Fiorido v Little - [2008] NTCA 6

Fiorido v Little [2008] NTCA 6

PARTIES: FIORIDO, Giuseppe

v
LITTLE, Melanie

TITLE OF COURT:  COURT OF APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CIVIL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:AP 10 of 2007 (20716981)
DELIVERED:  29 August 2008
HEARING DATE:  22 & 24 October 2007
JUDGMENT OF:  Southwood J
APPLICATION FOR LEAVE
TO APPEAL FROM:  Master Coulehan
CATCHWORDS:

APPLICATION FOR LEAVE TO APPEAL – Whether the statement of claim pleads a cause of action – limitation of action - whether any possible claim is statute barred – application dismissed
REPRESENTATION:
Counsel:
Applicant:Self Represented
Respondent:  A Cox
Solicitors:
Applicant:Self Represented
Respondent:  De Silva Hebron
Judgment category classification:    B
Judgment ID Number:  Sou0810
Number of pages:  27

IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Fiorido v Little [2008] NTCA 6

No. AP 10 of 2007 (20716981)
BETWEEN:

GIUSEPPE FIORIDO

Applicant

AND:

MELANIE LITTLE

Respondent

CORAM: SOUTHWOOD J
REASONS FOR JUDGMENT
(Delivered 29 August 2008)
Introduction

This is an application for leave to appeal a Judgment of Master Coulehan that was delivered on 26 July 2007. On that day the Master gave judgment for Ms Little against Mr Fiorido in proceeding No. 66 of 2007 in which Mr Fiorido claimed damages from Ms Little in the amount of $5195.30. The Master gave judgment in favour of Ms Little for the reasons that the statement of claim filed by Mr Fiorido disclosed no cause of action and in any event any possible cause of action was time barred.
There are two principal questions in the application for leave to appeal. First, does the statement of claim plead a cause of action? Secondly, was any claim that Mr Fiorido may have against Ms Little statute barred? In my opinion Mr Fiorido has failed to establish any error in the Reasons for Decision of the Master. The statement of claim does not plead a cause of action and any claim that Mr Fiorido may have is statute barred. The application for leave to appeal is without merit and should be dismissed.
The factual background
The factual background to the application for leave to appeal is as follows.
Mr Fiorido was born on 31 March 1940. He is 68 years of age. Italian is his first language and he has significant difficulty with English. At all relevant times Mr Fiorido was in receipt of a disability pension. He was not in receipt of the old age pension.
On 5 June 1997, Mr Fiorido lodged an application to be allocated priority housing by the Northern Territory Department of Housing and Local Government (the Department). He was 57 years of age at the time. He was seeking a ground floor one bedroom Housing Commission unit in Darwin. Mr Fiorido lodged the application as he had been waiting since 18 June 1993 to be allocated a one bedroom ground floor unit in Darwin. The dwelling in which he was living required extensive repairs and was becoming a health hazard. By the time Mr Fiorido applied for priority housing, he had rejected the offer of a unit in Palmerston and the offer of an above ground unit in Darwin.
Mr Fiorido’s application for priority housing was based on medical grounds. He could not use the stairs to his dwelling without experiencing pain. The opinion of Dr Sankarayya that was lodged in support of Mr Fiorido’s application stated that he had been suffering from chronic back pain for four years. Radiological evidence demonstrated that he had marked lumbar degenerative disease, a prolapsed lumbar disc and foot drop.
The Department’s guidelines for priority housing as applicable in 1997 provide as follows. The Department usually allocated houses to applicants in the order in which applications were received. The Department recognised that some applicants were unable to procure or maintain housing in the private sector due to severe medical and social problems. A person could be given priority and their position in the list of persons waiting to be allocated housing could be changed in order to alleviate such problems. The fact that a person was given priority to other applicants did not necessarily mean that they would be accommodated forthwith as no suitable accommodation may be available. For an applicant to be given priority it was necessary for an applicant to demonstrate that his or her needs were urgent and serious enough to justify action being taken. Priority housing was intended to provide permanent long term housing. It was not intended to be emergency housing available at short notice to resolve an immediate crisis. In all cases an applicant was required to show why alternative housing options including their current housing arrangements were inadequate and that their financial circumstances were inadequate to secure private accommodation. An applicant who was applying for priority housing on medical grounds was required to show what part the provision of priority housing would play in the ongoing management of the applicant’s medical condition and to provide evidence from a doctor of the nature of the medical condition suffered by the applicant.
Mr Fiorido complained that when he lodged his application for priority housing he was told by Ms Sandra Wanka, an officer employed with the Department, that, as he was not an old age pensioner, he was “too young” to be allocated priority housing. The bases of Ms Wanka’s comments were that Mr Fiorido had expressed an interest in the units at either Tuckwell Court or the Hazel Reynolds Complex and those units had been set aside as dwellings for aged pensioners. They were not available to applicants who were not in receipt of the aged pension. Nonetheless, Mr Fiorido’s application was accepted and considered by the Out of Turn Committee of the Department. The Out of Turn Committee that considered Mr Fiorido’s application was constituted by Ms Wanka, Ms Jill Rechner and Ms Melissa Lines. The Out of Turn Committee rejected Mr Fiorido’s application.
In March 1998, Ms Grace Page, the Acting Director Tenancies in the Department, wrote to Mr Fiorido and informed him that his application had been unsuccessful. In her letter she stated that:
On Wednesday 11 March 1998, the Out of Turn Committee critically assessed your application for priority housing. I must advise you that unfortunately in this instance your application was not successful due to insufficient grounds for priority being established.
While Public Housing is allocated on a wait list, wait-turn system; priority housing is a means of targeting assistance to those who are most in need. All applications are carefully assessed because each time an application for priority is approved others must wait longer.
All housing applicants are means tested, therefore most experience difficulty in meeting private sector rent or are living in either overcrowded or inappropriate accommodation while they wait. In addition most aged and invalid pensioners suffer with medical problems and increasing frailty.
The Committee recognised that you have health problems but they are similar to many others on the wait list. Unlike many other applicants for priority housing you are housed albeit in accommodation which you say is inferior due to need for repairs and maintenance. You do have the option of moving to alternate more appropriate private sector accommodation.
The Committee also recognised your frustration at having to wait so long given that the wait-time has extended since you applied, unfortunately one bedroom accommodation is a scarce resource, such dwellings are rarely vacated so the turn-over is very low.
At our recent meeting I informed you of your right to appeal the Committees decision. If you wish to do so you should contact the Area Manager Palmerston, Mr Michael Tully […] to arrange an appropriate time. […]
The Committee’s decision in no way changes the normal progression of your tenancy application. You will be offered accommodation when your turn is reached provided that you continue to meet the Department’s means test and property ownership criteria.
Mr Fiorido appealed the Out of Turn Committee’s decision to Mr Tully but his appeal was unsuccessful. Mr Tully rejected Mr Fiorido’s appeal.
On 18 March 1998, Mr Fiorido received a letter from Mr Kon Vatskalis who was then the Manager of Environmental Health in Darwin. The letter informed Mr Fiorido that the accommodation in which he was living had been inspected by an Environmental Health Officer and a number of problems had been recorded. He was told that the problems required immediate attention and that if the problems were not fixed within 14 days the premises in which he was living would be deemed unfit for human habitation in accordance with reg 13 of the Northern Territory’s Public Health (General Sanitation, Mosquito Prevention, Rat Exclusion and Prevention) Regulations.
After Mr Tully rejected his appeal against the decision of the Out of Turn Committee, Mr Fiorido obtained legal advice from Ms Little and on 1 June 1998 he made a complaint to the Northern Territory Anti-Discrimination Commission. The essence of his complaint was that the Department had discriminated against him in the area of supply of a service namely, public rental housing, because of his age. Mr Fiorido relied on the fact that Ms Wanka had told him that his application for priority housing was unlikely to be successful because he was not on the old age pension and he was “too young” for priority housing. Mr Fiorido’s complaint to the Anti-Discrimination Commission was dismissed on the ground that it was filed out of time and the delegate of the Anti-Discrimination Commissioner declined to exercise her discretion to accept the complaint out of time (the first decision of the delegate of the Anti-Discrimination Commissioner).
Mr Fiorido appealed the first decision of the delegate of the Anti-Discrimination Commissioner to the Local Court in Darwin. He retained Ms Little as his solicitor for the appeal. The appeal was successful. On 21 December 1999, Dr Lowndes SM upheld Mr Fiorido’s appeal on the basis that there was a real possibility of a connection between the letter from the Northern Territory Housing Commission which was sent to Mr Fiorido in March 1998 and Ms Wanka’s comments on 5 June 1997 and that, in the circumstances, Mr Fiorido’s complaint to the Anti-Discrimination Commissioner was not filed out of time.
Dr Lowndes SM made the following orders. First, insofar as Mr Fiorido’s complaint to the Anti-Discrimination Commissioner is based on the letter of March 1998 the complaint is remitted to the Anti-Discrimination Commissioner for further consideration. Secondly, insofar as Mr Fiorido’s complaint was based solely on the comments made by Ms Wanka on 5 June 1997 the complaint is remitted to the Anti-Discrimination Commissioner for further consideration. Dr Lowndes SM extended the time for making a complaint.
On 18 January 2000, consistent with the decision of Dr Lowndes SM, Ms Linda Weatherhead, the delegate of the Anti-Discrimination Commissioner, accepted Mr Fiorido’s complaint and she began to investigate the matter. On the same day she wrote to Mr Fiorido and asked him to advise her of the orders that he was seeking. By letter dated 24 January 2000, Mr Fiorido advised Ms Weatherhead that he sought the following relief:
1.Compensation for me being distressed and humiliated by not being able to get allocated a house. This has caused me great distress as people have been saying things such as “you must be dumb because other people have got a house within six months and you have been waiting for many years.” I feel very upset about this.
2.A sum equivalent to $50 per week for each week I have had to pay extra rent in the private rental market since filling in a priority housing form on 5 June 1997. This does not account for all the time that I have been waiting for a house and I do not ask for the extra money at this stage.
3.Allocation of a priority unit in the Darwin area on the ground floor with a yard. This would be based on health grounds. I have serious health problems with both my legs now – previously I had difficulties mainly with my right leg.
On 23 March 2000, Ms Weatherhead dismissed Mr Fiorido’s complaint (the second decision of the delegate of the Anti-Discrimination Commissioner). She did so under s 76(1)(a) of the Anti-Discrimination Act 1992 (NT). Ms Weatherhead decided that Mr Fiorido was unable to establish a prima facie case of discrimination. She made the following findings:
The Complainant alleges that he was discriminated against on the basis of age in the area of supply of goods, services and facilities. In order to support a prima facie finding of discrimination I must be satisfied that there is a probability that if the matter went to a hearing the Complainant would be successful. There must, therefore, be some evidence of a connection between the Complainant’s attribute, being age, and the less favourable treatment he suffered, being the refusal of his priority application for housing.
It has not been denied by the Respondent that certain comments were made by Ms Wanka in relation to the Complainant’s age. The Respondent claims that the context of these comments was in relation to a request for certain housing that was set aside for aged pensioners and so additional eligibility requirements applied. Without any witnesses or further information as to the comments I am unable to prefer either party’s version of events.
For the purposes of testing the connection between the comments and the decision of the Out of Turn Committee I will assume that Mr Fiorido’s version in relation to the comments is correct, ie that the comments were made in relation to his age and not necessarily referable to a particular type of accommodation. The Complainant alleges that Ms Wanka’s views about him being too young may have influenced the Committee and his application was rejected on this basis.
The Out of Turn Committee that considered Mr Fiorido’s application consisted of Ms Wanka, Ms Jill Rechner and Ms Melissa Lines. The Respondent advises that the application was rejected on insufficient medical grounds and that age had no bearing on the committee’s decision. On the day that Mr Fiorido’s application was considered there were three other applications considered. Of these three, two were approved and one other was rejected. The two that were approved were both on severe medical grounds; the first concerned a 44 year old male who required a live-in carer and the other was for a 62 year old who suffered from a number of illnesses including Asbestosis. The other not approved was in relation to domestic violence.
In the circumstances it appears that age had no bearing on the decision of the Committee. Of the 2 applications approved one applicant was older and one younger than Mr Fiorido.
Mr Fiorido then appealed this decision and was unsuccessful on appeal on the basis that his grounds were not serious enough to warrant housing ahead of other applicants on the wait list who are also on disability payments and who have been waiting for a longer period of time. Mr Mike Tully, the Acting Regional Director Housing, made the decision on appeal. There is nothing to suggest that he was aware of or influenced by any alleged comments by Ms Wanka in relation to the appellant’s age.
On the information before me I have no basis on which to believe that there is a probability that Mr Fiorido would be successful at hearing and therefore I dismiss the complaint.
On 13 April 2000, Mr Fiorido appealed the second decision of the delegate of the Anti-Discrimination Commissioner to the Local Court. He again retained Ms Little as his solicitor for the appeal. The appeal was heard by Mr Trigg SM. During the course of the appeal a preliminary issue arose as to the nature of an appeal under s 106 of the Anti-Discrimination Act from a decision of the delegate of the Anti-Discrimination Commissioner dismissing a complaint in accordance with s 76(1)(a) of the Anti-Discrimination Act 1992 (NT). Mr Trigg SM determined that an appeal under s 106 of the Anti-Discrimination Act from a decision of a delegate of the Anti-Discrimination Commissioner in accordance with s 76(1)(a) of the Anti-Discrimination Act was an appeal by way of rehearing, it was not an appeal de novo.
On 13 September 2001, Mr Trigg SM upheld Mr Fiorido’s second appeal on the basis that the delegate of the Anti-Discrimination Commissioner who investigated Mr Fiorido’s complaint had not complied with the orders of Dr Lowndes SM as the delegate had not interviewed Ms Wanka prior to dismissing Mr Fiorido’s complaint for the second time.
Mr Trigg SM made the following orders. First, the decision of the delegate of the Anti-Discrimination Commissioner made on 23 March 2000 dismissing Mr Fiorido’s complaint is quashed. Secondly, Mr Fiorido’s complaint is remitted back to the Anti-Discrimination Commissioner to further investigate the matters that were referred back to the Anti-Discrimination Commissioner by Dr Lowndes SM. Mr Trigg SM did not make an order that the Anti-Discrimination Commissioner pay Mr Fiorido’s costs of the appeal. He refused Mr Fiorido’s application for costs.
On 20 August 2002, Mr Fiorido’s complaint against the Department was again dismissed by the delegate of the Anti-Discrimination Commissioner (the third decision of the delegate of the Anti-Discrimination Commissioner). On 21 August 2002, Ms Little wrote to Mr Fiorido and advised him that in her opinion there were no valid grounds to appeal the third decision to dismiss his complaint. In her opinion either the appeal would be dismissed or the complaint would be further dismissed. Further, in a letter to Mr Fiorido dated 9 September 2002, Ms little stated, “We will be rendering an account for work undertaken in the near future. I would ask that you seriously consider ending your action against the [Anti-Discrimination Commissioner] and the Housing Commission as it is my opinion that it will only cause further distress to you and cost extra money if you decide to engage a barrister (through our office).”
Ms Little also obtained the opinion of counsel, Mr Hunter, as to the merits of an appeal against the third decision of the delegate of the Anti-Discrimination Commissioner. Mr Hunter’s opinion was as follows. First, the delegate of the Anti-Discrimination Commissioner had now conducted a proper investigation of Mr Fiorido’s complaint. Secondly, Mr Fiorido had not demonstrated a real possibility of a connection between Ms Wanka’s comment and the refusal of his application for priority housing. Thirdly, there was no legal basis for Mr Fiorido’s discrimination complaint against the Department. Fourthly, there was no legal basis for Mr Fiorido’s appeal against the delegate’s decision. Mr Hunter’s opinion was provided to Mr Fiorido.
On 12 December 2002, Ms Sue Polden, a solicitor employed by Ms Little, wrote to Mr Fiorido confirming that in relation to the appeal against the third decision of the delegate of the Anti-Discrimination Commissioner, Mr Fiorido would either be acting for himself or obtaining a new lawyer.
Despite the unfavourable advice that he received, Mr Fiorido pursued his appeal against the third decision of the delegate of the Anti-Discrimination Commissioner. Mr Fiorido’s third appeal was heard by Mr Cavanagh SM. Mr Fiorido was unrepresented at the hearing of the appeal. On 30 January 2003, Mr Cavanagh SM dismissed Mr Fiorido’s appeal on the basis that the conduct of the Department about which Mr Fiorido complained was conduct that was exempted from complaint under s 57 of the Anti-Discrimination Act (NT).
Mr Fiorido did not appeal Mr Cavanagh’s decision to dismiss his third appeal. Instead, on 19 March 2007 under the Small Claims Act, he filed a statement of claim for debt or damages against Ms Little in the Local Court.In the statement of claim Mr Fiorido claims the sum of $5195.30 from Ms Little. The statement of claim is a very poorly drafted document. It is largely unintelligible.

The statement of claim that Mr Fiorido filed in the Local Court is set out below:

Very little can be understood from the pleading in the statement of claim. It seems that Mr Fiorido is alleging that Ms Little failed to present relevant evidence on his behalf when the appeals against the first and second decisions of the delegate of the Anti-Discrimination Commissioner were heard in the Local Court. Presumably the photographs are photographs of the state of disrepair of Mr Fiorido’s accommodation at the relevant time.
I presume that Mr Fiorido’s allegation that, “Melanie failed to defend me on accommodation [on the] original complaint”, is an allegation to the effect that when Ms Little had the conduct of Mr Fiorido’s original complaint in the Anti-Discrimination Commission, she should have argued that the Department’s prohibited discriminatory conduct occurred in the area of accommodation. Instead, Ms Little argued that the Department’s prohibited discriminatory conduct occurred in the area of goods, services and facilities (see s 28 of the Anti-Discrimination Act). If this is what is intended then the allegation is inconsequential and does not give rise to a cause of action. Mr Fiorido’s complaint was dismissed because Mr Fiorido had not demonstrated a real possibility of connection between Ms Wanka’s comment and the refusal of his application for priority housing by the Out of Turn Committee. Mr Fiorido’s complaint was not dismissed because it was said that the prohibited conduct did not occur in the area of goods, services and facilities.
The statement of claim does not plead a cause of action against Ms Little. The pleading is incomplete. Mr Fiorido does not state why the evidence to which he refers was relevant. Nor does he state the consequences of the alleged failure to tender the evidence to which he refers. Nor does he state how he incurred the loss or damages of $5195 or how that sum is made up or calculated.
A fundamental difficulty with any complaint that Mr Fiorido makes about Ms Little’s conduct of the first two appeals to the Local Court from the decisions of the delegate of the Anti-Discrimination Commissioner is that Mr Fiorido was successful in both appeals.
On 26 April 2007, the solicitors for Ms Little filed a defence to Mr Fiorido’s statement of claim in the Local Court. In the defence it is denied that Ms Little owes the plaintiff the sum of $5000 and it is pleaded that Mr Fiorido’s statement of claim does not disclose a cause of action. It is also pleaded that Mr Fiorido was successful in the appeals in the Local Court in which he retained Ms Little and that he has suffered no detriment. In addition, the defence raises defences based upon the Legal Practitioners Act and the Limitation Act.
On 7 June 2007, Ms Little’s solicitors filed an interlocutory application seeking judgment or, alternatively, an order that the proceedings be struck out, on the grounds that Mr Fiorido’s statement of claim does not disclose a cause of action and was statute barred because the limitation period had expired under s 12 of the Limitation Act.
On 15 June 2007, the Chief Magistrate ordered that the proceeding be transferred from the Local Court to the Supreme Court of the Northern Territory. The orders were made because Ms Little had been appointed a magistrate. It was the Chief Magistrate’s opinion that it was inappropriate for the matter to be heard by Ms Little’s fellow magistrates.
The application to strike out Mr Fiorido’s statement of claim
On 29 June 2007, Ms Little’s interlocutory application for judgment or, alternatively, to strike out Mr Fiorido’s statement of claim was heard by the Master of the Supreme Court. In support of the application to strike out Mr Fiorido’s statement of claim Ms Little relied on an affidavit of Ms Alana Mary Cox which was sworn on 5 June 2007 and filed in the Local Court on 5 June 2007. In her affidavit Ms Cox deposes to the following. On 25 May 2007 she forwarded a letter to Mr Fiorido by ordinary post advising him: that the statement of claim did not plead a cause of action; pursuant to s 12 of the Limitation Act he was statute barred from bringing any actions relating to a breach of contract or based in tort; and that if he did not amend his pleadings within 10 days from 25 May 2007, De Silva Hebron would make an application for judgment or to have his statement of claim struck out.
Mr Fiorido was given a fair opportunity to amend the statement of claim and he declined to do so. He also failed to make an application for an extension of time in which to bring any claims that he believed he had against Ms Little.
In opposition to the application Mr Fiorido filed a number of bundles of documents. Most of the bundles of documents were filed on 3 July 2007. Included in the bundles of documents are correspondence between Mr Fiorido and Ms Little, the complaint made to the Anti-Discrimination Commission, applications for legal aid, the Reasons for Decision of Dr Lowndes SM, the transcripts of the reasons for decision of Mr Trigg SM and Mr Cavanagh SM, the opinion of Mr Hunter, of counsel, and various unsigned statements presumably made by Mr Fiorido. The statements are disjointed, fragmented, incoherent and largely unintelligible. They contain various bizarre accusations and assertions against Ms Little.
On 26 July 2007, the Master gave judgment in favour of Ms Little and against Mr Fiorido. In his Reasons for Decision the Master, among other things, stated the following:
[…]
In the papers filed with the Court [Mr Fiorido] makes a number of allegations against [Ms Little] in addition to those in the statement of claim, however, this application is, of necessity, limited to the allegations made in the statement of claim. Prior to making this application [Ms Little’s] solicitors wrote to [Mr Fiorido], suggesting deficiencies in the statement of claim, advising him that he may be out of time by reason of s 12 of the Limitation Act, and allowing further time to file an amended statement of claim. He has not availed himself of this opportunity.
[…]
It may be inferred from the statement of claim that [Mr Fiorido] alleges that [Ms Little] acted as his solicitor in proceedings in the Local Court, and that by reason of this relationship [Ms Little] had a duty of care to act competently on his behalf. Such a duty may arise in contract or in tort. It may also be inferred that the allegation is that [Ms Little] did not act competently, and was in breach of her duty in failing to present relevant evidence. However, the nature and possible effect of this evidence, and the consequences arising from the failure to present it, are not pleaded. In particular, [Mr Fiorido’s] claim is difficult to understand because the information provided by [Mr Fiorido] suggests that he was successful in his appeals. The allegation relating to the failure to defend [Mr Fiorido] on the original complaint is incomprehensible and embarrassing. The basis for the claim of $5000, and how that sum is comprised, is also not clear. It may be concluded that the plaintiff’s statement of claim is not sufficient to enable [Ms Little] to understand the case that she has to meet at trial.
In the normal course the appropriate order would be to strike out the statement of claim and give the plaintiff leave to file an amended statement of claim. However, [Ms Little] has raised a defence based on s 12 of the Limitation Act. This section provides that an action founded on contract or tort is not maintainable after the expiration of a period of three years from the date on which the cause of action first accrues to the plaintiff. A cause of action usually accrues on breach, in the case of contract, and when damage is suffered, in the case of negligence: Hawkins v Clayton 164 CLR 539 and Doundoulakis v Antony Sdrinis (1989) VR 781.
[Mr Fiorido] pleads in his statement of claim that the claim arose on 28 April 1999 and 31 August 2001. It may have been intended to plead that the claim arose between those dates, but, in any event, the claim is said to have arisen no later than 31 August 2001. If [Mr Fiorido] is mistaken as to this date, the information provided in his documentation, referred to above suggests that the appeals were resolved no later than 13 September 2001. The breach of contract or breach of duty, that is, the failure to call relevant evidence, must have occurred either before the appeals were commenced or when they were heard. The damage claimed must be that arising from the failure to call relevant evidence, and this must also have occurred no later than the date the appeals were resolved. It may be concluded that the cause of action first accrued no later than 13 September 2001, and that this proceeding, which was commenced more than three years from that date, is not maintainable by reason of section 12 of the Limitation Act.
[Rule] 23.03 [of the Supreme Court Rules] provides that the Court may give judgment for [Ms Little] against [Mr Fiorido] if [Ms Little] has a good defence on the merits. [Mr Fiorido’s] claim is, by reason of s 12 of the Limitation Act, clearly unsustainable, and cannot succeed: Wilson v Union Insurance (1992) 112 FLR 166 at 181. In these circumstances, there should be judgment for [Ms Little] against [Mr Fiorido].
The application for leave to appeal
The application for leave to appeal to the Court of Appeal was filed on 16 August 2007. The application for leave to appeal is made under s 53(1) of the Supreme Court Act and in accordance with Pt 2 of O 85 of the Supreme Court Rules. The application is to be determined on the papers.
The application for leave to appeal was originally supported by an affidavit of Mr Fiorido that was filed 16 August 2007. The affidavit was objected to by the solicitors for Ms Little. I found that the affidavit was scandalous and incomprehensible. It did not comply with r 85.03 of the Supreme Court Rules. On 7 September 2007, I ordered that Mr Fiorido’s original affidavit be removed from the Court file and that he file a fresh affidavit within 21 days from 7 September 2007. On that day and again on 8 October 2007, I also extended the time for the solicitors for Ms Little to file an affidavit in reply. However, as matters transpired the solicitors for Ms Little ultimately elected not to file an affidavit in reply. The Court was informed that Ms Little was content for the Court to determine the application for leave to appeal on the basis of the materials filed by Mr Fiorido.
On 24 September 2007 Mr Fiorido filed a fresh affidavit in support of his application for leave to appeal. To the extent that I have found the matters in Mr Fiorido’s affidavit relevant, he deposes as follows:
The Decision of Master Coulehan is scandalous oppressive and irrelevant. The [Master’s] decision is wrong. [Mr Fiorido] never [received] or [recovered] any money from the appeals [to the Magistrates]. […]
On [30 January 2003] Mr G Cavanagh dismiss[ed] the case. […]
Mr Fiorido’s complaint is that Melanie Little, the Anti-Discrimination Commission[’s], Linda Weatherhead, […] and the Department of Local Government and Housing, via their relevant officers, colluded with one another and subsequently agreed contrary to my instructions and wishes to limit my complaint of discrimination based on age and accommodation to a complaint of discrimination based solely on age. [There are] plenty of documents, plenty of photos, plenty of witnesses to prove Mr Fiorido’s flat was unfit for habitation.
[Mr Fiorido’s] complaint is connect[ed] with the letter from the Housing Commission [dated] March 1998. […]
Mr Fiorido[’s] complaint is that Melanie Little failed to take the matter to appeal when I believe she should have. Melanie Little failed without reasonable cause to act upon my instruction[s] to institute and prosecute appeals from the Decision of Mr Trigg SM in Local Court Proceeding No. 20008230, characterising the appeal as otherwise than an appeal de novo, and refusing Mr Fiorido’s application for costs of [that] proceeding. [Ms Little] also failed without reasonable cause to continue to act for me […] and appear upon the hearing of my appeal in Local Court Proceeding No 20213486 before Mr Cavanagh SM.
[…]
The statement allegedly made by Sandra Wanka in June 1997 arguably involved discrimination against the appellant on a prohibited ground viz age in a specified area of activity viz accommodation. Melanie failed to use the documents, failed to use the photos, failed to call the witness[es], failed to use Sandra Wanka’s [record of] interview [dated] 12 February 2002.
Mr Fiorido’s flat was unfit for habitation.
[…]
On 25 September 2002 Melanie Little failed to give Mark Hunter documents including [the record of interview] of Sandra Wanka in connection with Mark Hunter[’s] opinion.
On 3 July 2007 Mr Fiorido delivered 8 bundles of documents to the Supreme Court Registry. Also on 7 September 2007 Mr Fiorido delivered another 15 documents. Mr Fiorido will use all documents to prove that the Housing Commission discriminated against Mr Fiorido in the area of accommodation.
By law nobody can dismiss this claim. […]
Grounds of Appeal
The Master’s decision is wrong.
1.Mr Fiorido never received or recover[ed] any money from the appeals.
2.The magistrate[’s] power is this win or lose the case.
3.Melanie failed to appeal the costs of the appeals.
4.Melanie failed to appeal the decision of Mr Fiorido and Linda Weatherhead dated 23 March 2000 Local Court File No 20008230.
5.Melanie never produce[d] documents to prove, Melanie acting for Mr Fiorido, Melanie never been Registrar, Melanie never been on the record. Melanie acting against my instruction[s].
6.Melanie failed to defend me on the discrimination matter, accommodation, original complaint, age and accommodation.
7.Melanie failed to use the Housing Commission letter dated March 1998. This letter is connected with the original documents in connection with Fiorido flat was unfit for habitation.
8.Melanie failed to call the witnesses John Simondson and Sandra Wanka. Melanie failed to use Sandra Wanka interview date 12.2.2002.
9.Is not limitation time for the criminal.
[…]
Mr Fiorido’s affidavit is difficult to understand. It also fails to comply with r 85.03 of the Supreme Court Rules. Mr Fiorido’s affidavit does not identify the questions involved in the application that was heard by the Master. The proposed grounds of appeal that are set out in Mr Fiorido’s affidavit do not relate to the Reasons for Decision of the Master and the grounds of appeal do not identify any error in the reasoning of the Master. The affidavit completely fails to deal with the limitation of time issue and the affidavit does not contain any justification as to why leave to appeal should be granted. The affidavit also raises allegations that go beyond the pleading in the statement of claim. For example, it is said that Ms Little failed to appeal the decisions of Mr Trigg SM in Local Court proceeding No 20008230.
For the benefit of Mr Fiorido I make the following remarks having considered all of the material that I have referred to above. There appears to be no merit in his allegation that the Out of Turn Committee of the Department discriminated against him because of his age. Mr Fiorido’s application for priority housing was based on his medical condition at the time and was considered by the Out of Turn Committee on the merits of the application. Rightly or wrongly, the Out of Turn Committee determined that Mr Friorido’s application for priority housing did not demonstrate that he was entitled to be granted a priority listing amongst those on the list waiting to be allocated public rental housing.
Mr Fiorido’s complaint which was considered by the various delegates of the Anti-Discrimination Commissioner was a complaint of discrimination based on age in relation to the supply of a particular service namely, public rental housing. It would have made no difference if it was said that the area in which the prohibited conduct occurred was accommodation instead of the supply of a service. This was not a case in which Mr Fiorido was refused accommodation because of his age or because of some other attribute. Neither Ms Little nor anyone else limited his complaint to one based solely on age. Section 19 of the Anti-Discrimination Act provides that a person shall not discriminate against another person on the ground of any of the following attributes: race; sex; sexuality; age; marital status; pregnancy; parenthood; breastfeeding; impairment; trade union or employer association activity; religious belief or activity; political opinion, affiliation or activity; irrelevant medical record; irrelevant criminal record; and association with a person who has, or is believed to have, an attribute referred to in this section. Section 28 of the Anti-Discrimination Act states this Act applies to prohibited conduct in the areas of – education; work; accommodation; goods, services and facilities; clubs; and insurance and superannuation. The delegates of the Anti-Discrimination Commission found that Mr Fiorido had failed to establish a connection between Ms Wanka’s conduct and the decision of the Out of Turn Committee. The fact that Mr Fiorido’s accommodation at the relevant time was uninhabitable was not relevant to the question of whether he was discriminated against because of his age. The Out of Turn Committee determined that Mr Fiorido had other options available to him.
The appeal from the first decision of the delegate of the Anti-Discrimination Commissioner, which was heard by Dr Lowndes, did not afford Mr Fiorido or his legal representatives an opportunity to tender any evidence about the standard of Mr Fiorido’s accommodation in the Local Court as Dr Lowndes determined that the matter should be referred back to be investigated by the delegate of the Anti-Discrimination Commissioner. Likewise, no opportunity was afforded to Mr Fiorido or his legal representatives to tender any evidence about the standard of Mr Fiorido’s current accommodation in the appeal that was heard by Mr Trigg SM. On 15 May 2001 Mr Trigg SM determined that an appeal under s 106 of the Anti-Discrimination Act against a decision of a delegate to dismiss a complaint under s 76(1)(a) of that Act was an appeal in the nature of a rehearing on the written material considered by the Anti-Discrimination Commission together with such additional evidence as the Magistrate who ultimately hears the appeal thinks fit to receive. Mr Trigg SM also ordered that Mr Fiorido’s complaint be referred back to the delegate of the Anti-Discrimination Commissioner for further investigation and consideration.
The fact that Ms Little was retained by Mr Fiorido to prosecute an appeal in the Local Court against a decision of a delegate of the Anti-Discrimination Commissioner does not mean that she was either retained or obliged to conduct an appeal in the Supreme Court against the decisions made by Mr Trigg SM. If Ms Little was not prepared to be retained to conduct an appeal from the decisions of Mr Trigg SM (and I am not making a finding that I accept Mr Fiorido’s evidence in this regard), and Mr Fiorido wished to appeal then Mr Fiorido was free to retain another legal practitioner to conduct such an appeal.
Ms Little informed Mr Fiorido that it was her opinion that there were no valid grounds on which to appeal the third decision of the delegate of the Anti-Discrimination Commissioner. Her opinion was supported by the opinion of independent counsel. In the circumstances it was perfectly proper for her to decline to act for Mr Fiorido in the appeal that was heard by Mr Cavanagh SM. Ms Little wrote to Mr Fiorido and stated, “I would ask that you seriously consider ending your action against the [Anti-Discrimination Commissioner] and the Housing Commission as it is my opinion that it will only cause further distress to you and cost extra money if you decide to engage a barrister.” No complaint can be made about her conduct in this regard.

Ms Little appears to have conducted the matters in which she was retained by Mr Fiorido in a competent and fair manner.
Finally, I have perused the Reasons for Decision of the Master. I find no error in the Reasons for Decision of the Master. The statement of claim does not plead a cause of action. In order to plead a cause of action it is necessary to plead the whole set of facts which give rise to an enforceable claim. The pleading in the statement of claim is insufficient to enable anyone to understand the case that Ms Little has to meet at trial. Further, any cause of action in either tort or contract based on the failure to tender relevant evidence during the first two appeals to the Local Court is time barred and Mr Fiorido did not make an application for an extension of time when the application was heard by the Master nor did he tender any evidence to establish that he continued to suffer damages within the period of three years prior to the statement of claim being filed in the Local Court. Further, if Ms Little was appearing as counsel she would have the benefit of the immunity from suit available to all advocates. Likewise any cause of action based on a failure by Ms Little, during her conduct of the original complaint to the Anti-Discrimination Commissioner, to rely on accommodation as the area in which the prohibited conduct occurred, instead of goods, services and facilities, is also statute barred.
Orders
In the circumstances, I make the following orders:
1.The application for leave to appeal is dismissed.
2.Mr Fiorido is to pay Ms Little’s costs of the application for leave to appeal.

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