Forest v Virgin Blue Airlines Pty Ltd

[2007] FMCA 504

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FOREST v VIRGIN BLUE AIRLINES PTY LTD [2007] FMCA 504

PRACTICE AND PROCEDURE – HUMAN RIGHTS – Federal Magistrates Court Rules – Part 12 – Pro bono scheme – difficulty in pleading a case.

Federal Magistrates Court Rules 2001

Applicant: CHE FOREST

Respondent: VIRGIN BLUE AIRLINES PTY LTD

File numbers: BRG780 of 2006 and BRG865 of 2006

Judgment of: Coates FM

Hearing date: 27 March 2007

Date of last submission: 27 March 2007

Delivered at: Cairns

Delivered on: 27 March 2007

REPRESENTATION

Applicant: The Applicant appeared In Person

Counsel for the Respondent: Ms S Holthusen

Solicitors for the Respondent: Clayton Utz Lawyers

ORDERS

1. That the applications be adjourned to a date to be fixed at the Federal Magistrates Court of Australia at Cairns.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CAIRNS

BRG780 of 2006 and BRG865 of 2006

CHE FOREST

Applicant

And

VIRGIN BLUE AIRLINES PTY LTD

Respondent

REASONS FOR JUDGMENT

1. In this matter brought by Mr Che Forest against Virgin Blue Airlines Proprietary Limited the applicant, Mr Forest, claims that acts of the respondent amount to unlawful discrimination. There have been two appearances before me now and the reason for the second mention and appearance was because the respondent Virgin Blue has told the Court that it does not understand the case against it.

2. Last time we appeared in Court I looked at the documents and the application affidavit of Mr Forest and I also concluded at that stage that, on what was supplied, I could not understand what the case was about, consequently I accepted that the respondent did not understand what the case was about. I made certain orders on that day, basically to the effect that Mr Forest file further material to fully inform the respondent of what his case was and to give particulars of what his case was.

3. The matter came back before me today because Virgin Blue, the respondent, says it does not understand still the case against it.  Virgin Blue has put before me an affidavit of correspondence.  I have briefly looked through that but I am not going to make a decision today on whether Mr Forest has complied and I should say he believes, he tells the Court, that he has complied with my direction and he says nothing else has occurred because he says Virgin Blue wrote to him and said they do not think he has complied and I take it from that that he says he cannot go any further at this stage.

4. I am particularly concerned about the matter because of an affidavit which Mr Forest has supplied.  He supplied it because at the last hearing I said I do not know and did not understand his position regarding his medical condition, because basically I think this case is about his need for an assistance dog, or assistance dogs.  I did not understand why and nothing was put before me and at that stage Mr Forest said he was not going to tell the Court.  But in fact at this appearance he does put before me material in affidavit form of a Dr Paul John Trott of 130 Abbott Street, Cairns, a consultant psychiatrist.

5. That affidavit was sworn on 5 July 2005 and it was sworn before a Jacqueline Anne Conquist, a solicitor.  I should say it is a copy.  It is not the original but I do not think there is any issue in that.  I think that we accept that it is a true affidavit.  What Dr Trott says is, and he says it by way of attaching a letter in the form of "To Whom It May Concern", that is dated 4 July 2005 that:

   This letter has been commissioned at the request of Mr Forest with regard to his capacity to properly conduct legal proceedings on his own behalf as opposed to there being the need for a litigation guardian to be appointed.

6. Now, I should say I do not know why the issue of a litigation guardian arose at that stage.  I assume because there was some proceedings on foot.  I will say that it crossed my mind whether Mr Forest does need a litigation guardian.  A litigation guardian, of course, is a person to whom a person who is not in a position to conduct litigation can rely on to conduct that litigation on their behalf.  Dr Trott continues that:

   Mr Forest is a 49 year old man who attended the clinic on 8 February 2005 where a psychiatric evaluation was conducted including a review of his present situation and level of function as well as his past medical and psychiatric histories, family history, personal history and a mental state examination.  He presented in the company of his two dogs, Buddy and Knuckles.

7. That is important because I think this case is all about whether those two dogs are, properly under the laws which exist, to be considered assistance dogs.  No decision has been made on that as yet, nor can a decision be made on that from the Court perspective because the case has not run and I should say because this Court is awaiting guidance from a case which Mr Forest has run in the Federal Court and which I understand, but I could be incorrect, has completed and we are waiting for a judgment.  But there may be other issues to run there.  I am unaware of that but I know I took a decision not to run this case until this Court has guidance from the Court above.

8. I will continue with Dr Trott's correspondence because it is important.  Dr Trott says:

   I have previously indicated in my report to Ms Jacqui Conquist,

   and that is a solicitor who took this affidavit as I stated earlier.  He had a report to Ms Conquist on 25 February 2005 that:

   It was his clinical opinion that Mr Forest had previously suffered from a chronic depressive illness, dysthymic disorder, as defined in the DSMV Fourth Edition, during the 1990's and that further he has had a previous substance use disorder, poly drug abuse as defined in DSM4, though this condition had appeared to be in remission according to Mr Forest's self report.

9. Additionally, it was his clinical opinion that Mr Forest had a personality disorder of a mixed type as defined in DSM4 with an array of anti social, narcissistic and borderline personality traits.  With respect to the issue of Mr Forest self-representing in the legal proceedings, Dr Trott did not feel that he had difficulty in managing various aspects of his life pertaining to understanding his basic rights and that he was able to make sound judgments.

10. He said he was able to weigh and determine the risks and benefits, reason and make reasonable decisions. Although it had been indicated that Mr Forest had a personality disorder of the mixed type and therefore a, what I think Dr Trott is saying, a mental disorder, it was his clinical opinion that that in itself was not sufficient for him to be found incompetent.  Historically Mr Forest had demonstrated reasonable capability in managing his estate and properties, as well as entering various contracts, legal or otherwise.

11. Dr Trott has indicated that Mr Forest's personality type has contributed to some difficulties in his interpersonal, social and occupational arenas- with him having features of a disordered self and life pattern, of determining a clear sense of identity, goals and values, as well as being somewhat impulsive in his actions and decision making.  There had also been an associated failure and effective instability especially in irritability and anxiety.

12. He had been further challenged by a deeper sensitivity to criticism and rejection with a tendency to perceive injustice against him and to feel “entitled”, as well as having difficulty in appreciating the feelings of others and effectively modulating those of his own.  Dr Trott says:

    However, despite these problems he was not cognitively challenged or psychotic, hence his capacity to self determine.

13. He said additionally Mr Forest had been able to make a reasonable argument pertaining to his being disabled psychiatrically as through symptoms of social anxiety and thus requiring the assistance of a trained dog, including his developing a psychiatric assistance dog's program that is called A.W.A.R.E. Dogs, Assistance Wellbeing Ability Recovering Empowerment, which is what the AWARE Dogs tag stands for.  Then Dr Trott consultant psychiatrist signs off on.

14. Now, on all of that, what was not really answered to my satisfaction is whether Mr Forest has an understanding to the extent that he is capable of putting down in writing those issues which he wants the Court to determine.  I am not convinced, even on reading that, that Mr Forest has that ability, despite the fact that I am satisfied that Mr Forest has an understanding of what he says are his basic rights.

15. Now by saying that, I accept that mental disorders are health issues and even from the fact that Mr Forest has seen a psychiatrist, it means that he is attempting to deal with health issues by seeing appropriate people.  I do not know the state of any medical treatment that Mr Forest is seeking, but at this stage the Court is aware that he has certainly sought assistance from qualified health professionals and to my knowledge health issues, and mental health issues as Dr Trott refers to, are issues which in many instances can be treated.

16. Having said that though, I go back to what I just stated.  I am not sure or certain that he is in a position to at least properly satisfy the Court, or the respondent, that the issues which he feels aggrieved about can be properly put into a form which the respondent understands and which the Court understands.  Now I made quite specific orders on the last occasion wanting Mr Forest to put in a detailed claim particularised so that the respondent and the Court understands it.

17. Part of that I based on the fact that he has a claim proceeding before the Federal Court and I made an assumption, which may have been quite wrong in the circumstances, that he was quite capable of putting down a claim of a grievances that he wishes this Court to rule on.  It did not help at the time because he said he did not want to tell me what were his health issues. He has now assisted me in Court in putting before the Court what his health issues are.

18. The Court now has some understanding of those health issues.  That being the case, the Court has some understanding that whatever steps I take, I have to be sure procedural fairness has been afforded to Mr Forest.  I am not sure that procedural fairness had been, not necessarily by mistake of the Court, but simply because the Court was not aware of some of the issues Mr Forest faces or faced in getting his matter to trial.

19. In any case, he has now put before the Court material which the Court understands because the Court does understand materials and evidence of psychiatrists, especially when it is expressed in the terms of the DSM4 because Courts are quite used to dealing and understanding, or at least accepting evidence, pursuant to assessments made by psychiatrists pursuant to the DSM4 and Courts are used to ruling and making rulings pursuant to that evidence.

20. It at least gives the Court and the respondent some idea of Mr Forest's difficulties so that actions can be taken to progress the matter in a legal form, although as Mr Forest pointed out pursuant to Rule 1 of this Court's rules, in a manner conducted as informally as possible.  The Court will do that, but as I say, the Court still has to conduct a trial and at times there are matters where the Court may be informal, at times there are matters where the Court will be formal and that is to get the matter addressed on behalf of the prosecutor, who I have explained prior to this, is Mr Forest.  He is prosecuting a case, he needs to get on with the case, but he says he is having some difficulty in formulating the case.

21. I accept that. In consequence he has brought before me and brought my attention to Rule 12 of the Federal Magistrates Court Rules, and that is a rule which refers to all proceedings and referral by a Court for legal assistance. Now, I am referring to the rules:

    The object of this part is to establish a scheme to facilitate the provision of legal assistance to parties who are otherwise unable to obtain assistance if to do so is in the interests of the administration of justice.  The scheme is certainly not a substitute for Legal Aid.  The referral of the party for legal assistance is not an indication that the Court has formed an opinion on the merits of a party's case.

22. I do not think Mr Forest is asking me at this stage to form an opinion on the merits of his case, and indeed I could not if he asked me to.  12.2 of those rules looks to an authorised Registrar who may maintain for each Registry a list of lawyers who have agreed to participate in a scheme called the Pro Bono Panel.  Now, before I refer a party, I must satisfy myself, and indeed I did so and indeed Ms Holthusen, I think, submitted it was proper for me to do so, that Mr Forest did not have the means to seek assistance and he tells the Court that he is on a Disability Pension of about $500 a fortnight which is $12,000 a year and that is what he lives on.

23. I have looked at the capacity of the party to obtain legal assistance outside the scheme and the fact that he represents himself. He tells me he has been to Legal Aid.  I am satisfied that unless there is some mechanism otherwise he is certainly not going to get legal assistance and I have to be satisfied as to the nature and complexity of the proceeding and I am certainly satisfied at this stage that to properly inform the Court and the respondent of the issues it is facing, the case is of a nature and complexity which would require legal assistance, if such can be arranged under part 12.

24. I should say that I raised with the parties whether this may not be a matter, because I do want the parties to consider this in view of the orders I am going to make shortly, as to whether the nature of the rights which Mr Forest brings to this Court for adjudication cannot be determined by examining all of the correspondence which has passed between the parties and upon the words which have been spoken between the parties and any other act and I draw their attention to cases wherein issues in anti-discrimination and human rights matters, in some cases, can be determined from correspondence and words spoken which have passed between the parties.

25. Now, I am aware that those cases exist and I have not had time to point the parties to those cases, but I raise that as an issue because it may well be a way around some of the issues we are facing, and I think we are facing issues where a party wants a particularised claim, because that is what lawyers are used to dealing with, and the other party says they believe genuinely they have complied. 

26. I raise that issue for the parties to consider so that proper submissions can be made when the matter comes back before me and what brought that to my attention was a letter from the solicitors for the respondent dated 14 February 2007. I will not go through all that. It is a very short letter, but it says despite orders I made on December 5, Mr Forest had not filed and served a detailed claim. The solicitors state that due to Mr Forest's failure to comply with the orders and properly particularise the claim:

    Our client has no alternative but to presume that the claim is limited to alleged breaches of the Disability Discrimination Act 1992 as set out in the second paragraph 28 of an affidavit filed in matter BRG865 of 2006 and paragraph of 13 of the affidavit filed in matter BRG780 of 2006.

27. Now, firstly I should say there are two matters here and they are the matters as I have just referred to them, BRG865 and BRG780. It occurs to me that the matters Mr Forest is concerned about that he brings to Court for adjudication may well be matters which can be identified in all of the correspondence which has passed.  It may not be, and I am aware that it may not be, and I understand Mr Forest will not limit the matters.  At some stage I will be called on to limit the matters or make decisions and I explained that to Mr Forest today.  I explained that I was not doing so today.

28. Originally I probably was going to be asked to do so, but in view of the evidence Mr Forest puts before me of Dr Trott I think it would be inappropriate to make such a ruling today.  So based on all of that I am going to make an inquiry of the Registrar of the Federal Magistrates Court whether in fact pursuant to part 12 of the Rules which govern this Court, there is a scheme to which the Court can refer Mr Forest too.

29. I am clearly stating that I do not know until I make inquiry of the Registrar. As soon as I have the Registrar's answer I intend to let the parties know, by correspondence rather than calling both parties back at this stage

30. Unless there is objection, I would make orders in Chambers referring Mr Forest to that scheme.  Is there any objection to me doing that, or do you wish me to do it in an open Court?  Both parties, I think, do not object to me doing that in Chambers, if there is such a scheme, I would intend doing so.

    RECORDED  :  NOT TRANSCRIBED

31. Because I am going to do that, I really think I must vacate the orders I made previously, even though Virgin Blue came today to ask me to extend the dates of the orders I made and to order again that Mr Forest put in a particularised claim.  I do not think I have any choice.  The orders I made previously, I made on the basis of the knowledge which I had and that was the basis of the information which the parties put before the Court and at that stage I certainly had no inkling or idea of some of the medical issues facing Mr Forest.

32. Because he has chosen and quite properly to put these issues before the Court I do not have any choice, I think, but to vacate those orders and at this stage make an order or at least inform the parties that I intend making inquiries of the Registrar.  I vacate those orders formally.  It does not mean that the parties, if it is appropriate, cannot determine the case from the correspondence which has passed from attempts by Mr Forest in the past to comply with those orders and other correspondence.

33. It merely means that I am not now requiring Mr Forest to put in any further material at this stage or to comply with any time lines at this stage.  This matter will now come back at some stage.  I am going to adjourn it to a date to be fixed until at least I can determine that there is some assistance for Mr Forest.  If there is not, at some stage either one of the parties will bring it back or I will bring it back of my own volition to make further orders if need be.

34. I am going to also formally order, I vacate all prior orders and that I make a transcript of this judgment available to both parties.  That is if I can do that.  The Federal Court Registrar may tell me that I cannot do that, and if I am so informed I will abide by the order of the Registrar of the Federal Court in relation to transcripts.  I adjourn to a date to be fixed.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Coates FM

Associate: Erin Firns

Date: 17 May 2007