Ellis v Kanyana Wildlife Rehabilitation Centre Inc
[2017] FCCA 89
•24 January 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ELLIS v KANYANA WILDLIFE REHABILITATION CENTRE INC | [2017] FCCA 89 |
| Catchwords: PRACTICE AND PROCEDURE – Application in a case for application to be summarily dismissed – whether discrimination alleged is the same as the discrimination the subject of terminated complaint – whether disability identified – whether discrimination alleged because of disability – whether no reasonable prospect of success. |
| Legislation: Australian Human Rights Commission Act 1986 (Cth), ss.46PH, 46PO Disability Discrimination Act 1992 (Cth), pt.2 div.2, ss.5, 6, 11, 15, 21A, 21B, 23, 24, 29, 29A Fair Work Act 2009 (Cth) Human Rights and Equal Opportunity Commission Act 1986 (Cth) |
| Cases cited: Australian Securities & Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256; (2013) 302 ALR 671; (2013) 94 ACSR 623 Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531; (2000) 105 FCR 573; (2000) 105 IR 153 Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118; (2010) 63 AILR 101-302 George v Fletcher (Trustee) [2010] FCAFC 53 Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd & Ors [2008] FCAFC 60; (2008) 167 FCR 372; (2008) 246 ALR 465; (2008) 103 ALD 505; [2008] ATPR 42-231 Lawrenson Light Metal Die Casting Pty Ltd (in liq) v Cosmick Pty Ltd [2006] FCA 753 Leica Geosystems Pty Ltd v Koudstaal [2012] FCA 1337 Manday Investments Pty Ltd v Commonwealth Bank of Australia (No 3) [2012] FCA 751 Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92; (2003) 78 ALJR 1; (2003) 202 ALR 133; (2003) 77 ALD 570; [2004] EOC 93-305 Qantas Airways Ltd v Gama [2008] FCAFC 69; (2008) 167 FCR 537; (2008) 247 ALR 273; (2008) 101 ALD 459; [2008] EOC 93-493 Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 White Industries Aust Ltd & Anor v Federal Commissioner of Taxation & Anor [2007] FCA 511; (2007) 160 FCR 298 |
| Applicant: | TROY ELLIS |
| Respondent: | KANYANA WILDLIFE REHABILITATION CENTRE INC |
| File Number: | PEG 359 of 2014 |
| Judgment of: | Judge Lucev |
| Hearing date: | 25 June 2015 |
| Date of Last Submission: | 25 June 2015 |
| Delivered at: | Perth |
| Delivered on: | 24 January 2017 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the Respondent: | Mr A J Power |
| Solicitors for the Respondent: | Archon Legal |
ORDERS
That the applicant’s Statement of Claim filed 21 February 2015 be struck out.
That the applicant have leave to file and serve a Further Statement of Claim by 4.00pm on 28 February 2017.
That the matter be adjourned to 3.00pm on 3 March 2017 for further directions.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 359 of 2014
| TROY ELLIS |
Applicant
And
| KANYANA WILDLIFE REHABILITATION CENTRE INC |
Respondent
REASONS FOR JUDGMENT
Introduction – application for summary dismissal
The respondent, Kanyana Wildlife Rehabilitation Centre Inc (“Kanyana Wildlife”), seeks to summarily dismiss an application by Troy Ellis (“Mr Ellis”), pursuant to r.13.10 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”).
The litigation to date
The history of the litigation to date is set out below.
The Originating Application
The Originating Application is made on the “Application – Human Rights” form (“Application Form”) prescribed by the FCC Rules: FCC Rules, r.41.02A(1) (“Originating Application”). Pursuant to r.41.02A(2) of the FCC Rules, r.4.05 of the FCC Rules does not apply to the Originating Application as the Application Form is made in the approved form. The effect of r.41.02A of the FCC Rules is that no affidavit in support of the Originating Application had to be filed by Mr Ellis.
The Application Form commences at Part A by asking the applicant to set out the final orders sought, which Mr Ellis has set out as follows:
1.$1 MILLION COMPENSATION FROM PUBLIC LIABILITY INSURER
2.DISMISSAL OF SARAH DUDLEY AT KANYANA WITH NO REFERENCE
3.AN APOLOGY FROM KANYANA AND SARAH DUDLEY, WITH HER STATING HER DISGUSTING ARROGANCE AND STUPIDITY IN THE ALL ITS FORMS
(Transcribed without amendment).
The Court observes that the compensation sought is a significant sum and how that amount has been calculated has not been particularised, despite the Application Form directing an applicant to “provide details of … how the amount has been calculated: for example, loss of income”.
Part B of the Application Form is headed “Grounds of Application” and commences by asking:
3. What discrimination are you complaining of?
which is then followed by a note in the following terms:
The unlawful discrimination must:
(a)be the same or substantially the same as the discrimination that was the subject of the complaint terminated by the Australian Human Rights Commission, or
(b)arise out of the same or substantially the same acts, omissions or practices that were the subject of complaint.
The terms of the above note reflect s.46PO(3) of the Australian Human Rights Commission Act 1986 (Cth) (“AHRC Act”), which is set out in full below: see [27] below. In response to this question and note, Mr Ellis has written “Disability discrimination”.
No further detail or particularisation of the alleged disability discrimination is set out, save that in response to question 4 which asks:
Under what Act is the discrimination you are complaining of unlawful?
Mr Ellis has selected the box for the Disability Discrimination Act 1992 (Cth) (“DD Act”), and in relation to question 5 which requires the applicant to state all sections of the Act that are relevant to the claim he has written “46PH(2)”. The Court observes that there is no s.46PH(2) in the DD Act, but that s.46PH(2) of the AHRC Act provides that the President of the Australian Human Rights Commission (“AHRC”) must notify complainants in writing of a decision, and the reasons for that decision, if the President decides to terminate a complaint to the AHRC.
Part C of the Application Form deals with the applicant’s personal details. Part D of the Application Form seeks to establish the relationship between the applicant and the respondent, in relation to which Mr Ellis has indicated that he is a “Customer of” Kanyana Wildlife. Part E of the Application Form seeks details of any extension of time which is sought. No extension of time is sought here.
Part F of the Application Form deals with required documents and provides that a copy of the complaint to the AHRC “(if available)”, and the notice of termination of complaint given by the President of the AHRC must accompany the application and claim. In response thereto, Mr Ellis has indicated that a copy of the notice of termination of complaint is attached. A copy of the original complaint to the AHRC was not attached to the application form.
The notice of termination of complaint indicates that reasons for the decision to terminate the complaint are at attachment A, and that a copy of the complaint is provided at attachment B. Neither the reasons for the decision to terminate the complaint nor a copy of the complaint were provided with the notice of termination of complaint attached to the application form.
Observations on the Application Form
The Application Form does not necessarily require an applicant to set out their claim of discrimination in a manner which discloses its substance. Part B – Grounds of Application does not require that an applicant set out the grounds of the application, as none of the questions under Part B – Grounds of Application in the Application Form require an applicant to set out their points of claim, or to set out the facts alleged. Rather, an applicant, taking the questions asked under Part B – Grounds of Application literally, can simply state the type of discrimination being complained about (eg disability, in this case – age, sex or race in other cases), tick the relevant box in relation to the relevant Act, and state the sections of that Act relevant to the claim. There is no provision which directs an applicant, or requires an applicant to, set out their points of claim or the alleged facts of their claim (as there is in relation to, for example, the Application Form which initiates proceedings under the Fair Work Act 2009 (Cth) in this Court).
The consequence of the nature of the Application Form and the lack of a requirement to file an affidavit, means that at first directions hearings in claims under federal discrimination legislation in this Court, it will often be necessary to direct that an amended Application Form be filed including points of claim, or to direct that a statement of claim or points of claim, or affidavit, be filed. In some cases, and this is one, the respondent therefore files an application in a case seeking that the application be struck out because no cause of action is revealed by the content of the Application Form. Whilst the nature of the Application Form, or the absence of an affidavit, might not be a difficulty where lawyers are acting, and annex points of claim or a statement of claim, it is a difficulty where a self-represented litigant does not do so, and where, as here, the Application Form is taken literally. It results in an applicant not disclosing the basis of the claim made with sufficient specificity, and, consequently, in unnecessary applications in a case being made, and unnecessary further directions for applicants to file statements of claim to be made, as has ultimately happened in this case. It would be simpler if applicants in human rights proceedings were required to file an application in the usual way.
Response
In a response filed on 3 December 2014 Kanyana Wildlife sought that Mr Ellis’ claim be dismissed, and indicated that its grounds of opposition were as follows:
1. The Applicant’s claim is misconceived as there is no cause of action for unlawful discrimination (on the basis of his disability) identified either under the Disability Discrimination Act 1992 or the Australian Human Rights Commission Act 1986.
2. In the circumstances, the Applicant has no reasonable prospect of successfully prosecuting the claim in this Honourable Court.
3. The Applicant’s claim is frivolous and/or vexatious.
Kanyana Wildlife’s application in a case
On 2 February 2015 Kanyana Wildlife filed an application in a case seeking that Mr Ellis’ application be struck out. The application in a case was supported by affidavits of:
a)Barbara May Wright dated 30 January 2015 (“Ms Wright’s Affidavit”);
b)Sarah Virginia Dudley dated 30 January 2015 (“Ms Dudley’s Affidavit”);
c)Margaret Joan Robinson dated 30 January 2015 (“Ms Robinson’s Affidavit”); and
d)June Butcher dated 14 May 2015 (“Ms Butcher’s Affidavit”).
Orders made by the Court
On 9 February 2015 the Court made orders requiring Mr Ellis to file and serve a statement of claim (“Statement of Claim”) and any affidavits in support of the statement of claim by 9 March 2015, and referring the matter to a Registrar of the Court for the issuance of a pro bono certificate pursuant to r.12.02 of the FCC Rules for advice to be given to Mr Ellis by a lawyer if one were available.
The Court is not privy to what occurred as a consequence of the issuance of a pro bono certificate by a Registrar of the Court, but it suffices to observe for present purposes that Mr Ellis remains self-represented.
Mr Ellis’ Statement of Claim
Pursuant to the Court’s orders of 9 February 2015 Mr Ellis filed a Statement of Claim on 21 February 2015. Mr Ellis did not file any affidavit in support of the Statement of Claim.
The Statement of Claim is handwritten and difficult to read, but appears to read as follows:
1-DISABILITY DISCRIMINATION ACT.
2-SECTION 23 – ACCESS TO PREMISES.
- NO RAMP TO MENS TOILETS.
- DANGEROUS SLOPED PATHS OF GRAVEL WITH NO RAILS.
3-SECTION 24 – GOODS/SERVICES/FACILITIES.
- INDIGNITY OF USING FEMALE TOILETS.
4-SECTION 5 – DIRECT DISCRIMINATION.
5-TO STATE BEL MAY – HUNTER IS EMOTIONAL AND DISTRESSED IS A COMPLETE + CONFIDENTIALITY FALLICY – WE ARE ACTUALLY FRIENDS.
6-ALL AFFIDAVITS ARE HIGHLY LIBELOUS, DEFAMATORY, BASED ON LIES + HEARSAY – BASED ON OPINIONS BACK STABBING, INSULTS + ABUSE. THE OTHER VOLUNTEERS HAD NO RESPECT TO WALK WITH ME, BUT INSTEAD LEFT ME BEHIND – WHO IS A BAD PERSON.
7-KANYANA SAYS THEY ARE NOT FOR PROFIT AND CANNOT PAY COMPENSATION, IN CASE SARAH DUDLEY HAS MONEY + ASSETS.
8-I HAVE ALREADY DISLOSED ALL STATEMENTS OF CLAIM IN PREVIOUS STATEMENT.
(Transcribed as accurately as possible from the original).
Further Response
Following the filing of Mr Ellis’ Statement of Claim Kanyana Wildlife filed a further Response (“Further Response”) on 6 March 2015. Relevantly, the Further Response sought orders that:
1.The Applicant's application to the Federal Circuit Court, dated 17 November 2014, be dismissed or struck out (Claim).
2.The Applicant pay the Respondent's costs to be assessed if not agreed.
3.The Court make any other order it deems fit.
The Further Response sets out the grounds of opposition to the Statement of Claim as follows:
1.The Respondent cannot plead to paragraph 1 of the Statement of Claim as it lacks particularity.
2.The Respondent denies paragraph 2 of the Statement of Claim and further says that a claim based on section 23 of the Disability Discrimination Act 1992 (Cth) (DD Act) is outside the parameters of the Claim and the claim brought at first instance in the Australian Human Rights Commission, being file number 2014-12086D (AHRC Claim).
3.The Respondent denies paragraph 3 of the Statement of Claim and further says that a claim based on section 24 of the DD Act is outside the parameters of the Claim and the AHRC Claim.
4.The Respondent cannot plead to paragraph 4 of the Statement of Claim as it lacks particularity.
5.The Respondent cannot plead to paragraphs 5, 6 and 7 of Statement of Claim as they are not facts in any way connected to the Applicant's claim of unlawful disability discrimination contrary to the provisions of the DD Act.
6.As to paragraph 8 of the Statement of Claim, the Respondent says that it does not address any fact in the Claim such that it can or needs to be pleaded to.
Kanyana Wildlife’s submissions on the application in a case
Kanyana Wildlife seeks the summary dismissal of the Originating Application under r.13.10 of the FCC Rules on the basis that:
a)the Originating Application has no reasonable prospect of success because:
i)the Court has no jurisdiction to hear the Originating Application as it is not a matter properly before the Court because the claim now made is not the same as the claim which was before the AHRC: AHRC Act, s.46PO(3); and
ii)the Originating Application has no prospect of success because no disability has been identified or particularised in the Originating Application or Statement of Claim; and
b)otherwise seeks the dismissal of the Originating Application on the grounds that it is frivolous, vexatious or an abuse of process.
Consideration - summary dismissal
Legislative provisions
Rule 13.10 of the FCC Rules provides as follows:
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.
Rule 13.10 of the FCC Rules replicates part of s.17A of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) and the authorities on s.17A of the FCCA Act are useful in considering r.13.10 of the FCC Rules, as was observed by the Federal Court in relation to the equivalent provisions in s.31A of the Federal Court of Australia Act 1976 (Cth) (“FC Act”) and r.26.01 of the Federal Court Rules 2011 (Cth) (“FC Rules”) in Manday Investments Pty Ltd v Commonwealth Bank of Australia (No 3) [2012] FCA 751 at [8] per McKerracher J and Leica Geosystems Pty Ltd v Koudstaal [2012] FCA 1337 at [16] per Collier J respectively. Albeit that s.17A of the FCCA Act and r.13.10(a) of the FCC Rules might afford slightly different means of summary relief, the High Court’s observations in Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 at [58]-[60] per Hayne, Crennan, Kiefel and Bell JJ (“Spencer”) can nevertheless be applied to the “no reasonable prospect” provisions in r.13.10(a) of the FCC Rules.
In Spencer it was observed that:
a)no paraphrase of the expression “no reasonable prospect” can be adopted as a sufficient explanation of its operation, let alone definition of its content: Spencer at [58] per Hayne, Crennan, Kiefel and Bell JJ;
b)the expression cannot usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it can be said that there is “no reasonable prospect”: Spencer at [58] per Hayne, Crennan, Kiefel and Bell JJ;
c)the creation of a lexicon of words or phrases intended to capture the operation of the phrase is to be avoided: Spencer at [58] per Hayne, Crennan, Kiefel and Bell JJ;
d)where a plaintiff has no reasonable prospect of prosecuting a proceeding the proceeding could be described as “frivolous”, “untenable”, “groundless” or “faulty”, but these expressions, either alone or in combination, should not be understood as providing a sufficient chart of the metes and bounds of the relevant power, nor can reasonableness be sufficiently or completely illuminated by contrast with a claim which would be frivolous, untenable, groundless or faulty: Spencer at [59] per Hayne, Crennan, Kiefel and Bell JJ;
e)the power may only be exercised if a court is satisfied that the application has no reasonable prospect of success: Spencer at [60] per Hayne, Crennan, Kiefel and Bell JJ;
f)the power to dismiss an action summarily is not to be exercised lightly: Spencer at [60] per Hayne, Crennan, Kiefel and Bell JJ; and
g)full weight must be given to the expression as a whole, and 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: Spencer at [60] per Hayne, Crennan, Kiefel and Bell JJ.
In relation to the direct equivalent of s.17A of the FCCA Act in s.31A of the FC Act the Federal Court has observed in relation to the phrase “no reasonable prospect of success”, that:
a)a court must be satisfied that the applicant has no reasonable prospect of success;
b)evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects, and in a case where evidence can give colour and content to allegations, and where questions of fact and degree are important, a court should be more reluctant to dismiss a proceeding on the face of a pleading;
c)it was not Parliament’s intention to require a court to engage in lengthy and elaborate trials on an interlocutory basis for the purposes of determining whether or not a proceeding has no reasonable prospects of success. It may be necessary for the opposing party to provide no more than an outline of evidence, sufficient to show that there is a genuine dispute, to prevent the summary application becoming a trial;
d)if there is a real issue of fact or law to be decided, and the rights of the parties depend upon it, it is obviously appropriate that the matter goes to trial. It cannot be said, where there is a real factual dispute and that factual dispute must be resolved to determine whether the claim succeeds, that there is “no reasonable prospect of success”;
e)in determining if there are real issues of fact in issue so as to preclude summary judgment the courts must draw all reasonable inferences in favour of the non-moving party;
f)a summary dismissal proceeding ought not be used to shut out proceedings where, on a proposition of law, there may be room for doubt. On questions of law, an inquiry as to their merit should not be for the purpose of resolving them and also not simply to determine whether the argument is hopeless, but in order to decide if it is sufficiently strong to warrant a trial;
g)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
h)what is required is a prediction of the outcome of a trial on the merits but not an actual adjudication of those merits such that a court ought not dismiss a claim based on a predictive assessment of prospects, where it is possible that if the claim went to trial, it may succeed.
See George v Fletcher (Trustee) [2010] FCAFC 53 at [75] per Ryan and Logan JJ; White Industries Aust Ltd & Anor v Federal Commissioner of Taxation & Anor [2007] FCA 511; (2007) 160 FCR 298 at [50]-[54] per Lindgren J; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd & Ors [2008] FCAFC 60; (2008) 167 FCR 372; (2008) 246 ALR 465; (2008) 103 ALD 505; [2008] ATPR 42-231 at [45] per Rares J; Lawrenson Light Metal Die Casting Pty Ltd (in liq) v Cosmick Pty Ltd [2006] FCA 753 at [15] per Heerey J; Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 at [6] per Gilmour J.
The Court’s power to summarily dismiss an application is discretionary, and Kanyana Wildlife in making the summary dismissal application, bears the onus of persuading the Court to make such an order: Australian Securities & Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256; (2013) 302 ALR 671; (2013) 94 ACSR 623 at [46] per Reeve J.
Consideration – whether the same as AHRC Complaint
Legislative provision
Section 46PO(3) of the AHRC Act provides as follows:
(3) 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.
Case law
In Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531; (2000) 105 FCR 573; (2000) 105 IR 153 (“Fuji Xerox”) the Federal Court dealt with the provisions of s.46PO(3) of the AHRC Act (then the Human Rights and Equal Opportunity Commission Act 1986 (Cth), but which the Court will refer to as the AHRC Act) and in particular the legal characterisation of the allegations of fact made or sought to be made. The Federal Court observed at [37] per Katz J that:
In the two situations with which … [s.46PO(3) of the AHRC Act] deals, it permits an applicant in a proceeding before the Court to claim that the facts alleged against the respondent constitute unlawful discrimination of a different legal character than the unlawful discrimination which was claimed in the relevant terminated complaint.
Of s.46PO(3)(a) of the AHRC Act the Federal Court in Fuji Xerox said that it proceeded on the basis that the allegations of fact being made before the Court were the same as those made in the complaint terminated by the AHRC, and went on to observe at [38]-[41] per Katz J that:
However, it goes further, permitting the applicant to claim in the proceeding as well that those facts bear a different legal character from what they were claimed in the complaint to bear, provided, however, that the legal character now being claimed is not different in substance from the legal character formerly being claimed.
… on the other hand, [it] permits the applicant to allege in the proceeding before the Court different facts from those which were alleged in the relevant terminated complaint, provided, however, that the facts now being alleged are not different in substance from the facts formerly being alleged. It further permits the applicant to claim that the facts which are now being alleged bear a different legal character than the facts which were alleged in the complaint were claimed to bear, even if that legal character is different in substance from the legal character formerly being claimed, provided that that legal character “arise[s] out of” the facts which are now being alleged.
It appears to me that …. [s.46PO(3)(a)] was likely to have been intended to cover situations in which, for instance, a person makes a complaint to the Commission of the doing of an act constituting unlawful disability discrimination in employment, which complaint cannot be conciliated and is terminated, and the person then makes an application to this Court in respect of the terminated complaint, claiming instead, but on the basis of the same allegations of fact, unlawful disability discrimination in contract work …
… it is apparent that … [s.46PO(3)(a)] … provides no warrant for an applicant in the proceeding in this Court to make any allegation of fact in the proceeding different from those which were made in the applicant’s earlier complaint to the Commission. … [s.46PO(3)(b)] … does permit an applicant in a proceeding in this Court to make allegations of fact in the proceeding different to a certain extent from those which were made in the applicant’s earlier complaint to the Commission.
In Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118; (2010) 63 AILR 101-302 (“Dye (No 2)”) the Full Court of the Federal Court made the following general observations with respect to s.46PO(3) of the AHRC Act at [46]-[48] per Marshall, Rares and Flick JJ:
46 Section 46PO(3) contemplates some ambit for additional conduct, acts, omissions or practices to constitute unlawful discrimination. In Travers v State of New South Wales [2000] FCA 1565 at [8] Lehane J referred to the terms of s 46PO(3) as suggesting a degree of flexibility. However, s 46PO(3) operates as an important constraint upon the ability of a complainant later to seek relief in the Court in respect of a complaint he or she had not previously raised for consideration by the Commission. As Lehane J cautioned, the ability to make an application to the Court “should not be used to launch an application … effectively bypassing the procedures provided by the legislation”: Travers [2000] FCA 1565 at [8]. His Honour also followed the warning of Branson J in Commonwealth v Sex Discrimination Commissioner (1998) 90 FCR 179 at 188B-D, that usually a complaint will not be drawn by a lawyer and it ought not be construed as a pleading. Justice Branson held also that a complaint under s 46P was not to be equated to a criminal complaint or information: 90 FCR at 188B . Her Honour followed Merkel J's decision in Simplot Australia Pty Ltd v Human Rights and Equal Opportunity Commission (1996) 69 FCR 90 at 93-94 that a complaint in writing did not need to include any details of the alleged unlawful discrimination (see now s 46P of the AHRC Act).
47 As Lehane J said in Travers [2006] FCA 1565 at [8], the ambit of the complaint may be ascertained for the purpose of s 46PO(3), not by considering its initial form, but by considering the shape it had assumed at the time of its termination: see too Simplot 69 FCR at 94F -G. In Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573 at 580-581 [35]-[41] Katz J considered the construction of s 46PO(3). He held that s 46PO(3)(b) permitted an applicant to allege different facts in proceedings in the Court from those alleged in the terminated complaint, provided that those new facts were not different in substance from those formerly alleged: Charles 105 FCR at 580 [39].
48 The unlawful discrimination referred to in s 46PO(3) consists of any acts, omissions or practices alleged in the complaint that amount to unlawful discrimination as defined in s 3(1) of the AHRC Act. It is not appropriate for a court considering an application for leave to amend to preclude an amendment that raises an arguable claim for relief, especially where the terms of s 46PO(3)(b) (in particular) permit of some flexibility. And, in applying the terms of s 46PO(3), the terms of a complaint made to the Commission should not be read with the same strictures as apply to a pleading in a Court. Not only was this approach implicitly recognised by the flexibility of the terms employed in the sub-section itself, s 46PR required an approach “not bound by technicality”. It provided in relation to, among other provisions, s 46PO:
“Court not bound by technicalities
46PR In proceedings under this Division, the Federal Court and the Federal Magistrates Court are not bound by technicalities or legal forms. This section has effect subject to Chapter III of the Constitution.”
The “substantive directions” given by s 46PO(3) must still be respected, notwithstanding the provisions of s 46PR: Maghiar v Western Australia [2002] FCA 262 at [18] per French J.
In Dye (No 2) at [50] per Marshall, Rares and Flick JJ the Full Court of the Federal Court held that an additional allegation of sexual assault, not previously made in respect of the complaint terminated by the AHRC, was an act that arose out of the same unlawful discrimination about which complaint had been made, or was of the same substance, in circumstances where the complaint to the AHRC had complained of the applicant being subject to a course of sexual harassment in a variety of forms over a period of months, and the new incident fell, in time, between two other alleged incidents of sexual harassment which were 13 days apart. The Full Court of the Federal Court held that the scope of the complaint to the AHRC was sufficiently wide to prevent summary exclusion of the additional factual allegation at an interlocutory stage, but observed at [50] per Marshall, Rares and Flick JJ that:
There may well be cases where at an interlocutory stage it is clear that an allegation could not be made in an application under s 46PO(3) because it fell outside any issue reasonably justiciable in respect of a complaint terminated by the Commission.
Factual material
As indicated above, the Court may only have regard to the AHRC Complaint for the purposes of determining whether the Court has jurisdiction: AHRC Act, s.46PO(3), but has regard to the AHRC Complaint in the shape assumed at the time of the termination of the AHRC Complaint: Dye (No 2) at [47] per Marshall, Rares and Flick JJ (and cases there cited).
Mr Ellis’ AHRC Complaint in its original form was contained in an email dated 15 June 2014 to the AHRC. Mr Ellis said that:
I wish to lodge a formal complaint for disability discrimination at a community organisation in a volunteer capacity.
Butcher Affidavit at Annexure JB-1.
The detail of the alleged discrimination, which concerns a variety of matters alleged against Sarah Dudley, Kanyana Wildlife’s then volunteer coordinator, are that Ms Dudley:
a)“… discriminated against me as she kept on raving on about finding me a niche and not sure where she could find me any sort of job. Not once was I offered a chair at the first part of training at the bilby enclosure.”;
b)“On a training day on Saturday, May 2014 she did her best to berate me in front of other trainees and then tell me at the end of the day, my personality would not fit in here …”;
c)“… humiliated me and went on to walk me all over the place at this wildlife hospital viewing work I would not be physically able to do. I was singled out the entire day because she did not want me there. She asked nothing about my disabilities …”; and
d)“… exhausted me and I feel intentionally to weed me out then had to say my personality was no good. I told her I could do reception work as I’m very good at it and her insulting comments were so I say. She even shooshed me at the end of the day …”.
In the penultimate paragraph of the 15 June 2014 email Mr Ellis says:
I will never ever return to Kanyana for any purpose even if I find a sick animal. I have never been treated so appallingly by any other employer even before I received this disablement.
On 7 October 2014 a delegate of the President of the AHRC sent Mr Ellis a Notice of Termination of his AHRC Complaint, issued under s.46PH(2) of the AHRC Act. The Notice of Termination attached a copy of the reasons for the decision to issue the Notice of Termination (“Reasons for Decision”).
The Reasons for Decision indicate that the AHRC Complaint was considered under ss.5, 6, 11, 15, 21A, 21B, 29 and 29A of the DD Act.
The Court notes that:
a)section 5 of the DD Act sets out what constitutes direct disability discrimination;
b)section 6 of the DD Act sets out what constitutes indirect disability discrimination;
c)section 11 of the DD Act sets out circumstances to be taken into account in determining whether a hardship imposed on a person would be an unjustifiable hardship;
d)section 15 of the DD Act makes it unlawful for a person to discriminate on the grounds of disability in the area of employment;
e)section 21A of the DD Act provides an inherent requirements exception in relation to disability discrimination;
f)section 21B of the DD Act provides it is not unlawful for a person to discriminate on the ground of disability if avoiding the discrimination would impose an unjustifiable hardship on that person;
g)section 29 of the DD Act makes it unlawful to discriminate on the ground of disability in relation to the performance of functions or exercise of power under a Commonwealth law or for the purpose of a Commonwealth programme; and
h)section 29A of the DD Act provides an unjustifiable hardship exception to discrimination in the areas referred to in Division 2 of Part 2 of the DD Act, which include s.23 of the DD Act dealing with access to premises, s.24 of the DD Act dealing with discrimination in relation to the provision of goods, services and facilities and s.29 of the DD Act which is summarised above.
The Reasons for Decision set out the decision made by a delegate of the President of the AHRC and the reasons for that decision in the following terms:
My decision
Under section 46PH(1)(c) of the Australian Human Rights Commission Act 1986 (Cth) (AHRCA), the President may decide to terminate a complaint if she is satisfied that the complaint is misconceived.
I have considered all the information that has been provided and I am satisfied that the complaint is misconceived. Therefore I have terminated your complaint under section 46PH(1)(c) of the AHRCA.
I will explain the reasons for my decision.
Reasons for my decision
The DDA says that it is unlawful to discriminate against a person on the ground of disability in particular areas of public life. I have considered your complaint in relation to discrimination in the area of employment (section 15 of the DDA) and in the administration of Commonwealth laws and programs (section 29 of the DDA).
A complaint can be considered to be misconceived where there is a misunderstanding about how the law applies to a particular situation. The information before me indicates that you were not in paid employment or applying for a paid employment position with Kanyana, but that you were interested in undertaking a voluntary role at Kanyana. As voluntary work does not fall within the definition of 'employment' in the DDA, I am of the view that your allegations cannot be considered under section 15 of the DDA.
The information before me does not indicate that Kanyana was performing a function, exercising a power or fulfilling a responsibility for the administration or conduct of the Mobility Allowance program, but that Kanyana was a possible place at which [you] considered you could obtain a voluntary role to enable you to be eligible for the allowance. As Kanyana was not responsible for the administration of the allowance, I am of the view that a complaint under section 29 of the DDA is misconceived in that it is based on an incorrect understanding of who was responsible for the act.
For the reasons outlined above, I am satisfied that your complaint is misconceived.
Analysis
It is evident from the Reasons for Decision that the final form which Mr Ellis’ AHRC Complaint assumed was one of discrimination under s.15 of the DD Act in relation to employment and s.29 of the DD Act in relation to the administration of Commonwealth laws and programmes. The consideration of AHRC Complaint by reference to ss.15 and 29 of the DD Act is consistent with the content of the AHRC Complaint contained in Mr Ellis’ email of 15 June 2014. There is no evidence which would indicate that between the making of the AHRC Complaint and the sending of the Reasons for Decision that the AHRC considered the AHRC Complaint upon any basis other than ss.15 and 29 of the DD Act.
An examination of the AHRC Complaint does not indicate that Mr Ellis complained about disability discrimination:
a)on the basis of access to Kanyana Wildlife’s premises under s.23 of the DD Act; or
b)in relation to the provision of goods or services or the availability of facilities at or by Kanyana Wildlife for the purposes of s.24 of the DD Act.
There is nothing in the AHRC Complaint, or in the Reasons for Decision, which indicates that a complaint was made for the purposes of s.23 of the DD Act in relation to there being no ramp to the men’s toilets or there being dangerous sloped paths of gravel with no rails at Kanyana Wildlife. Indeed, the Complaint indicates that Ms Dudley “walk[ed] me all over the place at this wildlife hospital viewing work I would not be physically able to do” and that in the process she “exhausted” Mr Ellis. There is no complaint however as to the means of access to any part of Kanyana Wildlife, and perhaps unsurprisingly, the delegate to the President of the AHRC has not considered the complaint to be one engaging s.23 of the DD Act.
Mr Ellis was not being provided with goods or services by Kanyana Wildlife, but, seemingly, wanted to work there as a volunteer (although the Reasons for Decision do note that he did not complete a volunteer application form: Ms Butcher’s Affidavit at JB-1, Reasons for Decision as page 1). In any event, it is plain that Mr Ellis’ AHRC Complaint did not complain about the failure to provide goods or services, and again, unsurprisingly, the Reasons for Decision do not consider this issue. Nor do the Reasons for Decision consider the failure to make facilities available, because, again, Mr Ellis made no complaint in the AHRC Complaint about the failure to provide facilities, let alone the alleged indignity of using the female toilets which is alleged in the Statement of Claim.
In the above circumstances, it is the view of the Court that the unlawful discrimination alleged in the Statement of Claim is not the same as the unlawful discrimination the subject of the AHRC Complaint, and nor does it arise out of the same, or substantially the same, acts, omissions or practices that were the subject of the AHRC Complaint.
It follows from the above that the application as set out in the Statement of Claim has no reasonable prospect of success, because there is no justiciable issue which arises from the Statement of Claim. Were the content of the Statement of Claim to have been directed toward discrimination under ss.15 and 29 of the DD Act, and the acts, omissions or practices the subject of the AHRC Complaint, then the Court would have had issues before it which, on their face at least, were justiciable. Counsel for Kanyana Wildlife, quite properly, indicated to the Court that leave to re-plead the Statement of Claim in a form contemplated by s.46PO(3) of the AHRC Act could not fairly be resisted, but that it ought not to be an “endless process”: Transcript, page 6.
This is not a case of the Court having no jurisdiction to consider the application by reason of a lack of symmetry for the purposes of s.46PO(3) of the AHRC Act. The fact that the application is made, and that there is a Notice of Termination of the AHRC Complaint, gives the Court jurisdiction: AHRC Act, s.46PO(1). Where, as here, the Statement of Claim does not fill the requirements of s.46PO(3) of the AHRC Act, the Court has power to either dismiss the matter or strike out the relevant pleading on the basis that it has no reasonable prospect of success: FCC Rules, r.13.10.
In this case, Mr Ellis, who is a self-represented litigant, has had one opportunity to properly plead a Statement of Claim. The Court makes that observation because of what is said above at [11]-[12] in relation to the nature of the Application Form which does not require any form of pleading, any form of setting out of the points of claim, or any setting out of the facts relied upon. In the circumstances, the Court considers that it is appropriate for Mr Ellis to be given a further opportunity to plead his case, and leave will be granted to file an amended Statement of Claim by 28 February 2017. The matter will otherwise be adjourned to a further directions hearing at 3.00pm on 3 March 2017.
There is a further reason as to why the Statement of Claim as presently pleaded has no reasonable prospect of success. That is because it does not disclose a case of disability discrimination by reason of the fact that it does not:
a)identify the applicant’s disability; or
b)identify how the alleged discrimination is based on the particular disability, that is that the applicant was discriminated against “because of” a disability.
The necessity to identify the relevant disability, and identify that the alleged discrimination is because of that disability is well established: DD Act, s.5(1) and (2); Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92; (2003) 78 ALJR 1; (2003) 202 ALR 133; (2003) 77 ALD 570; [2004] EOC 93-305; Qantas Airways Ltd v Gama [2008] FCAFC 69; (2008) 167 FCR 537; (2008) 247 ALR 273; (2008) 101 ALD 459; [2008] EOC 93-493 at [90]-[91] per French and Jacobson JJ (“Gama”). In Gama a ground of appeal in relation to alleged disability discrimination was successful because Mr Gama made “no attempt … to identify a disability which allegedly caused the less favourable treatment”: Gama at [90] per French and Jacobson JJ, and the first instance court “did not identify the relevant disability nor the particular way in which the remarks constituted less favourable treatment because of the disability”: Gama at [91] per French and Jacobson JJ.
The failure of Mr Ellis to identify the disability from which he suffers in his Statement of Claim, and to identify how the discrimination was “because of” his disability, is fatal to the success of the Statement of Claim as presently pleaded. It follows that the Statement of Claim must be struck out on this basis also.
The Court also observes that [5]-[8] inclusive of the Statement of Claim are either irrelevant or embarrassing (in a pleading sense), and should therefore be struck out.
In the above circumstances, it is unnecessary to consider whether the claim presently made by Mr Ellis is frivolous, vexation or an abuse of process.
Conclusion and orders
The Court has concluded that:
a)the Statement of Claim does not allege discrimination which:
i)is the same, or the same in substance as, the discrimination alleged in the AHRC Complaint; or
ii)arises out of the same, or substantially the same, acts, omissions or practices that were the subject of the AHRC Complaint;
b)the Statement of Claim does not identify the disability alleged, or how the discrimination arises because of any disability alleged;
c)because of (a) and (b) above, the Statement of Claim must be struck out in its entirety, and, in any event [5]-[8] of the Statement of Claim are also struck out on the basis that they are irrelevant and embarrassing;
d)Mr Ellis should be granted leave to file a Further Statement of Claim by 4.00pm on 28 February 2017; and
e)the matter should otherwise be adjourned to a further directions hearing at 3.00pm on 3 March 2017.
The Court will hear the parties as to costs.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Date: 24 January 2016
11
22
9