATION
| For the Applicant: | Mr Croker in person |
| Counsel for the First Respondent: | Ms C Ronalds |
| Counsel for the Second Respondent: | Ms K Eastman |
ORDERS
Application dismissed against both Respondents pursuant to Order 13 Rule 13.10 of the Federal Magistrates Court Rules.
Applicant to pay the respondents’ costs to be assessed in accordance with Part 21 Rule 21.10 of the Federal Magistrates Court Rules.
Certified that both respondents were entitled to employ an advocate to appear on their behalf pursuant to Rule 21.15.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 382 of 2003
| CLAYTON ROBERT CROKER |
Applicant
And
| SYDNEY INSTITUTE OF TAFE (STATE OF NEW SOUTH WALES) |
First Respondent
| UNIVERSITY OF TECHNOLOGY |
Second Respondent
REASONS FOR JUDGMENT
On 5 February 2003 the applicant Mr Clayton Robert Croker filed proceedings in the Federal Court pursuant to s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (the “HREOC Act”) alleging that the first and second respondents had each breached the Disability Discrimination Act 1992 (Cth). The particular section or sections of the Act which were alleged to have been breached were not nominated in the application but in the affidavit in support sworn by Mr Croker he made reference to a number of sections of that Act including s.22(1)(a), (b), (2)(a), (c). I am satisfied that as both respondents are educational institutions the thrust of Mr Croker’s complaint arises under this section which is in the following form:
“SECTION 22 EDUCATION
22(1) [Admission, terms and conditions] It is unlawful for an education authority to discriminate against a person on the ground of the person’s disability or a disability of any of the other person’s associates:
(a)by refusing or failing to accept the person’s application for admission as a student: or
(b)in the terms or conditions on which it is prepared to admit the person as a student.
22(2) [Access to benefit, expulsion] It is unlawful for an educational authority to discriminate against a student on the ground of the student’s disability or a disability of any of the student’s associates:
(a)by denying the student access, or limiting the student’s access, to any benefit provided by the education authority; or
(c) by subjecting the student to any other detriment.”
Discrimination itself is defined in ss.5 and 6 of the Act in the following forms:
“SECTION 5 DISABILITY DISCRIMINATION
5(1) [Less favourable treatment] For the purposes of this Act, a person (“discriminator”) discriminates against another person (“aggrieved person”) on the ground of a disability of the aggrieved person if, because of the aggrieved person’s disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.
5(2) [Where different accommodation required] For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability.
SECTION 6 INDIRECT DISABILITY DISCRIMINATION
6 For the purposes of this Act, a person (“discriminator”) discriminates against another person (“aggrieved person”) on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition:
(a)with which a substantially higher proportion of persons without the disability comply or are able to comply; and
(b)which is not reasonable having regard to the circumstances to the case; and
(c)with which the aggrieved person does not or is not able to comply.”
In order for the applicant to succeed in his claim he must be able to establish that the conduct of which he complains is either directly or indirectly discriminatory and constitutes the actions which are forbidden by s.22.
On 5 February 2003 the applicant also filed a document entitled “Remedies Sought” in which he claimed an apology from the respondents, a place in the LLB/BB course at the second respondent and $1,000,000.00 in damages.
On 6 March 2003 Sackville J transferred the matter to this court. In accordance with the normal procedures of this court the matter was given a “first court date” on 16 April 2003. The purpose of a first court date is set out in the Rules of the Federal Magistrates Court and in particular Part 10 Rule 10.01. On the first court date the applicant appeared and advised that he would be self represented. Both respondents appeared. The first respondent filed in court an application for an order pursuant to Rule 13.10 of the Federal Magistrates Courts that the proceedings be dismissed on the basis that the application and affidavit of the applicant disclosed no reasonable cause of action, was frivolous or vexatious and, in relation to the material which was contained in a previous complaint to the Human Rights and Equal Opportunity Commission in 1999 concerning events in 1995, was an abuse of process. The second respondent had not yet made up its mind whether or not to bring an application similar to that of the first respondent but advised that it was possible that it would do so. I therefore made orders in relation to such an application on the part of both respondents. I ordered that the applicant file and serve his evidence in reply annexed to an affidavit on or before 5 May 2003.
The second respondent did make an application which was filed in the court on 23 April 2003 and was supported by an affidavit of Kristine Ellen Thomas, a solicitor, which annexed various documents. The first respondent’s application was supported by an affidavit of Sudih Sivarajah, a solicitor with the Crown Solicitor’s Office, which also annexed documents. Mr Croker did not put on any affidavit in reply.
On 7 April 2003 the Crown Solicitor, on behalf of the first respondent, wrote to Mr Croker a letter which stated inter alia:
“In the event that you still intend to continue your action in the Federal Magistrates Court, I request that you provide me with full particulars of your complaint of alleged discrimination including the alleged loss suffered. I am unable to determine from your application and affidavit what is your cause of action against the first respondent, or how you have arrived at your stated loss. For instance, are you pleading direct discrimination or indirect discrimination. If so what did you say constitutes the various aspects of discrimination in the circumstances.
I note that you make some mention in your application and affidavit in support of alleged discrimination occurring in 1995 concerning the withdrawal of your disability support by the Sydney Institute of TAFE midway through your course. I understand that the Human Rights and Equal Opportunity Commission (“the Commission”) have already dealt with this matter in approximately 1999 in relation to a previous complaint made by you to the Commission. Indeed, the letter from the Commission dated 7 January 2003 advising you that your present complaint has been terminated on the basis that it is lacking in substance (which is attached to the Termination Notice) expressly states that you were advised that in relation to your present complaint, the Commission would only be inquiring into the period covering 2001 and period prior to the lodgment of the current complaint, being the period covering 2001 and 2002. I further note that the Commission upon terminating your present complaint excluded this aspect of your complaint in its terminated complaint. Accordingly, I am of the view that you would be estopped or otherwise prevented from pursuing this aspect of your complaint, if in fact it is your intention to also pursue this aspect of the complaint.
In light of the impending directions hearing (scheduled for 16 April 2003), I further request that you provide me with the particulars of your complaint by 3pm Friday 11 April 2003, assuming that you intend to pursue your action in the Federal Magistrates Court. This timeframe will give me sufficient time to prepare for the forthcoming directions hearing, which may include putting on a motion to have your application struck out or otherwise summarily dismissed with costs (depending of course on the nature of particulars of your compliant that you may provide).
I look forward to your response.
Please do not hesitate to contact me if you have any queries.”
The principles which should guide a court in considering an application such as this were set out extensively by Driver FM in Chung v University of Sydney [2001] FMCA 94 where the Federal Magistrate gave particular attention to the Judgment of Weinberg J in McKellar v Container Terminal Management Services Limited (1999) 165 ALR 409 at 415 to 417 and the Judgment of Sackville J in Re Morton; ex parte Mitchell Products Pty Limited [1996] 828 FCA 1, 21 ACSR 497 at 513-514 and the relevant decision of Ebber v The Human Rights and Equal Opportunity Commission (1995) 129 ALR 455 where it quoted Drummond J as follows:
“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 s.25X does not involve a high hurdle and the 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 s.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.”
Federal Magistrate Driver pointed out that a similar test was applied in later cases, in particular Nagasinghe v Worthington (1994) 36 ALD 193 and Assal v The Department of Health, Housing and Community Services (1992) EOC 92-409. Federal Magistrate Driver went on to say:
“As Ms Eastman submits, the principle to be derived from those cases is that a complaint which presents no more than 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.”
Both respondents urged on me that the views of Federal Magistrate Driver expressed above, which were upheld on appeal Chung v University of Sydney & Ors [2002] FCA 186 were both appropriate to this case and correct. That is a view which I am happy to adopt.
The evidence in relation to the claim against the first respondent
Mr Croker deposes that in 1989 he sustained a repetitive strain injury arising out of his work in the meat and allied trade industry. In 1992-1993 he enrolled in two trade certificate courses at TAFE and in 1993-1994 TAFE obtained through Centrelink access to his specialist medical records at St Vincent’s Hospital so as to grant “assistance” under the guidelines of the Sydney Institute of Technology (TAFE) (NSW Disability Support Unit). In 1995 the applicant also enrolled in a matriculation certificate course at TAFE and received certain assistance from the Disability Support Unit. That assistance was withdrawn and following the withdrawal the applicant launched an unsuccessful claim with HREOC in the same year. He meanwhile continued his studies.
At paragraph XVI of the applicant’s affidavit he indicates five courses which he failed between 1996 and 2002 and four courses which he passed. At paragraph XVII he states:
“As shown by the above some six years of education without help of the Sydney Institute of Technology (TAFE) New South Wales Disability Support Unit has produce(d) very little in the way of practical results and the underlying aim of the undergraduate studies was to final graduate through a University.”
At paragraph XXIII and XXIIV the applicant states:
“XXIII. The host of reasons asked me a applicant to do thing that are most impossible, unreasonable and far from reach of a person under disability.
XXIV. Furthermore it is alleged that the aggravation of the existing disabilities is at the fault of the respondent’s in there defective and maladministration in connection with the applications and the pervious attempts by myself to achieve a pathway for further education.” (sic)
This is the only affidavit of the applicant. In accordance with Order 81, Rule 5 of the Federal Court Rules there was lodged with the application alleging unlawful discrimination certain documents including the complaint to HREOC and the notice of termination and HREOC’s reasons therefore. One of the documents annexed was a letter from Centrelink dated 17 June 2002 which stated:
“Dear Mr Croker
This is to confirm that Clayton R Croker has been in receipt of the disability suppor (sic) pension continuously since 24/3/94.”
It seems to me that Mr Croker has failed to define his disability with any precision. He asserts that he continues to suffer from repetitive strain injury and some tinnitus but there is no medical evidence of that. There is no evidence of how his medical conditions constituted disability within the meaning of the Act nor how they impinge upon his ability to study. There is no evidence of any action taken by the first respondent which arose out of the existence of his disability nor is there evidence of any prejudicial or discriminatory conduct on the part of the first respondent against Mr Croker. The case which Mr Croker argued before the court was that TAFE failed to take appropriate steps to provide him within sufficient support that would allow him to have passed those courses which he failed. In making this assertion Mr Croker reveals the depth of his misunderstanding of the purpose and effect of the Disability Discrimination Act. The Act exists to discourage direct or indirect discrimination on the grounds of disability. It is not an act requiring positive discrimination in favour of persons with disabilities. As it is not clear what assistance Mr Croker believes he was entitled to it is difficult to test whether or not the alleged failure to provide it constitutes “less favourable” treatment. It is even more difficult to consider whether or not Mr Croker is being required to comply with a requirement or a condition to which a substantially higher proportion of persons without his disabilities comply or are able to comply and which is not reasonable having regard to all the circumstances of the case.
What the evidence does reveal is that in 1995 Mr Croker’s complaint was dismissed on the grounds that he had not provided TAFE with any information relating to his disability. HREOC came to the view that TAFE was entitled to obtain this information before it decided what assistance it might be able to give him. The evidence from the documentation is that Mr Croker has not provided any further information to TAFE since that time.
All in all, the claims as articulated by Mr Croker are clearly without merit. Mr Croker had an opportunity to put on further evidence which might have persuaded me that an arguable case could be made out. He did not avail himself of that opportunity. Instead he attempted to give some evidence from the bar table which I declined to accept. Mr Croker is no stranger to court proceedings (see Croker v Deputy Registrar of the High Court of Australia [2003] FCA 34 and Croker v Commissioner of Taxation [2002] FMCA 128). He has spent several years in and around the faculty of law at UTS. The disabilities he alleges he suffers from are not disabilities of the mind. There is no reason why he should not be judged upon his performance. I would make the order sought by the first respondent that the proceedings be dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules. I order that the applicant pay the respondent’s costs to be assessed in accordance with Part 21 Rule 21.10 of the Federal Magistrates Court Rules. I certify that the first respondent is justified in employing an advocate to appear on its behalf pursuant to Rule 21.15.
The case against the second respondent
In Mr Croker’s affidavit to which I have already referred he deals with his case against the second respondent at paragraphs XX, XXI and XXII:
“XX. It is further alleged that the Sydney Institute of Technology stated that the Conveyancing (8397) Advanced Diploma was a pathway to the LLB at University of Technology, Sydney. Enquires to the University of Technology, Sydney resulted in the statement that Sydney Institute of Technology had not entered any agreement with the University of Technology, Sydney and that the Conveyancing (8397) Advanced Diploma would only yield non-law exemptions as the Sydney Institute of Technology was not recognised as a law school.
XXI. Attempts to enrol in the LLB at University of Technology, Sydney were rejected and enquiries as to why were greeted by a host of reasons some being:-
(i)no distinction level reached in previous law studies:
(ii)no work experience;
(iii)would be able to pay for course;
(iv)no voluntary work done.
XXII. It is alleged that the above represents a violation of the Disability Discrimination Act 1992 (Cth) and other civil and common law rights doctrines and in the day to day business, economics and commerce of institutes.”
Put at its highest Mr Croker’s allegations are that he was unable to comply with the criteria set out in XXI, being the reasons why he was refused entry into the course of study, because of his disabilities. This would appear to be a species of indirect discrimination but there is absolutely no indication of any facts which would establish this nor, in the argument put by Mr Croker, of any real understanding of the complexity of s.6 of the Act. The claim which he makes of direct discrimination as articulated at the hearing was once again a claim that the university should have provided him with some positive assistance to enable him to enter the course. In other words it was not a claim that he was discriminated against, it was more a claim that he was not in receipt of some form of positive discrimination. Once again there was no indication of how the particular disabilities from which he suffers affected the mind of those in the university who considered his applications. There is some doubt as to whether there is sufficient evidence to establish that when the university first considered his application it was aware that he claimed to be a person suffering from disabilities. For the purposes of this judgment I am prepared to accept that they did. Certainly there is considerable correspondence from the university annexed to the affidavit of Ms Thomas indicating that very careful consideration was given to matters raised by Mr Croker. But that once again there was a lack of evidence from him which might have been of assistance. In relation to this claim Mr Croker addressed me at length. Much of what he was attempting to tell me would normally have constituted evidence. It should have been in an affidavit sworn by him, as he was ordered to provide. Regrettably the presentation was not coherent and indicated a lack of understanding of the requirements of the Disability Discrimination Act so far as proof of discrimination was concerned. Even if I accepted this evidence, it would not convince me that it raised the possibility of an arguable case. I am satisfied that the material before me 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 dismiss this application pursuant to Order 13 Rule 13.10 of the Federal Magistrates Court Rules. I order that the applicant pay the respondent’s costs to be assessed in accordance with Part 21 Rule 21.10 of the Federal Magistrates Court Rules. I certify that the second respondent is justified in employing an advocate to appear on its behalf pursuant to Rule 21.15.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
3
6
0