Forest v Smith and Anor and Forest v Tranter Pty Ltd - [2008] FMCA 1697

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FOREST v SMITH & ANOR and
FOREST v TRANTER PTY LTD

[2008] FMCA 1697

HUMAN RIGHTS – Application to dismiss or adjourn with conditions.

Disability Discrimination Act 1992, s.3
Federal Magistrates Court Rules 2001, rr.1.03, 4.02

Applicant:

CHE FOREST

First Respondent:

BARRY SMITH

Second Respondent:

TRANTER PTY LTD T/A KURANDA HOTEL MOTEL

File Number:

BRG 466 of 2004

Applicant:

CHE FOREST

First Respondent:

TRANTER PTY LTD T/A KURANDA HOTEL MOTEL

File Number:

BRG 571 of 2007

Judgment of:

Coates FM

Hearing date:

2 December 2008

Date of Last Submission:

2 December 2008

Delivered at:

Cairns

Delivered on:

18 December 2008

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Farrellys Solicitors

ORDERS

The trial date set for 16 December 2008 be vacated
That paragraphs 1,5,6 and 7 of the Orders made on 28 August 2008 be dismissed.
By 30 January 2009 (and pursuant to rule 4.02 the applicant file and serve a further amended application in compliance with the Rules setting out (in numbered paragraphs):
(i)The orders sought;
(ii)Details of each and every section (and subsection) of the Disability Discrimination Act which is to be relied upon; and
(iii)Particularizing the facts alleged to support the necessary elements of each section or sub-section.
That the applicant file and serve any further affidavits of himself or other witnesses will rely on by 30 January 2009.
That the applicant file and serve a list setting out each affidavit (and the date of filing of same) that he intends to rely upon by 30 January 2009.
That the respondent file and serve a response and affidavits in support by 15 February 2009.
The matter be adjourned for mention to a date to be fixed in March 2009.
Costs be reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CAIRNS

BRG 466 of 2004

CHE FOREST

Applicant

And

BARRY SMITH

First Respondent

TRANTER PTY LTD T/A KURANDA HOTEL MOTEL

Second Respondent

BRG 571 of 2007

CHE FOREST

Applicant

And

TRANTER PTY LTD T/A KURANDA HOTEL MOTEL

First Respondent

REASONS FOR JUDGMENT

On 28 August 2008 I gave trial directions so that this matter could be heard on 16 December 2008.
The trial directions included orders for the applicant to file and serve an amended application and supporting affidavits by 24 October 2008.
As well, the directions included an order for the advice to each party of witnesses required, five days before the hearing.
The respondents sought an urgent mention which I set for 2 December 2008.
The respondents asked for the application to be dismissed or in the alternative, a vacation of the trial date, new directions for the applicant to file and serve an amended application with supporting affidavits and a limit on his affidavit material.
The respondents submitted that the applicant, after the directions given on 28 August, filed a document titled Application on 27 October 2008. It was substantially different from the document filed on 10 June 2005, titled Amended Further Details of Applicant’s Claim Provided Pursuant to Order 1 of Court Orders of 18 May 2005.
The new document purported to withdraw previous orders sought for “unlawful discrimination, compensation, apology”.
It appeared the applicant wanted orders: “ that I am a person with a disability, a declaration that my dogs are assistance animals, that the actions of the respondent were unreasonable, that the actions of the respondent continue to be unreasonable, to lift what is a life ban from entering the respondent’s premises, any other order the Court deems fit”.
By way of summary, which is not a finding about either case, the applicant’s case is to the effect that he is a person who suffers from psychological or psychiatric disabilities for which his dog or dogs give him assistance and a ban from entering the Kuranda Hotel in 2005 was direct or indirect discrimination under the Disability Discrimination Act 1992.
The respondents submits that the amended application does not comply with rule 4.02 of the Federal Magistrate’s Court Rules 2001, in that the content of the application “must precisely and briefly state the orders sought and (if the application is for a general federal law proceeding) the basis on which the orders are sought”.
The respondents state the application does not disclose any reasonable cause of action.
The respondents say in the past they have sought and gained orders for the particularisation of the claims.
Further, the respondents say that the amended application is so changed that it is unclear about the jurisdiction of the Federal Magistrates Court to hear and determine a complaint filed which is substantially different from the original complaint filed.
The respondent says the amendment filed on 27 October is more than an addition, it is a completely new application but one which discloses no cause of action.
Consequently, the respondent says it can file no response.
The applicant said he is not making a new application, he is adding to his original application. He says he cannot express himself. He also says it is the respondent who has not complied with directions, but he then said he has new material to file, especially to comply with the rules.
While the respondent has not complied, I accept that given the wording used by the applicant, the respondent took the plain meaning of the words to mean that he was not persisting with his original application, but was presenting an application for new orders and in such a form that there was no case to answer.
The applicant in submission said he was not withdrawing what he stated previously, he had used words he understood were correct.
It appears the applicant has difficulty in understanding the effect of some of the written words he used, although I do not want to give the impression that he misunderstands all language. I am satisfied after hearing from him in several mentions that he does understand what he wants and, usually, what he is stating. I was satisfied that he had not changed his application to a new application.
The applicant complains that he has had no response from the respondent’s solicitors in relation to witnesses, particularly his doctors but that may go to experts or witnesses in general, to give evidence by telephone. He believes the respondent’s are making the case difficult for him.
I stated that if he receives no reply from the respondent’s solicitors, then he must bring a timely application to Court in relation to receiving evidence by telephone. As to the making of the case difficult for him, the respondent’s solicitor says they have given as much assistance as possible but they are under no obligation to assist his case.
The respondent’s solicitors have a duty to the Court, but they have no duty to assist the applicant to run a case. They represent their client on instructions.
The respondents ask that the application be dismissed or that new directions be issued.
In relation to the application for dismissal, I should consider the objects of the Disability Discrimination Act 1992. One object, at s.3 is to: “eliminate as far as possible, discrimination against persons on the ground of disability in the areas of: …work, accommodation, education, access to premises, clubs and sport…”
It is essential that the Court recognises that people claiming such discrimination, where they are self-represented, be extended procedural fairness in order to get their case together. It would be injurious to justice not to extend to the applicant here procedural fairness, especially when he states he may have the opportunity to get legal assistance, which he will determine over the Christmas break.
Having said that however, there must be an end to litigation and to costs for the respondents. Leaving such a matter as this uncontrolled will bring the system into disrepute because a respondent is forced to fund a defence where the goal posts appear to or do keep moving.
Procedural fairness extends to the respondents as well as to the applicant – the respondents must know the case to meet and be given opportunity to answer.
While in a matter such as this the applicable rules of evidence will be followed and must be followed in order to achieve fair trial for the parties, the objects of the Court’s rules, at r.1.03 state:
(1) The object of these Rules is to assist the just, efficient and economical resolution of proceedings.
(2) In accordance with the objects of the Act, the Rules aim to help the Federal Magistrates Court:
·to operate as informally as possible
·to use streamlined processes
·to encourage the use of appropriate dispute resolution procedures.
(3) The Court will apply the Rules in accordance with their objects.
(4) To assist the Court, the parties must:
·avoid undue delay, expense and technicality
·consider options for primary dispute resolution as early as possible.
(5) If appropriate, the Court will help to implement primary dispute resolution
As far as I can I am implementing that rule.
Applying those considerations, I am not going to dismiss the application.
I intend making the alternative orders sought by the respondents, but I am not going to order security for costs. It is highly unlikely that the applicant can obtain such security. I will also give him until the end of January 2009 to get his case together. As the matter has been on foot since 2005, except for an application for telephone evidence or a mention to set a trial date, when the matter returns it will be for trial. Any applications for non-compliance can be dealt with then.
Without wanting to confuse the applicant, he must amend his application and state in plain language what he is seeking, referring to the legislation, complying with r.4.02 stating the orders sought, details of the sections of the Disability Discrimination Act 1992 he is relying on and giving particulars of the facts necessary to support his case. I am aware that he has stated that he thought he was doing that.
The respondents also raised the issue of witnesses.
The respondents want witness “affidavits” struck out for non-compliance with the rules or as an abuse of process or that they were simply irrelevant.
I raised with the applicant that some of the material appeared to give hearsay statements and Ms Drummond for the respondents submitted that they were also irrelevant.
I will not consider striking out the affidavits by the applicant at this stage, although the applicant needs to be aware that if the material does not comply with the rules of admissibility, then he may well face a preliminary issue at trial.
The applicant must file and serve original affidavits sworn by his witnesses. He cannot proceed by attaching to his affidavits copies of what he says are witness statements. He must make arrangements to have the witnesses available if required by the respondents or make an application for them to give telephone evidence. I am not going to limit the number of his affidavits as yet. There are not so many that the respondents cannot deal with them.
The respondents are not delaying the matter. The respondents are meeting the case as best they can in the circumstances they find the applicant, but to avoid further applications, decisions on preliminary matters should now be dealt with at trial, otherwise there will be further adjournments and delay while the parties repair the case.
The case has been on foot for three years. It is the applicant’s case. He must prosecute it and the respondent should not be put to further delay and expense.
While the respondents wanted new relevant documents filed within seven days of orders, the Christmas break will make it difficult for the applicant to comply and logistically, the matter will now probably not be heard before at least March 2009. In that case I will extend to the applicant as much time as I can, but the applicant should understand that the respondent, as does the Court, expects the trial to now run efficiently.
I will adjourn for one further mention in March 2009, to set a trial date.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Coates FM

Acting Associate: Debra Horold

Date: 18 December 2008