Drury v Andreco-Hurll Refractory Services Pty Ltd
[2004] FMCA 398
•1 March 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DRURY v ANDRECO-HURLL REFRACTORY SERVICES PTY LTD | [2004] FMCA 398 |
| HUMAN RIGHTS – Disability discrimination – summary dismissal of application – no reasonable cause of action disclosed – whether there are any further issues not previously the subject of a complaint to HREOC that might be the subject of a further complaint considered. COSTS – Whether a costs order should be made at the interlocutory stage of discrimination proceedings considered. |
Disability Discrimination Act 1992 (Cth), ss.15, 17
Federal Magistrates Court Rules 2001 (Cth)
Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.46PO
Workplace Relations Act 1996 (Cth)
Barnes v Northern Land Council & Ors [2002] FMCA 54
Charles v Fuji Xerox Australia Pty Limited [2000] FCA 1531
Chung v University of Sydney [2001] FMCA 94
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Firew v Busways Trust (No 2) [2003] FMCA 317
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Low v Australian Taxation Office [2000] FMCA 6
MacKellar & Anor v Container Terminal Management Services Limited & Ors (1999) 165 ALR 409
Vintila v Federal Attorney-General [2001] FMCA 110
Webster v Lampard (1993) 177 CLR 598
| Applicant: | RAYMOND DRURY |
| Respondent: | ANDRECO-HURLL REFRACTORY SERVICES PTY LTD |
| File No: | SZ2554 of 2003 |
| Delivered on: | 1 March 2004 |
| Delivered at: | Sydney |
| Hearing date: | 1 March 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondent: | Ms C Ronalds |
| Solicitors for the Respondent: | Cutler Hughes & Harris |
INTERLOCUTORY ORDERS
The application is dismissed on the basis that no reasonable cause of action is disclosed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the proceedings to this point, fixed in the sum of $2,847.50.
The Court certifies that it was reasonable to employ counsel for the purposes of these proceedings, pursuant to rule 21.15 of the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ2554 of 2003
| RAYMOND DRURY |
Applicant
And
| ANDRECO-HURLL REFRACTORY SERVICES PTY LTD |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a motion for the summary dismissal of an application brought under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”) claiming relief for discrimination in breach of the Disability Discrimination Act 1992 (Cth) (“the DDA”). The motion by the respondent seeks the dismissal of the application on the basis that no reasonable course of action is disclosed. The respondent proceeds upon the motion, written submissions filed on 25 February 2004, augmented by oral submissions today by Ms Ronalds, and the affidavit of David Evans filed on 22 January 2004.
I also received two documents from the applicant, Mr Drury, being an injury management plan progress report (exhibit A1) and an employee separation certificate (exhibit A2) as well as the notice of termination of his complaint to the Human Rights and Equal Opportunity Commission with the annexed documents relating to that complaint, which I received as Exhibit C (for Court) 1. Other documents relevant to the principal application are Mr Drury's affidavit in support of the application and the application documents themselves.
The substance of the respondent's motion for summary dismissal is that Mr Drury's application will necessarily fail. The basis on which a proceeding may properly be dismissed on this ground is set out in paragraphs 7 through to 14 of Ms Ronalds' written submissions, which I agree with and adopt for the purposes of this judgment.
In considering whether an application may be summarily dismissed the Court must be satisfied that there is no arguable case to be put forward by the applicant. As Barwick CJ observed in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129, the applicable test has been expressed in a variety of ways, such as:
· “…so obviously untenable that it cannot possibly succeed”;
· “…manifestly groundless”;
· “…so manifestly faulty that it does not admit of argument”;
· “…discloses a case which the Court is satisfied cannot succeed”;
· “…under no possibility can there be a good cause of action”;
· “…be manifest that to allow them [the pleadings] to stand would involve useless expense”; or
· ..so manifest on the view of the pleadings, merely reading through them that it is a case that does not admit of reasonable argument”.
In Webster v Lampard (1993) 177 CLR 598, the High Court considered that the real issue to be considered by the Court in an application for summary judgment (in that case an application for summary judgment in favour of one of the defendants) is not whether the plaintiff/applicant would probably succeed in his action, but whether the material before the judge is such that the action should not be permitted to go to trial in the ordinary way because it is apparent that it must fail: per Mason CJ, Deane and Dawson JJ at 602.
A decision to order summary dismissal is to be used sparingly however and ought not be invoked unless the absence of the applicant’s cause of action is clearly demonstrated: General Steel Industries Inc v Commissioner for Railways at 129-130, per Barwick CJ and MacKellar & Anor v Container Terminal Management Services Limited & Ors (1999) 165 ALR 409 at 415-417, per Weinberg J.
In Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91, Dixon J, as he then was, observed in relation to an application for summary dismissal:
A case must be very clear indeed to justify the summary intervention of a Court to prevent a plaintiff submitting his case for determination in the appointed manner by the Court with or without a jury. The fact that a transaction is intricate may not disentitle the Court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But if it appears that there is a real question to e determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the Court to dismiss the action as frivolous and vexatious and an abuse of process.
This dicta of Dixon J has been adopted and applied to the question of summary dismissal in the Federal Magistrates Court: see Vintila v Federal Attorney-General [2001] FMCA 110, per McInnis FM at [11] and [12] and Firew v Busways Trust (No 2) [2003] FMCA 317 (23 July 2003), per McInnis FM at [17]-[18].
Regardless of the manner in which the proper test is variously expressed, it is clear that the function of the Court is to determine whether the applicant has put forward an arguable case in respect of any real question of law to be determined that may affect the rights of the parties.
In determining this question, the Court should not limit itself to a consideration of the applicant’s case alone and should consider whether an arguable case based on all the available material could be made out, independently of the allegations made by the applicant: Chung v University of Sydney [2001] FMCA 94 (20 September 2001), per Driver FM at [14] and Barnes v Northern Land Council & Ors [2002] FMCA 54 (10 April 2002), per Brown FM at [35].
In doing so the Court is permitted to take into account the HREOC President’s report and the reasons for the decision to terminate the applicant’s complaint: Barnes at [38].
I dealt with the principles in several previous proceedings in the Court's human rights jurisdiction including Chung v The University of Sydney [2001] FMCA 94, and I adopt the same approach to this case. It is necessary for me to determine whether Mr Drury has presented an arguable case in support of his application. In my view, he has not. Mr Drury's complaints to the Human Rights Commission was that he had been sacked from his employment. His complaint form annexed to the dismissal documents, which are Exhibit C1, sets out a claim by Mr Drury that he was sacked because of his injury on his last job with the respondent. The other document which assists in setting out the nature of the complaint is the letter accompanying the President's termination certificate on 29 September 2003. Under the heading, “Your complaint”, the President states:
You state that you have worked for Andreco-Hurll for 27 years, as a casual employee and that you injured yourself at work in March 2002. You state that Andreco-Hurll were advised of your injury but you allege that you were not provided with any alternative or light duties or any rehabilitation to assist you to return to your previous duties. You also allege that Andreco‑Hurll terminated your employment as a result of your disability in March 2002.
The President's delegate then sets out Andreco-Hurll's response to the complaint and the decision on it. In substance, the delegate of the President found that Mr Drury was not dismissed from his employment, but rather that his last contract of employment simply expired. The delegate also found that while Mr Drury was injured during the course of that employment, the employer acted appropriately and did not become aware of the extent of Mr Drury's disability until after the contract of employment expired. The complaint was terminated on the basis that the complaint was found to be lacking in substance.
Mr Drury does not identify in his application now before this Court what sections of the DDA he relies upon. I surmise that he probably relies upon s.17(1)(b) and 17(1)(c). That would be consistent with the complaint he made to HREOC. However, Mr Drury, in the proceedings before this Court, as in the proceedings before HREOC, appears to be seeking to further litigate proceedings he commenced in the Australian Industrial Relations Commission. Mr Drury was unsuccessful in those proceedings on the basis that he was an excluded employee for the purposes of the Workplace Relations Act1996 (Cth) because he was employed for a limited duration. Mr Drury contests that decision but he did not appeal against it.
A complaint to HREOC and an application to this Court is not an appropriate vehicle to relitigate industrial relations proceedings. In my view, the available facts before me, including the decision of the AIRC annexed to the affidavit of Mr Evans, establish that Mr Drury was at the time he was injured a contract employee with the respondent and that he was not dismissed. The contract simply ran out. There is nothing in the material before me to indicate that the employer acted inappropriately up to the time the contract expired.
In his oral submissions before me this afternoon Mr Drury complained that he has not been offered any more jobs with the respondent. I do not rule out the possibility that Mr Drury might be able to present a plausible claim of a breach of s.15(1) (b), (c) or that matter (a) of the DDA or possibly s.17(1)(a) of the DDA. “Employment” is defined in the DDA to include contract employment.
However, that was not the complaint that Mr Drury made to HREOC. His complaint was one of dismissal from employment and a complaint of discrimination during the course of employment. He has focussed inappropriately on the decision of the AIRC when he would have been better advised to have focussed on the facts or circumstances of the alleged discrimination that were of real concern to him.
If Mr Drury wishes to argue that he has been denied further employment by the respondent, it is open to him to make a fresh complaint to HREOC. I cannot hear that complaint in these proceedings because that was not part of the complaint he made previously to HREOC. Under s.46PO(3) of the HREOC Act the proceedings in the Court must arise out of the same or substantially the same facts as were alleged in the complaint to HREOC: Charles v Fuji Xerox Australia Pty Limited [2000] FCA 1531 at [37] to [39].
I find that I have no jurisdiction to consider a claim by Mr Drury that he has been denied future employment on the basis of a disability. His claim that he has been dismissed from his employment must necessarily fail. His claim that he was discriminated against in the course of his employment is also almost certain to fail. In those circumstances it is in the interests of everybody, including Mr Drury, that the proceedings should be terminated now rather than left to a full hearing, which would be expensive for the unsuccessful party, probably Mr Drury.
I will therefore grant the motion to dismiss the application on the basis that no reasonable course of action is disclosed.
On the question of costs, the application having been dismissed, Ms Ronalds seeks an order for costs. In the matter of Low v Australian Taxation Office [2000] FMCA 6, I declined to make a costs order noting that at that time I was dealing with relatively new legislation and that I considered that applicants should have a reasonable opportunity to take advice and assess their position before being subjected to a costs order. Conversely, in Chung v University of Sydney I did make a costs order in accordance with the scale of costs applicable generally to proceedings in this Court. Some three years have passed since I made the decisions in Low and Chung. We are no longer dealing with new legislation.
As I have noted earlier, Mr Drury, it seems to me, has been attempting to relitigate matters he was litigating in the AIRC. He was notified in advance of today's hearing of the respondent's intention to have the application summarily dismissed and warned of the possible costs implications. He should therefore have understood that there may be a costs penalty if the matter was dismissed summarily. Mr Drury submitted to me that his Honour Lindgren J envisaged a hearing on the matter but that is not apparent from the procedural directions made by his Honour prior to transferring the matter to this Court.
Mr Drury also submitted to me that he has limited funds and would have difficulty meeting a costs order. However, impecuniosity is not a reason for the Court to refrain from making a costs order. It may be a reason why a costs order is not vigorously pursued by the successful party. That is a matter that can be discussed between the parties.
I will make a costs order in accordance with the Federal Magistrates Court scale. The scale provides for costs of $1,135 for an interim or summary hearing as a discrete event, plus the daily hearing fee which, for a half day hearing, is $685. Ms Ronalds would be entitled to 150 per cent of that amount, noting that counsel was reasonably required for today's proceeding.
In addition to dismissing the application, I will order that the applicant pay the respondent's costs and disbursements of and incidental to the proceedings to this point, which I will fix in the sum of $1,135 in accordance with the Court scale, plus the daily hearing fee of $685 plus 150% of that amount for counsel. I will provide a certificate in accordance with rule 21.15 of the Federal Magistrates Court Rules 2001 (Cth).
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 23 June 2004
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