Forest v City of Sydney
[2011] FMCA 480
•16 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FOREST v CITY OF SYDNEY | [2011] FMCA 480 |
| HUMAN RIGHTS – Disability discrimination – no reasonable prospects of the matter being resolved by conciliation – complaint terminated – seeking time for commencement of application to be extended – explanation for delay – any prejudice to the respondent – whether the applicant had an arguable case. |
| Australian Human Rights Commission Act 1986 (Cth), s.46PO Disability Discrimination Act 1992 (Cth), ss.5, 6, 8, 9, 10, 23 and 24 Human Rights and Equal Opportunity Commission Act 1986 (Cth) Local Government Act 1993 (NSW) Equal Opportunity Act 1984 (WA) |
| Ferrus v Qantas Airways Limited [2006] FCA 812; (2006) 155 IR 88 Forest v Queensland Health (2007)161 FCR 152; [2007] FCA 936 IW v The City of Perth [1997] HCA 30; (1997)191 CLR 1 Lucic v Nolan (1982) 45 ALR 411 Phillips v Australian Girls Choir Pty Ltd [2001] FMCA 109 Rainsford v State of Victoria [2007] FCA 1059; (2007) 167 FCR 1 White Industries Australia Limited & Anor v Federal Commissioner of Taxation (2007) 160 FCR 298; [2007] FCA 511 Zoltaszek v Downer EDI Engineering Proprietary Limited [2010] FMCA 100 |
| Applicant: | CHE FOREST |
| Respondent: | CITY OF SYDNEY |
| File Number: | BRG 11 of 2011 |
| Judgment of: | Burnett FM |
| Hearing date: | 16 May 2011 |
| Date of Last Submission: | 16 May 2011 |
| Delivered at: | Brisbane |
| Delivered on: | 16 May 2011 |
REPRESENTATION
| Solicitors for the Applicant: | Wettenhall Silva Solicitors |
| Solicitors for the Respondent: | Bartier Perry |
ORDERS
That the Applicant’s time for commencing Application be extended to 6 January 2011.
That the Applicant file and deliver a Statement of Claim on or before 4.00pm on 24 June 2011.
That the Respondent file and deliver a Defence on or before 4.00pm on 4 August 2011.
That the matter be listed for mention on 5 August 2011 commencing at 10.00am.
That costs be reserved.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 11 of 2011
| CHE FOREST |
Applicant
And
| CITY OF SYDNEY |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
On 6 January 2011, the applicant made application for relief in respect of alleged unlawful discrimination. The discrimination allegedly arose in contravention of the Disability Discrimination Act1992 (Cth).
The applicant’s complaints were initially addressed pursuant to the Human Rights and Equal Opportunity Commission Act 1986 (Cth). Ultimately, the President decided to terminate the complaint because she was satisfied that there were no reasonable prospects of the matter being resolved by conciliation.
The President gave the applicant notice of her decision via a letter dated 1 November 2010. Relevantly, s.46PO of the Australian Human Rights Commission Act1986 (Cth) provides:
“(1) If:
(a) a complaint has been terminated by the President under section 46PE or 46PH; and
(b) the President has given a notice to any person under subsection 46PH(2) in relation to the termination;
any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Magistrates Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.
(2) The application must be made within 60 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows.”
The applicant made application by application filed 6 January 2011. That date is approximately 66 days after the date of issue of the notice. He now requires time for the commencement of the application to be extended to bring his application.
Both the applicant and the respondents agree the principles for determining such an application are now relevantly well-settled. It was agreed that in Ferrus v Qantas Airways Limited[1] Collier J referred with approval to seven principles which had been identified by McInnis FM in Phillips v Australian Girls Choir Pty Ltd.[2]Quoting those seven principles she then stated:
[1] [2006] FCA 812
[2] [2001] FMCA 109
“The set of principles were summarised, in my view accurately, by Phipps FM in Drew & Bates as three matters.
(1) Explanation for delay.
(2) Any prejudice to the respondent
(3) Whether the applicant had an arguable case.”
Dealing first with the explanation for delay. The applicant filed the application himself he having earlier contacted his solicitor, Mr Silva on 13 December 2010. It appears he wasn’t able to obtain the benefit of his assistance as solicitor because Mr Silva was about to commence a period of extended annual leave.
He received some advice from Mr Silva and proceeded then to progress with the preparation of his application. Having prepared his application within the time, he then sought to file it at the court. He experienced difficulty in filing his application by facsimile due to advice he says he received from a member of the court registry. He also had difficulty because he sought to obtain a waiver of the requisite filing fee. Difficulties occasioned with that further exacerbated his problems.
Ultimately, he was up against the statutory limitation when he sought to file the application at the local registry of a Federal Court, that being the Federal Magistrates Court in Cairns. However, that registry would not accept his filing of process. Of course, at this time he was unable to obtain the assistance of his solicitor as this period fell during the period of the Christmas-New Year break.
He ultimately determined to drive from Kuranda, which is approximately 1400 kilometres from Brisbane to Brisbane in order to file his application at the Brisbane registry of the Federal Magistrates Court. However, in the course from driving from Kuranda to Brisbane he was caught in the floods in Central Queensland which are a matter of significant notoriety at least to people living in Queensland. In the result he was unable to file his application within time and the application was filed, as I have earlier noted, on 6 January or six days late.
In the response to that matter made by the respondent, it was contended that principally that there was no explanation given by the applicant in respect of any steps taken by him to progress his proceedings during November 2010 or until that time when he contacted his solicitor.
So much is evident from the material.
However, notwithstanding that matter, some matters I think are apparent. I should say the applicant is a person who does appear to have a psychiatric disability. He says this manifests by his inability to make decisions and take appropriate action in a timely way. This fact may provide some explanation for his delay in contacting his solicitor.
So much would be apparent, I think, in any event, from a review of the decision of Forest v Queensland Health (2007) 161 FCR 152 at [155] where the applicant’s maladies are the subject of discussion and findings.It seems, having regard to that matter and the expectation that having first contacted a solicitor approximately two business weeks before the limitation, should have afforded a solicitor a reasonable opportunity to attend to the filing of the application would provide a reasonable explanation for his delay subject to the intervening events.
It was further contended on the part of the applicant, that irrespective of the applicant’s complaint that he has a psychiatric disability that impacts upon the manner in which he makes decisions in appropriate and timely way, no evidence has been filed to support that claim and so it is submitted I should disregard the applicant’s assertions in that respect.
In the ordinary course the respondent’s submissions, at least on the point of evidence, are correct. There is no direct evidence. I only have, as I have noted, the observations of the court in the decision of Forest v Queensland Health (supra). But notwithstanding that matter, my views are somewhat fortified by the conduct of the applicant.
His economically irrational behaviour associated with driving from Cairns to Brisbane to file an application in respect of which he had not received a filing fee waiver would lend weight to the conclusion that he may be behaviourally challenged. Particularly when one has regard to the fact that the filing fee for the application was $54.00.
Overall, I think, the applicant’s explanation is reasonable and satisfactory and on that basis he at least satisfies the first of the matters to be satisfied.
Second is the question of prejudice. The applicant contends that no prejudice can be demonstrated for the late filing of the application, and that is accepted by both parties, although, as the respondent notes, the mere absence of prejudice of itself is not enough to justify the ground of extension of time citing Lucic v Nolan (1982) 45 ALR 411 at [416]. Of course, in this instance, the absence of prejudice itself will not justify an extension.
That leads, perhaps, to the most significant point in the application and that is whether or not the applicant has an arguable case. The applicant notes that in assessing whether the applicant has an arguable case the court should take into account that proceedings are at a very early stage and the applicant has only filed his application and affidavits in support of the applicant for an extension of time. In support of that contention the applicant cited the decision of Barnes FM in Zoltaszek v Downer EDI Engineering Proprietary Limited(No.2) [2010] FMCA 938. There is, I think, no serious challenge to what her Honour said on that occasion.
The application, in this instance, was accompanied by the notice of termination which included as an attachment a statement by the applicant dated 30 November. That statement identifies the background against which the court is really requested to form an opinion as to whether or not the applicant’s case is at least arguable.
In broad terms, the relevant facts appear to be that the applicant had obtained a busking permit in and around January 2009 to busk in the areas of Pitt Street Mall and Circular Quay Sydney. In his application he stated that his busking would include five dogs. It would seem that the busking act was to include some sort of animal performance.
He states that he had been at the Pitt Street Mall a couple of days when Sydney City Rangers started to frequently query his activity and request him to show his permit. He says that he was approached by rangers more often than he observed other buskers being approached and formed the view that he was being targeted.
Furthermore, he noted that rangers did not leave his vicinity after he had shown them his permit and in his estimate they tried to make an issue about his presence. He believes that he was receiving greater attention from rangers than other buskers whom he saw in the mall.
He noted that the rangers referred to him as having a bad attitude but he informed the rangers that this was in fact part of his disability.
He says a consequence of the continuous adverse attention adversely affected his personality.
The applicant says he contacted the person in charge of busking employed by the respondent and explained the problems he was experiencing due to what he believed was targeting and harassment. He says he explained to them that he had a disability and that the treatment he was receiving was adversely affecting his disability.
He says he sought their assistance in contacting rangers asking them not to harass him.
The person to whom he spoke, he said, offered to contact the Disability Assistance Officer, who apparently wasn’t there on that occasion.
But despite a message being left, he was never contacted by that person.The applicant alleges that differential attitude was not only exhibited toward him but also in relation to banners that he had. He provided an illustration, for instance, of he having to remove his banner but the gentleman operating a shoe shine operation nearby was not so required.
He says that when he was requested to remove his banners he explained that he had a disability and his dog was an assistance dog and that the other dogs that were there were also assistance dogs and they were owned by a charity for whom he was busking. He stated he was displaying his assistance dog ID card in order to verify his client.
The upshot was that he was told his busking permit was cancelled.
He says that he was told by the ranger who spoke with him on this occasion. The ranger told the applicant he was of the view that the applicant’s use or claim of disability was a forgery and he was using his claim of disability to defraud the public. He was accused of being a fake and accused of having no authority to represent the organisation for whom he was busking. He was told that if he did not leave his dogs would be confiscated.
Subsequently, police were called to assist the City Council Rangers and a complaint of some form was made to police that the applicant was engaged in some act of defrauding the public when requesting or seeking funds. The applicant complains that when a friend of his, who was another busker, spoke in support, a ranger employed by the respondent stated:
“As far as your friend’s disability is concerned your friend is a bogan and his so called charity is bogus.”
He was issued a show cause notice and told by police if he was back within the area within 24 hours he would be removed. The applicant complains that he then moved on. He contacted the respondent’s disability equity officer. He left at least 20 messages but was never contacted.
Subsequently his permit was cancelled and he received a letter confirming this. The applicant concluded, by reason of these events, that his permit was cancelled because of his disability and denies the validity of the stated grounds for cancelling his busking permit which I said to have been now provided by the Sydney City Council.
The applicant complains that these events, in turn, have caused him an exacerbation of his depressive condition.
These matters led the applicant to make his complaint to the Australian Human Rights Commission and in turn now to this court with his complaint at the Commission not having been resolved.
In his application the applicant identifies his complaint as having its genesis in contraventions of various sections of the Disability Discrimination Act. In particular he relies upon s.5, s.6, s.8, s.9, s.10, s.23 and s.24, although I note his submissions address only s.24.
Section 24 of the Disability Discrimination Act renders it:
“Unlawful for a person to discriminate against another person on the ground of the other person’s disability in the terms or conditions on which the person is provided with goods or services or the manner in which the person who is provided with the goods or service.”
For the applicant’s part he contends that the issues regarding the cancellation of his busking permit fall within the ambit of s.24.
He raises issues relating to his treatment or that being in particular the harassment by employees of the respondent.
He alleges he was publicly denigrated on the basis of his disability and accused of being a fake and a fraud. He says that he had threats made to have his dogs removed, all of which he contends were assistance animals. He alleges that he was treated in a differential manner to other buskers and that these matters occurred despite the fact that he made known to the relevant officers the nature of his disability and the effect of that disability upon him.
Of course these matters have not been particularised beyond the statement which is attached to the application and so they are, at this stage, advanced in very general terms. In any event, the applicant contends the facts, as stated to date, are sufficient to demonstrate an arguable case.
For the respondent’s part, the respondent says that the application is one that fails at the threshold on three grounds. First, there is, on the respondent’s contention, no service for the purpose of section 24 but even if there were a service the complaint fails for want of causation. Finally it says there was no refusal of a service.
In respect of the issue of whether or not there was a service, while the respondent notes that it is difficult to apprehend with precision what the applicant’s claim is, it proceeds on the premise that the claim could be framed with the service being of:
a)the provision of the busking permit itself;
b)the activity of the council rangers; or
c)the provision of a disability access officer.
The respondent’s submission proceed to observe that the activities complained are those provided for under the Local Government Act and seeks, in support of their position, to rely extensively upon the High Court decision in IW v The City of Perth[3] where the court there was considering the meaning of services so far as it related to the Equal Opportunity Act 1984 (WA) in a very similar context. That is, in the context of a Council service which concerned in that particular case the application under The Town Planning Scheme for certain permits.
[3] [1997] HCA 30; 191 CLR 1; (1997) 191 CLR 1
The court in IW (supra) discussed the matter of service and noted, in passing, that:
“When a council is called on as a deliberative body who exercises statutory power or to exercise a statutory duty it may be acting directly as an arm of government rather than a provider of services and its actions could be considered outside the scope of the Act.”
It stated further:
“When a council is required to in a quasi judicial role in exercising its statutory power or duty it may be inappropriate to characterise the process of a provision of a service for the purpose of the Act even in cases where the product of the process is the provision of a benefit to an individual.”
The respondent sought some assistance also from the decision of the Federal Court in Rainsford v State of Victoria.[4] That was an application concerning whether or not services fell within the ambit of the Disability Discrimination Act in the context of services provided in the scope of the Corrective Services in relation to prison activities.
[4] [2007] FCA 1059
The cases themselves are each distinguishable from the present case on their respective facts but what they highlight to me, at least in this instance, is the arguments overall fall to be determined on fine points, often only able to be resolved following a close examination of the evidence and findings of fact.
At this early stage, it may be premature to deny the applicant a right to at least place before the court, either by way of pleading or affidavit, a document which permits him to explain the facts upon which he would ask the court to make a finding in order to determine whether, indeed, there was a service.
In the present context I am particularly mindful of the observations of the Federal Court in White Industries Australia Limited v Commissioner of Taxation[5] where in considering s.17A of this Court’s Act, which deals with summary judgment for a party, on the basis that the other party has no reasonable prospect of successfully, prosecuting a proceeding, the court made the observation, following a line of authority arising in the United Kingdom, that the expressions “no real prospect of succeeding” and “no real prospect of successfully defending” require attention to be given to real as opposed to fanciful or merely arguable prospects. In considering a threshold point for dismissal I ought be guided by those principles.
[5] (2007) 160 FCR 298
It seems to me that when one has regard to the question of whether or not there is indeed an arguable case, one ought to at least allow the applicant to place before the court that material which would enable it to determine whether it meets, as a minimum, the requirements are of s.17A which would, of itself, entitle a respondent to have the application dismissed.
From that, it follows, in this instance I am not presently satisfied in relation to that point that the respondent can demonstrate that there is no real prospect of the applicant succeeding. Perhaps, in fairness to the respondent, I should note that the applicant himself has not placed enough material before the court and to that end it might be that the application could be seen to be premature except, of course, the respondent seeks to have the applicant’s claim dismissed. But in any event, that matter, I think, can be resolved by the delivery of a pleading and material and the application can be re-enlivened in that form later. For present purposes there is, I think, enough there to put in issue the matter of a “service”.
Likewise, concerning the second point, which is the causation point the contention made by the respondent is that the court needs to consider the connection between the first reason stated, which is the anti-social behaviour, and the aggressive behaviour towards city rangers.
The respondent claims that even if one accepts that the claim can be characterised as one where services are provided and the conduct falls within the definitions of paragraph [24], there are difficulties on the basis of causation.
The respondent contends that the termination notice, which was attached to the application and which attaches a letter from the City of Sydney, sets out the reasons why the busking permit was cancelled and those reasons are identified as anti-social behaviour, displaying of advertising material and soliciting funds.
However, as the applicant, I think quite correctly says, one needs to really consider whether those reasons are indeed the real reasons for the respondent’s conduct, bearing in mind that given the applicant maintains he informed the respondent’s officers of the likely effect of his being harassed, as he alleges, then the respondent’s officers, by inciting or by continuing with their conduct, incited the response, knowing that he had what could be described as a hair-trigger personality.
Of course, these are all matters of conjecture but they are clearly factual matters which can only, arguably, be resolved after evidence or from a pleading. Of course, if one accepts the applicant’s case at its highest, then one could not say, that at least on the causation point, there was no real prospect of succeeding.
So it follows that I am of the view that presently there is insufficient evidence to demonstrate there is no arguable case and in all of the circumstance it is appropriate that the applicant have leave to proceed. Once pleadings close or if appropriate after the applicant’s affidavits are filed, the respondent may make further application.
My orders today will simply be that the applicant’s time for making application be extended to 6 January 2011.
That the Applicant file and deliver a Statement of Claim on or before 4.00pm on 24 June 2011.
That the Respondent file and deliver a Defence on or before 4.00pm on 4 August 2011.
That the matter be listed for mention on 5 August 2011 commencing at 10.00am.
That costs be reserved.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Burnett FM
Date: 13 July 2011
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