Department of Land & Housing v Douglas
[2011] FMCA 75
•22 February 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DEPARTMENT OF LAND & HOUSING v DOUGLAS | [2011] FMCA 75 |
| HUMAN RIGHTS – Disability discrimination –allocation and modification of public housing. PRACTICE & PROCEDURE – Interim application for summary dismissal – jurisdiction – no reasonable prospects of success – interim application dismissed. |
| Australian Human Rights Commission Act 1986 (Cth), s.46PO Federal Magistrates Court Rules 2001 (Cth), r.13.10 Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 (No 70, 2009) |
| Ali-Hossaini & Anor v NSW Land & Housing Corporation [2010] FMCA 644 Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720 Cass v Kingston Capital Ltd [2010] FMCA 762 Gama v Qantas Airways Ltd [2006] FMCA 11 George (a bankrupt) v Fletcher (a trustee) [2010] FCAFC 53 Howe v Qantas Airlines Ltd [2004] FMCA 242 Secretary of the Department of Foreign Affairs & Trade v Styles (1989) EOC 92-265 State of New South Wales v Amery (2006) 80 ALJR 753 Vijayakumar v Qantas Airways Ltd (2009) 233 FLR 369 |
| Applicant: | DEPARTMENT OF LAND & HOUSING |
| Respondent: | WAYNE DOUGLAS |
| File Number: | SYG1224 of 2009 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 7 & 8 February 2011 |
| Delivered at: | Sydney |
| Delivered on: | 22 February 2011 |
REPRESENTATION
| Counsel for the Applicant in a Case: | Ms K Edwards |
| Solicitor for the Applicant in a Case: | Mr N Cureton of Legal Services Branch NSW Land & Housing Corporation |
| Solicitors for the Respondent in a Case: | Mr Turner appearing on a pro-bono basis |
ORDERS
The Application in a Case, filed in Court on 8 February 2011, is dismissed.
The matter to proceed on a date to be fixed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1224 of 2009
| DEPARTMENT OF LAND & HOUSING |
Applicant in a Case
And
| WAYNE DOUGLAS |
Respondent in a Case
REASONS FOR JUDGMENT
Introduction
I have before me an Application in a Case filed in Court on 7 February 2011, seeking the summary dismissal of the principle Application on the basis that:
a)the Court has no jurisdiction to hear and determine the allegations of indirect discrimination made by the Application under s.6 of the Disability Discrimination Act 1992 (Cth); and
b)the proceedings against the Respondent are dismissed summarily pursuant to r.13.10 of the Federal Magistrates Court Rules 2001 (Cth) on the basis that the Applicant has no reasonable prospects of success prosecuting the proceedings against the Respondent.
The principle Application and the subsequent Amended Application alleged unlawful discrimination under s.46PO of the Human Rights & Equal Opportunity Act 1986 (Cth) (“HREOC Act”). The Applicant asserts disability discrimination and relies on s.6 of the Disability Discrimination Act 1992 (Cth) (“the DD Act”).
Mr Douglas initially made contact with the NSW Land & Housing Corporation (“NSW Housing”) in or about 2006, to obtain assistance for rental arrears he was experiencing in relation to his privately rented accommodation. NSW Housing was subsidising Mr Douglas in respect of payments made by him under that private rental agreement. NSW Housing agreed to assist in paying the arrears Mr Douglas had accumulated in the private residence. When it became apparent that Mr Douglas was about to be evicted from the private accommodation, NSW Housing commenced searching for accommodation in the form of a head leasing arrangement for Mr Douglas. Once the eviction took place, Mr Douglas was housed in a motel paid for by NSW Housing while suitable accommodation for Mr Douglas was pursued.
Mr Douglas suffers from a number of medical conditions including a cardiac condition, liver condition and morbid obesity. Mr Douglas requires the use of a motorised wheel chair. His medical problems are affecting his function particularly his residential environment which required modifications to allow him access.
NSW Housing on or about 13 July 2006, located a four bedroom property at 9 Melliodora Way, Macquarie Fields which was identified as suitable for Mr Douglas. The property had a very large shower recess, including grab rails suitable for Mr Douglas’ use. There was a ramp at the rear of the house to accommodate the motorised wheel chair. Mr Douglas was offered the only property that could be located that fits his needs in the geographic area of Ingleburn, Glenfield and Macquarie Fields. This was the area requested by Mr Douglas.
Mr Douglas commenced his tenancy on 7 August 2006, but claims that he was not given any choice about whether to accept the property and he contends it was not fit for or suitable for a person with his disability. Mr Douglas claims that in November 2006, his carer had moved a lounge suite so the floors could be swept. While Mr Douglas was sweeping the floor with a broom, he stepped over to the corner of the lounge room and went through the floor due to termite damage.
Mr Douglas refused to pay rent for the Melliodora Way property from the commencement of his tenancy until January 2007. Following a series of hearings at the Consumer, Trade and Tenancy Tribunal (“CTTT”), NSW Housing was granted termination of the tenancy agreement with the date of effect being 1 March 2007. Mr Douglas subsequently appealed to the Supreme Court where the matter was held over several times. The CTTT decision was stayed during the Supreme Court proceedings. Mr Douglas lodged an Application for a transfer to alternative accommodation in June 2007. The Application was refused as his tenancy had been terminated by the CTTT in March 2007, and this decision was the subject of the Supreme Court proceedings.
Mr Douglas filed a complaint with the Australian Human Rights Commission (“the Commission”). The date that this complaint was filed is unknown to this Court. The complaint was summarised by the Commission in the following terms:
You advised that you have a severe disability as a result of morbid obesity. He claimed that in 2006 the NSW Department of Housing (“the Department”) provided you with a house that was not suitable for your disability. Specifically, you claim that the floor could not support your weight. You alleged that as a result you fell through the floor and injured yourself in November 2006. You also claim that the Department has declined your request to provide a lockable shed at the rear of the house so that you could store your wheelchair as it cannot fit in your house.
On 22 December 2008, the Commission issued a Notice of Termination pursuant to s.46PH(2) of the HREOC Act. A delegate of the President indicated that the compliant was terminated under s.46PH(1)(i) of the HREOC Act on the grounds that they were satisfied that there was no reasonable prospect of the matter being settled by conciliation. That notification indicated that the complainant may apply to the Federal Magistrates Court or the Federal Court of Australia to have the allegation decided by Court and that Application must be filed within 28 days of the Notice of Termination.
On 20 May 2009, Mr Douglas filed an Application in this Court alleging unlawful discrimination under s.46PO of the HREOC Act. The first court date hearing was listed for 19 June 2009. Mr Douglas appeared as a self represented litigant on that date. Based on the documentation placed before the Court on that occasion and the brief discussion with Mr Douglas in open Court, I made the following orders:
1. Pursuant to r.12.03(1) of the Federal Magistrates Court Rules 2001 (Cth) the Applicant is referred to the Registrar for referral to a lawyer on the pro-bono panel for legal assistance, including in relation to one or more of the following:
(i) the preparation of affidavits;
(ii) the preparation of the amended application and written submissions;
(iii) representation of the Applicant at the resumed hearing.
2. The Applicant is to file and serve an amended Application on 17 June 2009 or;
3. The matter is listed for directions on 31 July 2009 at 9.30am.
Mr Turner agreed to represent Mr Douglas on a pro bono basis.
The parties agreed to pursue mediation in an attempt to resolve the dispute between them. The Court was advised that mediation was scheduled on 1 March 2010, and during that session, significant steps were taken to settle the matter involving making Mr Douglas’ house suitable for his particular circumstances. As progress was being made at that stage, both parties requested that the proceedings be adjourned for at least two months at liberty to apply on three days’ notice to enable negotiations to proceed. At a directions hearing on 22 October 2010, the Court was advised that despite a number of mediation sessions, final resolution of the matter was not possible and the parties requested that the proceedings be re-listed for final hearing.
Evidence
Mr Turner, appearing for Mr Douglas, tendered the following:
a)affidavit of Wayne Douglas affirmed 20 May 2009 (“first affidavit of Mr Douglas”);
b)affidavit of Wayne Douglas affirmed 26 October 2009 (“second affidavit of Mr Douglas”);
c)affidavit of Raymond Charles Turner affirmed 3 February 2010 (“first affidavit of Mr Turner”);
d)affidavit of Raymond Charles Turner affirmed 7 February 2011 (“second affidavit of Mr Turner”);
e)exhibit A1 Australian Human Rights Commission – Notice of Termination dated 22 December 2008;
f)MFI 1 – Department of Housing – Residential Tenancy Agreement, Part 2; and
g)MFI 2 – Housing NSW, Human Services Fact Sheet – Tenant’s rights and responsibilities.
Ms Edwards, appearing for NSW Housing, tendered the following material:
a)affidavit of Bryan Squires affirmed 23 December 2010;
b)affidavit of Phillip Tomkins affirmed 24 December 2010; and
c)affidavit of Nathan Cureton affirmed 7 February 2011.
Legislative framework
NSW Housing seeks that Mr Douglas’ claim of discrimination be dismissed pursuant to s.17A of the Federal Magistrates Court Act 1999 (Cth) and r.13.10 of the Federal Magistrates Court Rules 2001 (Cth).
Section 17A of the Federal Magistrates Court Act 1999 (Cth) states:
(1)…
(2) The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
(4) This section does not limit any powers that the Federal Magistrates Court has apart from this section.
Rule 13.10 of the Federal Magistrates Court Rules 2001 (Cth) states:
Discontinuance
(1) A party may discontinue an Application or response by filing a notice of discontinuance in accordance with the approved form.
(2) A notice of discontinuance may be filed:
(a) at least 14 days before the day fixed for the final hearing of the Application; or
(b) with the leave of the Court or a Registrar, at a later time.
(3) However, a party may not file a notice of discontinuance without the leave of the Court or a Registrar if:
(a) in a proceeding under the Family Law Act:
(i) the proceeding relates to the property of a party; and
(ii) one of the parties dies before the proceeding is decided; or
(b) the proceeding is a creditor's petition.
(4) A party filing a notice of discontinuance must, as soon as practicable, serve a copy of the notice on each other party in the proceeding.
In George (a bankrupt) v Fletcher (a trustee) [2010] FCAFC 53, the joint majority of Logan and Ryan JJ noted that s.17A of the Federal Magistrates Court Act 1999 (Cth) was equivalent to s.31A of the Federal Court Act. Their Honours at [75] stated:
[75] His Honour correctly concluded (at para 13) that s 17A of the Federal Magistrates Act conferred a power to grant summary judgment equivalent to that conferred on this court by s 31A of the Federal Court of Australia Act 1976 (Cth), to grant summary judgment in proceedings before it. In so doing, his Honour referred to these remarks by Lindgren J in White Industries Australia Ltd v Cmr of Taxation (2007) 160 FCR 298, at [50]–[54]:
[50] Section 31A of the FCA Act, like O 20 of the FCR, is concerned with the bringing and defending of proceedings, not just with pleadings; with substance, not just with form. Section 31A(1) is comparable to O 20 r 1 in that they are both concerned with summary judgment for the party who is prosecuting the proceeding. Section 31A(2) is comparable to O 20 r 2 in that they are both concerned with dismissals of proceedings. The word “judgment” in s 31A(2) is defined in s 4 of the FCA Act to mean “a judgment, decree or order, whether final or interlocutory, or a sentence”. It is convenient in the context of the present case to think of the judgment to which s 31A(2) refers as an order of dismissal of a proceeding.
[51] Is there a difference between the concept of no reasonable cause of action being disclosed (O 20 r 2(1)(a)) and no reasonable prospect of successfully prosecuting a proceeding (s 31A(2))? The only difference that suggests itself to me is that the latter makes plain that there may be taken into account the unavailability of evidence necessary to bring success at trial, whereas it is arguable that the former does not permit the unavailability of such evidence to be taken into account.
[52] In the present case, the unavailability of evidence is not an issue. The Respondents’ motion for summary dismissal is founded on their notice of objection to competency and on facts that are not in dispute: the existence of the guidelines, Mr O’Neill’s making of his decision under them to allow access to documents 226–238, and the giving of the notices to produce in the appeal proceedings.
[53] The “no reasonable prospects of success” formula of s 31A is that which was adopted in r 24.2 of the United Kingdom’s Civil Procedure Rules (the CPR) following the recommendation of Lord Woolf, Master of the Rolls, in his Access to Justice: Final Report to the Lord Chancellor on the Civil Justice System in England and Wales, HMSO, London, 1996, Ch 12, ss 31–36. The same test has been adopted in rr 292(2) and 293(2) of Queensland’s Uniform Civil Procedure Rules 1999.
[54] Under s 31A I must be satisfied that the Applicants have no reasonable prospect of success, but as s 31A(3) makes clear, this does not mean that I must be satisfied that the proceeding is hopeless or bound to fail. I suggest that the legislature’s intention in enacting s 31A was to lower the bar for obtaining summary judgment (including summary dismissal) below the level that had been fixed by such authorities as Dey v Victorian Railway Cmrs (1949) 78 CLR 62 at 91–2; [1949] ALR 333 at 347–8, and General Steel Industries Inc v Cmr for Railways (NSW) (1964) 112 CLR 125 at 129–30; [1965] ALR 636 at 638–9: see Lawrenson Light Metal Die Casting Pty Ltd (in liq) v Cosmick Pty Ltd [2006] FCA 753 at [15].
These remarks have since frequently been cited with approval by various judges of this court. They offer valuable guidance in relation to the background to the enactment, purpose and meaning of s 31A and its equivalent, s 17A. The suggestion made by Lindgren J (at [54]), with which we agree, that the intention of the legislature in enacting s 31A was to “lower the bar for obtaining summary judgment” does not carry with it the additional proposition that the intention was to remove the bar completely. True it is that s 31A is not concerned just with pleadings but with substance, not form. The mere presence of a factual controversy, however trifling, implausible, tenuous or tangentially relevant is not a bar to the exercise of the power conferred by s 31A to grant summary judgment. That would be inconsistent with the way in which the phrase “no reasonable prospect of success” is to be read in light of s 31A(3) (and s 17A(3)).
In Ali-Hossaini & Anor v NSW Land & Housing Corporation [2010] FMCA 644, Driver FM considered the principles to be applied in relation to the summary dismissal. His Honour states:
[7] 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 v Digital Sinema Australia Pty Ltd [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.
[8] 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 Cmr for Railways (NSW) (1964) 112 CLR 125 and Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905. In Spencer v Commonwealth [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)
[9] 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)
Applicant’s submissions on dismissal – jurisdictional issue
Mr Douglas’ Application relies on s.6 of the DD Act. In order to make out his claims, Mr Douglas must satisfy the requirements of s.6 of the DD Act in force at the time the alleged discrimination. The DD Act was amended by the Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 (No 70, 2009) which came into effect on 5 August 2009. The Notice of Termination (Exhibit A1) is therefore important as the date of termination was 22 December 2008. The Notice of Termination shows that it relates to the Act as it was prior to the amendment. The pre-amendment, s.6 stated:
6 Indirect disability discrimination
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 of the case; and
(c) with which the aggrieved person does not or is not able to comply.
Ms Edwards contends that the Applicant’s written submissions handed up in this case make it clear that the Applicant’s claims are now one of indirect discrimination on the ground of disability. The submissions further argue that the Applicant identifies the conditions or the requirements imposed by the Respondent which include:
a)by operation of the lease that is published policy, the Respondent requires the Applicant to reside in the property at 9 Milliodara, Macquarie Fields (“requirement to reside”); and
b)by operation of the lease and its published policy, the Respondent requires the Applicant to clean and maintain the property to a reasonable standard, including the garden and ensuring that no damage is done by you or your household members or visitors (“requirement to maintain property”).
Under s.46PO(3) of the Australian Human Rights Commission Act 1986 (Cth), it states:
The unlawful discrimination alleged in the Application:
(a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or
(b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.
The Court was referred to the decision in Gama v Qantas Airways Ltd [2006] FMCA 11 per Raphael FM at [9]:
…What one can extract from these decisions is that a party can make an allegation that a particular act referred to in the complaint constituted different breach of an anti-discrimination act that originally alleged or possibly even considered by HREOC. It is also clear that what constitutes the “complaint” is not just the written document but all the facts and matters that are before the commission prior to the determination. But the allegation made in proceedings cannot be substantially wider than those initially complained of.
Ms Edwards argues that there is nothing in the original complaint about the NSW Housing’s lease or policy being discriminatory. Further, there is nothing about Mr Douglas being required to maintain the property although it is clear that Mr Douglas was dissatisfied with how NSW Housing maintained the property. There is also nothing in the complaint about Mr Douglas requiring him to comply with the policy. However, there is a complaint that NSW Housing was not complying with its own policies and the law, those policies are not specified and this is a very different complaint in substance to acquiring Mr Douglas to comply with a particular policy (or tenancy agreement).
Ms Edwards submits that NSW Housing relies on the decision in Vijayakumar v Qantas Airways Ltd (2009) 233 FLR 369 of Scarlett FM at [93]-[114].
Whether the facts and issues pleaded were the subject of the terminated complaint
[93] It appears to me that the case that the Applicant wishes to argue in his Amended Application is significantly different from his original claim.
[94] The jurisdiction of the court to hear the application is determined by subs 46PO(3) of the Human Rights and Equal Opportunity Commission Act, which says:
The unlawful discrimination alleged in the application:
(a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or
(b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.
[95] It is clear that s 46PO(3)(a) requires the Applicant to make the same allegations of fact that he made in the terminated complaint, although he may claim that they bear a different legal character, provided that the legal character now being claimed is not different in substance from that originally claimed (Charles v Fuji Xerox Australia Pty Ltd37 per Katz J at [38]).
[96] Again, s 46PO(3)(b) allows the Applicant to allege different facts from those alleged in the terminated complaint, provided that those facts are not different in substance. However, the Applicant may claim that the facts now being alleged have a different legal character, even if that legal character is different in substance, provided that the legal character arises out of those facts (Charles v Fuji Xerox Pty Ltd at [39]).
[97] As Raphael FM held in Gama v Qantas Airways Ltd38 at [9]:What one can extract from these decisions is that a party can make an allegation that a particular act referred to in the complaint constitutes a different breach of an Anti-discrimination Act than that originally alleged or possibly even considered by HREOC. It is also clear that what constitutes the “complaint” is not just the written document but all those facts and matters which are before the commission prior to the determination. But the allegations made in proceedings cannot be substantially wider than those initially complained of.
[98] Thus, the court must begin by considering the “parameters of the complaint” (Hollingdale v Northern Rivers Area Health Service39 per Driver FM at [10]).
[99] Clearly, in the present case, the court must consider the Applicant’s claim after it was amended and as it was when it was terminated by HREOC on 11th May 2007. In my view, the claim that the Applicant now wishes to bring in the Amended Application and Points of Claim is significantly different, to the extent that it is outside the limits of subs 46PO(3).
[100] The Applicant originally claimed that his disabilities were injuries to his left knee and arm, as well as a sleep disorder. Depression and post-traumatic stress disorder, which he now seeks to claim, were never mentioned in his complaint to HREOC.40 It is not until the Points of Claim that the Applicant claims discrimination on the basis of these disabilities.
[101] The additional disabilities that the Applicant now claims, and the discrimination directed towards him on that basis, are substantially different from those originally claimed in the terminated complaint. There does not appear to be any difference in the palliative and therapeutic devices and auxiliary that the Applicant claims to have required.
[102] I am therefore satisfied that the unlawful discrimination sought to be claimed in the Amended Application is not the same as, or the same in substance as, the unlawful discrimination the subject of the complaint that was terminated by HREOC. Accordingly, it does not come within the ambit of s 46PO(3)(a).
[103] Further, the Applicant now seeks to rely on a contract between himself and the Respondent subject to the Respondent’s Conditions of Carriage. This was never raised in the claim terminated by HREOC.
[104] The Applicant also seeks to claim in his Amended Application that the Respondent unlawfully discriminated against him in the provision of access to premises on the grounds of his disability and contravened the Disability Standards for Accessible Public Transport 2002. These issues were never raised in the claim terminated by HREOC.
[105] The Applicant’s claim to HREOC alleged that the Respondent had unlawfully discriminated against him in breach of ss 5, 6, 11 and 24 of the Disability Discrimination Act. He refers to those same four sections in his application filed on 8th June 2007.
[106] He now seeks to widen his case to claim unlawful discrimination contrary to ss 4, 7, 12, 23, 31 and 32 of the Act.
[107] The claim of discrimination in access to premises is made under s 23 and the claim of failure to comply with the Disability Standards for Accessible Public Transport Guidelines is made under s 32 of the Act.
[108] I accept the Respondent’s submission that ss 23 and 24 of the Act are mutually exclusive. Subsection 23(1) relevantly provides:
It is unlawful for a person to discriminate against another person on the ground of the other person’s disability or a disability of any of that person’s associates: …
(b) in the terms or conditions on which the first-mentioned person is prepared to allow the other person access to, or the use of, any such premises; …
[109] Subsection 24(1) relevantly provides;
It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person’s disability or a disability of that other person’s associates: …
(b) in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to that other person; or
(c) in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person …
[110] It follows that the Applicant cannot rely on essentially the same conduct in a claim under two mutually exclusive sections.
[111] The premises which the Applicant claims that were the subject of the Respondent’s refusal to allow him access were constituted by an aircraft on the ground in India. The refusal alleged by the Applicant happened entirely in India, at Mumbai Airport. The Applicant also faces the difficulty in establishing that the Disability Discrimination Act has an extra-territorial effect, which will prove to be an insuperable hurdle.
[112] In my view, leaving aside the question of extra-territoriality for the time being, the facts upon which the Applicant now seeks to bring his claim are not the same or substantially the same as those in the complaint terminated by the Human Rights and Equal Opportunity Commission.
[113] The proposed amendments to the application are outside the limits of s 46PO(3) of the HREOC Act. Under s 46PO(3):
The unlawful discrimination alleged in the application:
(a) must be the same as (or the same substance as) the unlawful discrimination that was the subject of the terminated complaint; or
(b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.
[114] Where the unlawful discrimination alleged does not meet the test in subs 46PO(3), the court has no jurisdiction to hear the application. As I am satisfied that the unlawful discrimination alleged in the Amended Application and the Points of Claim does not come within the boundaries of s 46PO(3), it follows that granting leave to amend the application would be futile.
Ms Edwards submits the original complaint does not reference that the lease or policy contains anything discriminatory. Furthermore, Ms Edwards contends that there is nothing about Mr Douglas being required to maintain the property, although it is very clear that Mr Douglas was dissatisfied with how NSW Housing maintained the property. There is also nothing in the complaint about Mr Douglas being required to comply with the policy although there certainly is a complaint that NSW Housing is not complying with its own policies.
Respondent’s submission on dismissal – jurisdictional issue
Mr Turner submits that the Respondent’s case is simple. His evidence is clear and this factual dispute between the parties can only really be ventilated in a trial. His evidence is that he was told “That’s where you live. You have no alternative”. Mr Turner contends that this is the requirement. Mr Turner takes issue with the analysis of the requirement by the tenancy agreement. It is submitted that the tenancy agreement is the basis for the relationship between the parties.
Turning to the question of jurisdiction, Mr Turner submits the matter before this Court can be distinguished from the decision Vijaykumar v Qantas (supra) on the facts. Mr Turner referred the Court to paras. [95], [99] and [100] which are reproduced above. In Vijaykumar v Qantas (supra) His Honour Scarlett FM determined whether an Applicant could rely on a substantially different set of facts or on an additional set of facts. Mr Turner submits that in the matter before this Court, Mr Douglas relies upon the same set of facts that were put before the Commission. Mr Turner refers the Court to the Australian Human Rights Commission’s letter dismissing the complaint (Exhibit A1, attachment A). That letter indicates that the Commission exercised an abundant level of caution when it considered the complaint under ss.6, 10, 11 and 25 of the DD Act. Mr Turner indicates that he relies on the fact that the Commission reviewed the complaint under s.6 and that the Amended Application brought under s.6.
Mr Turner then referred the Court to the original HREOC complaint form. On p.3 of that form the following appears:
Why are you complaining to the Commission?
I have been discriminated against because of my race.
I have been discriminated because I have a disability.
I have been treated unfairly for another reason.
Please state the reason.
The Housing Manager gave me a house full of termites and damages that has nearly killed me.
What happened?
In August 2006, Housing gave me a house that was to be medically unfit for my disability needs.
In November 2006, my carer had moved the lounge so we could sweep the floors. I grabbed the broom to help, and when I stepped on the corner of a floor, I went through the floor due to the termites in the house.
Mr Turner referred the Court to the penultimate line on the following page:
the housing said that it was my fault for falling through the floor as I should not be so big as they had said.
In the third para. on p.5:
I am still having trouble with my house, as I cannot fit my wheelchair inside. Termites. Stained carpets. No access to clothes line. Telling my carer to go away when he was trying to advocate for me at all times.
Then at the last para. of p.5:
Housing knows that DOCS are no also picking on the safety of the premises due to the condition of the house being a house not how clean it is and housing are doing nothing to resolve these issues.
Mr Turner argues that the complaint document on its face reveals everything claimed by his client is directly or indirectly contained in that Application. In the absence of any recording or transcript from the Commission hearing, it is unclear how s.6 was addressed. However, on the face of the decision of the Commission, it is clear that the Commission considered s.6 and consequently it must be inferred that it was addressed by the Commission during the hearing.
Consideration – jurisdictional issue
The jurisdictional issue argued before this Court hinges upon whether the pleadings contained in the Amended Application introduced significantly different set of facts from the original complaint filed with the HREOC.
This decision is made significantly more difficult because the original complaint and the initial Application to this Court were drafted by a self-represented litigant with extremely limited knowledge of the operation of the complaint mechanism and the subsequent appeal process to this Court. When Mr Turner accepted a brief to appear for the Applicant on a pro-bono basis, he was placed in a very difficult and untenable position. In the preparation of an Amended Application, (for which leave was granted) Mr Turner had to rectify the pleadings in the appropriate form. In the absence of any specificity in Mr Douglas’ original complaint, Mr Turner was placed in the insidious position in the exercise of the pleading by not adopting a specific ground that was not contained in the original complaint. No criticism is directed at Mr Turner in respect of the manner of which he has approached this difficult dilemma.
Mr Douglas expressed his original complaint to the Commission in the following terms.
I have been discriminated against because I have a disability.
I have been treated unfairly for another reason.
Please state the reason.
The housing manager gave me a house full of termites and damages that has nearly killed me.
This is supported by a two page explanation of what happened and a further five page handwritten note prepared by Mr Douglas’ carer, Garrard Skeates.
The Commission, in its letter to Mr Douglas dismissing the claim, summarised the complaint as follows:
(a) You advised that you have a severe disability as a result of morbid obesity. You claim that in 2006 the NSW Department of Housing (“the Department”) provided you with a house which was not suitable for your disability.
(b) Specifically you claimed that
(i) the floor could not support your weight.
(ii) You alleged that as a result you fell through the floor and injured yourself in November 2006.
(iii) You also claim that the Department has declined your request to provide a lockable shed at the rear of the house so that you can store your wheel chair as it cannot fit in your house.
The complaint was considered under ss.6, 10, 11, 25 of the DDA.
The Amended Application, filed in these proceedings on 20 August 2009, sets out the ground of the Application as:
The Respondent unlawfully indirectly discriminated against the Applicant.
Particulars
a) The Disability Discrimination Act 1992 s.6 provides:
For the purpose 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 of the case; and
(c) with which the aggrieved person does not or is not able to comply.
b) the Respondent required all public housing tenants in NSW to maintain the house and grounds in a proper manner.
c) because of his disability the Applicant was not able to maintain the property
d) a substantially higher proportion of people without the disability of the Applicant would be able to comply with this requirement.
2. The Applicant’s initial disability was obesity which was known to the Respondent at the time or after the allocation of the housing.
3. When he was placed in appropriate housing by the Respondent he suffered further damages [to his leg].
4. [The damage] to his leg is a further disability which adds to the indirect discrimination suffered by the Applicant.
Ms Edwards advances the argument that the Amended Application claims:
a)by the operation of the lease and its published policy, the Respondent requires the Applicant (in the substantive application) to reside in the property being 9 Mulliodara Way, Macquarie Fields; and
b)by operation of the lease and it published policy, the Respondent requires the Applicant (in the substantive application) to clean and maintain the property to a reasonable standard.
The section of the pre-printed complaint form, (Exhibit A1, Attachment B) issued in this case by the HREOC (as it was known at the relevant time), requesting the identification of the nature of the complaint refers to discrimination only and omits indirect discrimination. A self-represented litigant, with limited or no knowledge of the operation of discrimination law, would not be aware of the concept of indirect discrimination and how it should be pleaded in the complaint form. In the absence of any reference of this aspect in the commission’s dismissal letter, it is not unreasonable for a self-represented litigant to not make reference to indirect discrimination in his original Application to this Court.
The inadequacy of the original pleadings filed by Mr Douglas was immediately apparent at the First Court Date Directions hearing on 19 June 2009, and it was at this point that I indicated to Mr Douglas that because this particular legislation was technically different to the lay person, I did not believe it was appropriate for him to further prosecute these proceedings without the advice and assistance of a qualified legal practitioner. Consequently I made the referral to the Court Registry to seek appropriate pro bono assistance for Mr Douglas and issued the orders that are reproduced above at [10]. Mr Turner accepted the brief and appeared for Mr Douglas at the directions hearing on 31 July 2009. At that hearing, I granted leave for the Applicant to file and serve an Amended Application for 13 August 2009. An Amended Application was filed on 20 August in the form set out at [29] and it is the first time that Mr Douglas’ claim was expressed in appropriate form of pleadings.
On analysis of all of the documents set out above, it is possible to distil the following elements:
a)Mr Douglas’ disability of morbid obsesity.
Mr Douglas raises this in his HREOC complaint that NSW Housing was to give him “fit for my disability needs”. The dismissal letter identifies this as:
You have a severe disability as a result of morbid obesity…
The Department provided you with a house which was not suitable for your disability. In the Amended Statement of Claim states:
The Applicant’s initial disability was obesity which was known to the Respondent at the time or after the allocation of the housing.
This claim is consistent in the original claim and the amended Application.
b)In the initial HREOC complaint, Mr Douglas stated that the premises were not fit for his disability needs. In the dismissal letter the Commission states:
Provided you with a house which was not suitable for your disability.
In the amended Application it states:
He was placed in inappropriate housing.
This claim has been maintained in both the initial complaint in the amended Application.
I am not satisfied that the characterisation of the Amended Application before the Court can be legitimately distilled into the two themes advanced by Ms Edwards. I am satisfied that the authorities that apply to this issue focus specifically on changing the factual issues on which the initial complaint and the subsequent pleadings before this Court, have substantially changed or expanded between those two stages.
I acknowledge that this task has been made more difficult because of the imprecise language and characterisation used by Mr Douglas in the original complaint. However, I am satisfied that the factual matrix has not changed and that the Application to dismiss these proceedings on the issue of jurisdiction cannot be sustained.
Applicant’s submissions – reasonable prospect of success
Claim one – requirement to reside at 9 Melliodara Place, Macquarie Fields
Ms Edwards, in her written submissions, submits that in order to prove a breach of the pre-amendment s.6 of the DD Act, Mr Douglas must prove that:
a)a substantially higher proportion of persons with the disability comply or are able to comply with the requirements; and
b)the requirement is not reasonable having regard to the circumstances of the case; and
c)with which the aggrieved person does not or is not able to comply.
The burden of proof in making out the claim rests wholly on Mr Douglas.
Ms Edwards submits that on Mr Douglas’ own evidence, he is unable to make out s.6(c) because on his own evidence he was unable to comply and did in fact comply with the requirement to live in the relevant property and on this point alone his claim must fail. It not only satisfies the hurdle under s.17A of the Federal Magistrates Court Act but the more stringent hurdle under previous legislation of being hopeless or bound to fail. Mr Douglas would likewise be unable to show it was a requirement imposed by NSW Housing within the meaning of the DD Act. Ms Edwards submits that a requirement or condition it must be “imposed” by NSW Housing and not by agreement or by other means: State of New South Wales v Amery (2006) 80 ALJR 753 per Gummow, Hayne and Crennan JJ at [80]-[81] and Callinan J at [205]-[207].
Ms Edwards has provided the Court with a detailed analysis of the elaborate statutory regime that governs how public housing is managed and allocated to clients such as Mr Douglas. I rely on those written submissions and have reproduced them without further direct attribution to assist in the understanding the nature of this specific regime of allocation and administration of this aspect of public housing.
Relevant legislation includes the Housing Act 2001 (NSW) and the Residential Tenancies Act 1987 (NSW). Public housing is long term affordable housing for people living in NSW on low incomes who are unable to rent privately. The properties are managed by NSW Housing through the NSW Land & Housing Corporation (“the Corporation”), a statutory body representing the Crown established under the s.6 of the Housing Act 2001. The Corporation provides subsidised housing for approximately 117,000 people who meet the relevant criteria, about half of whom are disabled. The Commonwealth funding is provided as part of the National Rental Affordability Scheme (“NRAS”).
The Corporation enters into written residential tenancy agreements with each tenant at the beginning of their tenancy. The Corporation offers residential tenancy agreements of different durations depending on the circumstances of the client, the general policy applying at the time they are offered housing and any special condition that may be attached to a particular offer of housing. Rental rebates are also available to tenants pursuant to the powers contained in ss.54-58 of the Housing Act. When the Corporation signs residential tenancy agreement with a client, it does this in accordance with the requirements of the Residential Tenancy Act 1987. One of those requirements is that the tenants must reside in the property allocated to them. Therefore these are not requirements imposed by NSW Housing but by legislation and are fundamental to the nature of public housing.
Ms Edwards contends that the legislative structure, which is fundamental to the administration of public housing in NSW, clearly indicates that the requirement for Mr Douglas to occupy the house allocated to him cannot be seen as a condition imposed by NSW Housing. Ms Edwards relies on the decision in Howe v Qantas Airlines Ltd [2004] FMCA 242 per Driver FM at [231]-[232] where it was held that the requirement or condition must be something separate from the nature of the job itself. Consequently, Mr Douglas will not be able to make out a claim under s.6(a) and (b) of the DD Act.
Ms Edwards submits that on the evidence on which Mr Douglas relies, there is no evidence that lease was to provide more than that of a standard lease with the Department. Therefore the lease only represented a reasonable agreement to provide accommodation in exchange for payments. Ms Edwards argues that the requirement has not been clearly specified. Ms Edwards submits that the requirement is one of the two following possibilities:
i)to reside in the particular property; or
ii)for all public housing tenants to reside in the properties allocated to them.
If the requirement falls within the first option, requiring Mr Douglas to live in the particular property is not applies to all people or all those leasing housing properties. If it is generalised to the extent that the requirement is one, which requires all public housing tenants to live in their properties, there is no evidence that people without a disability are more able to comply than those with a disability. Ms Edwards submits that this is similar to the situation in Ali-Hossani & Anor v NSW Land & Housing Corporation [2010] FMCA 644 in which His Honour Driver FM dismissed the claim of disability discrimination because they did not address each key limb of the legislation but rather simply listed their own concerns. At [13] His Honour stated:
Mr and Mrs Ali-Hossani’s difficulty in this case is that the evidence does not point to any instance where Mrs Ali-Hossani or indeed any member of the family has been treated less favourably by the corporation than a person without multiple schlerosis. Indeed, the Applicants have not identified any comparator. They have simply pointed to their own difficulties.
Ms Edwards argues that taking Mr Douglas’ evidence at its highest, there is no evidence for the requirement that he live in the relevant property unreasonably within the meaning of s.6(b) of the DD Act. Supply of public housing is a limited resource and if those seeking do not live in it, they are effectively disadvantaging those in the need of accommodation. Ms Edwards referred to Ali-Hossani where His Honour Driver FM noted:
11. There is also no real doubt that the corporation has been unable to meet the needs of the family as perceived by Mrs Ali-Hossani 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 onus 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 NSW.
Ms Edwards submits that there is no evidence that the requirement had a detrimental effect on Mr Douglas within the meaning of s.25(2)(c). The house was in the same suburb as his daughter’s school. The property was allocated on the basis of it being the one of three suburbs nominated by Mr Douglas. It had a modified ramp at the back of the house and a bathroom with a hobless shower and grab rails. This evidence is not in dispute. Importantly, in relation to the requirements to reside at the relevant premises, the Applicant (in the substantive case) has taken every possible step to stay at the premises, this in itself and applying that test under s.17A as to whether he would have reasonable prospects of success or proving reasonableness.
Claim two – requirement to clean and maintain the property and cause no damage
Ms Edwards reaffirms that the burden of proof is on Mr Douglas to make out his claim on the pre-amendment version of the DD Act. It is submitted that there is nothing in Mr Douglas’ evidence that this requirement was in fact ever imposed on him. There is no evidence that Mr Douglas ever read the relevant policy (of which only the 2010 version is tendered) or had it brought to his attention because he was not complying with it. Indeed there is no mention of it in his affidavit. Regardless, the tenancy agreement does not state the requirement as set out but puts the obligation in the terms that the Applicant was required to maintain the property to a reasonable standard in the context of the condition of the property at the time he took residence.
It is submitted that on Mr Douglas’ own evidence, the condition of the house was poor and the garden a mess. The onus on Mr Douglas is very low. In addition, it is his own evidence that he was simply unable to carry out garden work. Regardless, even if he did receive the policy, which is the only document giving rise to the requirement, there is absolutely no evidence that NSW Housing ever enforced this policy against Mr Douglas. When the burden of proof is reversed and one considers the post amendment DDA, it is NSW Housing’s evidence that it did not enforce the obligation and moreover, that it did work on the garden until 2010. Such actions are inconsistent with enforcing that obligation on Mr Douglas. In that context, there can be unreasonableness or detriment to Mr Douglas.
Ms Edwards submits that for the above reasons the claim ought to be dismissed for the reason of no reasonable prospect of success.
Respondent’s submissions – reasonable prospects of success
Mr Turner, in his oral submissions, indicated that Mr Douglas says, and will say, that he was required to reside in the premises that were unsuitable for his particular disability. His evidence is clear and this is a factual dispute between the parties which can only be ventilated in trial. His evidence is that he will say:
That’s where you live. You have no alternative.
Mr Turner argues that there is a requirement. Mr Turner indicates that he takes issue with Ms Edwards’ analysis of the requirement of the tenancy agreement. The tenancy agreement is the basis of the relationship between the parties.
Mr Turner contends that if there was a compulsion to live in the premises which were clearly unsuitable, the evidence of Mr Tomkins and Mr Squires confirms that considerable steps were taken long after the tenancy commenced to make it suitable for Mr Douglas’ disability. If that compulsion flows from either the tenancy agreement, the policy of the department or the actions of the department, then it is a requirement on Mr Douglas to reside and to maintain the premises in a neat and tidy fashion. Mr Turner contends that the second element that his client has to show is that a person without Mr Douglas’ disability could have done so. Mr Turner submits that judicial notice can be taken of that as it must be clearly the case that an able bodied person without Mr Douglas’ disability can carry out reasonable cleaning and maintenance on the property.
Mr Turner advances the argument that it was unreasonable, if Mr Douglas’ evidence is accepted, that he was forced onto those premises. There was no alternative. It is no defence to say that he lived in those premises because he had no alternative. It was that house or the park. He had no other alternative and that was a requirement placed on him which was not a reasonable restriction of the state of the property. It seems to have been accepted by NSW Housing that the state of the property was not acceptable because subsequently modifications were made to the property.
Mr Turner advances the argument that he is not required to establish that his client will definitely win but rather that they will not definitely lose. Based on this premise, Mr Turner maintains that his client has a case to be tried in that Mr Douglas is entitled to advance his case.
Consideration – reasonable prospects of success
The Full Federal Court decision in George v Fletcher (trustee) (supra) (see [18] above) establishes that the operation of s.17A of the Federal Magistrates Court Act is equivalent to s.31A of the Federal Court Act. There are also very useful decisions of this Court in respect of the principles to be applied in relation to summary dismissal. This is addressed by His Honour Driver FM in Ali Hossein & Anor v Land & Housing Corporation (supra) (see [19] above). A decision of His Honour Lucev FM in Cass v Kingston Capital Ltd [2010] FMCA 762 where His Honour summarises the principles in respect of the dismissal at [9] – [10]:
[9] The Federal Court possesses a like power to that under s 17A(2) of the FM Act under s 31A(2) of the Federal Court of Australia Act 1976 (Cth).7. In relation to the power under s 31A(2) of the FC Act it has been observed that:
a) a court must be satisfied that the applicant has no reasonable prospect of success;
b) the court need not be satisfied that the proceeding is hopeless or bound to fail;
c) the legislature’s intention in introducing these provisions was to lower the bar for obtaining summary judgment (including summary dismissal) below the level that had been fixed by authorities like Dey v Victorian Railways Commissioners8. and General Steel Industries Inc v Commissioner for Railways (NSW)9. which required that the allegations be quite clearly so untenable that they could not possibly succeed;
d) there was not an intention on the part of the legislature to remove the bar completely;
e) the mere presence of a trifling, implausible, tenuous or tangentially relevant factual controversy is not a bar to the exercise of the summary dismissal power; and
f) what is required is a prediction of the outcome of a trial on the merits but not an actual adjudication of those merits.10.
[10] Section 31A of the FC Act and s 17A of the FM Act are equivalents,11. and likewise r 13.10(a) of the FMC Rules which is in essentially the same terms as the abovementioned sections, and to which the same principles ought to apply.12.
I am further assisted by the decision in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720 where His Honour Rares J considered the effect of s.31A at [42]-[47]:
[42] I am of opinion that properly construed, s 31A(2)(b) requires a person moving a motion for summary disposal (‘the moving party’) to satisfy the Court that there is no reasonable prospect of the party claiming relief (‘the plaintiff’) successfully prosecuting the proceeding or the part of the proceeding in question. Experience shows that there are cases which appear to be almost bound to fail yet they succeed. As Dixon CJ once said (Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 20):
Experience of forensic contests should confirm the truth of the common saying that one story is good until another is told …
[43] Brennan CJ and McHugh applied that observation in Jackamarra v Krakouer (1998) 195 CLR 516 at 522 [9] to a situation which an appellate court was exercising a discretion to permit a further step to be taken in an appeal that had already been instituted. Obviously, where there is a contested application under s 31A, both parties will be present to explain their case, but not in the context of a trial. The procedure envisaged by s 31A is summary. The concept of a party having ‘no reasonable prospect of successfully prosecuting a proceeding’ has some similarity to the test at common law for determining whether a jury properly instructed could reach a verdict for the plaintiff. That test was authoritatively stated by the Judicial Committee in Hocking v Bell (1947) 75 CLR 125 at 130–131, approving the following statement from the dissenting judgment of Latham CJ (Hocking v Bell (1945) 71 CLR 430 at 441–442):
If there is evidence upon which a jury could reasonably find for the plaintiff, unless that evidence is so negligible in character as to amount only to a scintilla, the judge should not direct the jury to find a verdict for the defendant, nor should the Full Court direct the entry of such a verdict. The principle upon which the section is based is that it is for the jury to decide all questions of fact, and therefore to determine which witnesses should be believed in case of a conflict of testimony. But there must be a real issue of fact to be decided, and if the evidence is all one way, so that only one conclusion can be said to be reasonable, there is no function left for the jury to perform, so that the court may properly take the matter into its own hands as being a matter of law, and direct a verdict to be entered in accordance with the only evidence which is really presented in the case.’ (emphasis added) (see also Swain v Waverley Municipal Council (2005) 220 CLR 517 at 522 [9] per Gleeson CJ, 561–562 [128]–[131] per Gummow J and 580 [203], 582–583 [208]–[209] per Kirby J; see also at 531–532 [33]–[34] per McHugh J)
[44] In a case to which s 31A applies, where there is a real issue of fact to be decided in the sense identified in the above principle, and, possibly, where there is a real issue of law of a similar kind, it is obviously appropriate that the matter goes to trial. And, one must be mindful that in Hocking v Bell (1945) 71 CLR at 487, Dixon J said that in effect, every judge who had heard the matter (through four trials, two Full Court appeals and, to that point, the appeal to the High Court) would have formed the view that the plaintiff should have failed had they been able to decide the facts, yet the Privy Council restored the second jury verdict in her favour and so concluded the litigation. This raises a very real question, as to what reasonable prospects are for present purposes.
[45] I am of opinion that in assessing what reasonable prospects of success are for the purposes of s 31A, the Court must be very cautious not to do a party an injustice by summarily dismissing the proceedings where, in accordance with the principles in Hocking v Bell (1947) 75 CLR 125, contested evidence might reasonably be believed one way or the other so as to enable one side or the other to succeed. As soon as the evidence may have such an ambivalent character prior to a final determination, I am of opinion that then, as a matter of law, at that point there are reasonable prospects of success within the meaning of s 31 A. Unless only one conclusion can be said to be reasonable, the moving party will not have discharged its onus to enliven the discretion to authorize a summary termination of the proceedings which s 31A envisages. In moving the second reading of the bill introducing s 31A (the Migration Litigation Reform Bill 2005) the Attorney-General said that it strengthened ‘… the power of the courts to deal with unmeritorious matters by broadening the grounds on which federal courts can summarily dispose of unsustainable cases’.
[46] In Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 at 154–155, Dawson, Gaudron and McHugh JJ said that a party should not be shut out from litigating an issue which was fairly arguable and that the power to grant leave to amend should be exercised with that in mind. They observed (189 CLR at 154) that ‘… the ultimate aim of a court is the attainment of justice’. Obviously, s 31A regulates the attainment of justice by creating an entitlement in a party to be protected from claims or defences which fail to meet the threshold prescribed in the section. In granting leave to appeal on a decision involving the application of s 31A, Wilcox J observed in Vans, Inc v Offprice .Com.Au Pty Ltd [2006] FCA 137 at [12] that it was arguable that the effect of s 31A was that there could be summary judgment for an Applicant ‘… notwithstanding the possibility that the Applicant’s case will break down at trial; in other words, it is now not enough for a party resisting a summary judgment application to seek merely to put the other side to proof’ (his Honour’s emphasis).
[47] GE Capital also argued that s 31A required the Court to dismiss a claim or defence based on a predictive assessment of its prospects, even though it may be possible that had the matter gone to trial it would have succeeded. I am of opinion that this is not how the section operates. It is engaged only to determine summarily a claim or defence which has no reasonable prospect of success. The purpose of the enactment is to enable the Court to deal with matters which should not be litigated because there is no reasonable prospect of any outcome but one. If there is a reasonable danger that a claim or defence could be dismissed under s 31A, which could succeed at a trial, the provision would create miscarriages of justice. It is a key feature of the judicial power under Ch III of the Constitution that the Court be in a position to, and in fact does, quell a controversy. The exercise of the judicial power to prevent the substantive agitation of a controversy in which each side has a reasonable prospect of success would defeat, not advance, the ends of justice.
(emphasis added)
I note the detailed analysis and submissions forwarded by Ms Edwards and acknowledge the significant deficiencies in the presentation of Mr Douglas’ claim. I believe this is substantially due to Mr Douglas’ lack of knowledge and understanding in presenting a case of this nature and I have referred to how this Court should handle self represented litigants. I also note the difficult position placed on Mr Turner accepting the pro-bono brief at such a late stage. However, I believe that the crux of Mr Douglas’ case is set out in ground three of the amended application which states:
3.When he was placed in appropriate housing by the Respondent he suffered further damages including the loss of a leg.
I am guided by the words of His Honour Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (supra) at [42] and in particular the passage that is highlighted in that section is reproduced above.
Mr Douglas’ claim is advanced on the ground of indirect discrimination which is focused on the impact of rules, practices or policies that apply particularly and have a disproportionate impact on those with particular attributes. In Secretary of the Department of Foreign Affairs & Trade v Styles (1989) EOC 92-265, indirect discrimination was referred to as “practices which are fair in form and intention but discriminatory in impact or outcome”. The DD Act acknowledges that there is a duty to make reasonable adjustments to avoid indirect discrimination. The burden of proving reasonableness is on the person imposing the requirement for condition.
Consequently, I believe that Mr Douglas should be provided with the opportunity to advance his case on this issue. In respect of the two claims formulated by Ms Edwards under this heading of ‘reasonable prospects of success’, I must agree. As I indicated above, the formulation of the specific claims advanced by Mr Douglas are difficult to understand. I believe they result from the initial proceedings together with the complaint filed with the Commission, drafted by a self-represented litigant with limited knowledge of the legal concepts that are incorporated in the operation of discrimination law and more particularly the structure and requirements of the DD Act.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 22 February 2011