GABLE v Vero Workers Compensation Ltd
[2004] FMCA 97
•3 March 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GABLE v VERO WORKERS COMPENSATION LTD | [2004] FMCA 97 |
| HUMAN RIGHTS – Disability discrimination – whether any basis for claim under relevant legislation – summary dismissal – relevance of Court resources – public interest – usual principles apply. |
Disability Discrimination Act 1992, ss.5, 6, 24
Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.46PH(1)(c)
Accident Compensation Act 1985 (Vic)
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 applied
Chung v University of Sydney [2001] FMCA 94 not followed
Soreng v Victorian State Director of Public Housing [2002] FMCA 124 not followed
Smith and Anor v Gannawarra Shire Council and Anor (2002) 4 VR 344 referred to
Webster v Lampard (1993) 177 CLR 598 applied
Commonwealth of Australia v Humphries and Ors (1998) 86 FCR 324 followed
Arrah v P&O Catering Services Pty Ltd [2002] FMCA 27 referred to
| Applicant: | DAMON GABLE |
| Respondent: | VERO WORKERS COMPENSATION LIMITED (formerly known as Royal & Sun Alliance Workers Compensation Limited) |
| File No: | WZ 117 of 2003 |
| Delivered on: | 3 March 2004 |
| Delivered at: | Melbourne |
| Hearing Date: | 9 February 2004 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr R Millar |
| Solicitors for the Respondent: | Lander & Rogers |
ORDERS
The application filed 14 July 2003 be dismissed.
The Applicant shall pay the Respondent’s costs, including reserved costs, pursuant to Schedule 1 of the Federal Magistrates Court Rules to be taxed in default of agreement pursuant to Order 62 of the Federal Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
WZ 117 of 2003
| DAMON GABLE |
Applicant
and
| VERO WORKERS COMPENSATION LIMITED (formerly known as Royal & Sun Alliance Workers Compensation Limited) |
Respondent
REASONS FOR JUDGMENT
This is an application for summary dismissal of a claim by the applicant against the respondent. The application filed by the applicant on 14 July 2003 arose from a decision of Human Rights and Equal Opportunity Commission (the Commission) to terminate a complaint alleging discrimination in the provision of goods, services and facilities on the ground of disability under the Disability Discrimination Act 1992 (the DDA).
The notice of termination was issued pursuant to s.46PH(1)(c) of the Human Rights and Equal Opportunity Commission Act (Cth) 1986 (the HREOC Act) on 19 June 2003 terminated a complaint dated
8 February 2003.
The application for summary dismissal has been made by way of a response filed on 24 November 2003. The respondent in its application for summary dismissal pursuant to Rule 13.10 of the Federal Magistrates Court Rules relies upon the following grounds:
“1.In dealing with the applicant, the respondent was acting merely as the agent of the Victorian WorkerCover Authority ("VWA"). Accordingly, any act or omission of the respondent was in fact an act or omission of the VWA.
2.The applicant claims discrimination under section 24 (provision of goods and services) of the Disability Discrimination Act 1992. However, the respondent has not provided any goods or services to the applicant. The respondent has merely managed a claim by the applicant for the VWA. The only services that the respondent provided were provided to the VWA in the interests of fulfilling the VWA's functions under the Accident Compensation Act 1985.
3.While the applicant purports to rely on section 24 of the Disability Discrimination Act 1992, the alleged acts or omissions of the respondent are not capable of constituting discrimination on the grounds of a disability of the applicant. In particular, the applicant does not allege that any failure to provide him with particular opportunities was due to discrimination on the grounds of any disability suffered by the applicant. Rather, the basis of the applicant's claim appears to be that the 'legal system had an obligation to help [him] return to an equivalent’ position. Whether or not there was such an obligation, the failure to do so is not discrimination on the basis of a disability.
4.Indicative of the fact that any alleged failure to provide particular opportunities is not alleged to be due to discrimination on the grounds of a disability is that the applicant does not identify any disability that was the basis of the discrimination.
5.Also indicative of the true nature of the allegations by the applicant, is that the applicant does not allege how he was discriminated against. In particular, the applicant has provided no evidence or particulars about the type of opportunities that would have been offered to a person who did not suffer the applicant's disability (ie a comparator). Indeed, it would seem that a person without a disability would not have had a workers’ compensation claim that would require him to be retrained or returned to work, and that a person without a disability would, therefore, have been offered fewer opportunities by the respondent, not more.”
The background to this matter is set out in brief terms in attachment A to the notice of termination which is a letter dated 19 June 2003 from the Commission to the applicant and which provides the following:
“I refer to your complaint lodged under the Human Rights and Equal Opportunity Commission Act 1986 (HREOCA) against Royal & Sun Alliance Insurance Australia Limited (R&SA) alleging a breach of the terms of the Disability Discrimination Act 1992 (DDA) in the provision of goods, services and facilities. Your complaint has been considered under sections 5, 6 and 24 of the DDA.
You advised that on 27 July 1999 you sustained a work related injury. You state you fell from a ladder landing on your left side injuring your arm, leg, neck and lower back. You claim that you returned to work on modified duties on 28 July 1999 and that you were dismissed on 4 August 1999.
You claim that R&SA were the insurer responsible for your workers compensation claim as a result of the accident. You claim that R&SA had an obligation to assist you to return to work and that this did not occur. You further claim that you have been looking for employment for some time and that R&SA has not provided the appropriate assistance to you in this process. You claim further that Royal & Sun Alliance did not take adequate measures to retrain you and this has resulted in you experiencing significant financial hardship.
You allege that R&SA has discriminated against you on the basis of your disability in the provision of goods, services and facilities.”
It is appropriate to set out the relevant legislation namely, ss.5, 6 and 24 of the DDA:-
“5(1)For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.
(2)For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability.
6.For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition:
(a)with which a substantially higher proportion of persons without the disability comply or are able to comply; and
(b) which is not reasonable having regard to the circumstances of the case; and(c) with which the aggrieved person does not or is not able to comply.
…
24(1)It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's disability or a disability of any of that other person's associates:
(a)by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or
(b)in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or
(c)(c) in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.
(2)This section does not render it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services, or making facilities available, would impose unjustifiable hardship on the person who provides the goods or services or makes the facilities available.”
It is also appropriate in the present application to set out the principles which apply in relation to a summary dismissal. Those principles were referred to by Barwick CJ in General Steel Industries Inc v Commissioner For Railways (NSW) (1964) 112 CLR 125 at 129:
“It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense". (at p129) 9. At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or "so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument"; "so to speak apparent at a glance". (at p129) 10.
… Dixon J. (as he then was) sums up a number of authorities in Dey v. Victorian Railways Commissioners (1949) 78 CLR 62 VOL CXII-9 where he says (1949) 78 CLR, at p 91 : "A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process." Although I can agree with Latham C.J. in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings (1949) 78 CLR, at p 84, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.”
During the course of submissions made in the present case on behalf of the respondent some reliance was sought to be placed upon two decisions of the Federal Magistrates Court. The first was a decision in the matter of Chung v University of Sydney [2001] FMCA 94. In that case reference was made to the extempore reasons for judgment and in particular paragraph 28 where the court stated the following:
“Accordingly, I think it is in the interests of both the parties and also in the public interest, in terms of the efficient disposition of court resources, that no further time is devoted to these proceedings.”
Reference was also made to the decision of Soreng v Victorian State Director of Public Housing [2002] FMCA 124 where the court states at paragraph 20 the following:
“I think that it is in the interests of the parties and the public that no further time is spent on these proceedings and I note that the respondent does not seek the applicant pay the respondent's costs of the proceedings.”
It had been submitted that this court should rely upon those extracts from the Chung and Soreng cases claimed to provide an additional basis upon which it should exercise its discretion in relation to the issue of summary dismissal.
With respect to the decisions of the learned federal magistrates in both cases, I do not find that I am able to apply the reasoning in the present case. The interests of the parties and the public interest in terms of court resources should not be regarded, in my view, as a factor to be taken into account in the exercise of the court's discretion in relation to summary dismissal. The fact that the rules of the court provide for summary dismissal is sufficient recognition of the need for courts to ensure that matters do not proceed in circumstances where it is possible for the court to decide in the exercise of its discretion that the application is one where there is no reasonable cause of action, frivolous, vexatious and/or an abuse of process. The appropriate principles to apply are set out in the decision of Barwick CJ in the General Steel Industries case to which I have already referred.
The issue of the current pressures on courts to deal with cases in an expeditious fashion does not, in my view, override or indeed provide an additional factor to be taken into account in the exercise of discretion for summary dismissal. In the context of an application for summary dismissal it is useful to refer to the decision by Winneke P in the Victorian Supreme Court of Appeal in the matter of Smith and Anor v Gannawarra Shire Council and Anor (2002) 4 VR 344 where the court states, albeit in the context of an adjournment application, the following:
“In this day and age when the courts are under pressure to deal with cases before them in an expeditious fashion and where accordingly case management has become a significant aspect of the curial processes the administration of justice still requires that the courts ensure, so far as practicable, that justice be administered evenhandedly so that each party to a dispute is in a position within the bounds of reason to present his or her case to the court in its best light and in an orderly fashion. As Dawson, Gaudron and McHugh JJ pointed out in Queensland v JL Holdings Pty Ltd, in matters like this justice is the paramount consideration. In other words, courts should be astute to ensure that expediency is not permitted to usurp justice by refusing to grant an adjournment at the instance of a party in circumstances which will significantly interfere with the ability of that party to present his or her case effectively.”
I note further for the sake of completeness a passage from Webster v Lampard (1993) 177 CLR 598 where Mason CJ, Deane and Dawson JJ stated the following:
The power to order summary judgment must be exercised with "exceptional precaution' and 'should never be exercised unless it is clear that there is no real question to be tried'.
The respondent has submitted that in the present case there is no real question to be tried in the present proceeding. Whilst reliance was placed upon the grounds set out in the response to which I have already referred, it became evident during the course of submissions that the main issue was the question of whether or not the applicant has satisfied the court on the material presently before it that a contravention of a relevant provision of the DDA has been established and whether the applicant could properly be said to be suffering from a disability which in turn has caused him, pursuant to s.5 of the DDA, to be genuinely a person who could be said to have been treated less favourably than in circumstances that are the same or are not materially different to the way the alleged discriminator would treat or has treated a person without a disability.
Reliance was placed upon the decision of the Federal Court in Commonwealth of Australia v Humphries and Ors (1998) 86 FCR 324 at 334 where Here Honour Kiefel J when considering the findings of an inquiry commissioner stated the following:
“The reasons do not explain how the other inquiry posed by the question, as to the "reason" for any different treatment, is to be answered, save that they would appear to treat as discriminatory an unfulfilled need brought about by the disability in question. The grounds for discrimination ("because of") require more. It would need to be found that Mrs Humphries' disability brought about the less favourable treatment or caused it to occur.”
I have previously applied what her Honour said in the matter of Arrah v P&O Catering Services Pty Ltd [2002] FMCA 27 (see paragraphs 14 and 15). In paragraph 15 I referred to the following passage which appears in her Honour's judgment at page 335:
“The obligation upon employers, then is not to discriminate against disabled employees because of their disability.”
Pursuant to an order made by the court, the applicant in the present case filed Points of Claim on 6 November 2003. The order made by the court on 27 October 2003 requiring the Applicant to file Points of Claim was in the following terms:
“The Applicant shall file and serve by 10 November 2003 Points of Claim including reference to specific provisions of the Disability Discrimination Act said to have been breached by the Respondent, and particulars of the basis upon which the discrimination has occurred by reason of a claimed disability and the Respondent's failure to provide retraining opportunities to the Applicant.”
It was submitted for and on behalf of the respondent in support of the application for summary dismissal that the points of claim have not identified any particular section relied upon.
For the purposes of this summary dismissal application after making due allowance for the fact the applicant is unrepresented and clearly aggrieved by his perception of the inadequate treatment he has received following his work-related injury, I am prepared to accept, as did the Commission, that he relies upon ss.5, 6 and 24 of the DDA.
In a sense this is a generous view in circumstances where the application as originally filed simply seeks compensation and provides a brief affidavit in support which tends to focus more on loss suffered than specific provisions of the relevant legislation. For the present purposes I am also prepared to accept, as did the Commission, that it is conceivable that the respondent in assuming responsibility for the administration of the Accident Compensation Act 1985 (Victoria) provides services of a kind which would fall within s.24 of the DDA.
However, on a proper reading of all the material it is clear to me that there is no reasonable cause of action in the present case, or, to put it another way, the applicant's claim is so obviously untenable that it cannot possibly succeed. The fact remains that recipients of workers compensation whilst suffering from a disability are then subjected to rehabilitation arranged under what is described as the "WorkCover system" pursuant to the accident compensation legislation. Workers without a disability are not subject to the legislation and nor indeed do they require rehabilitation under that legislation.
To the extent that the applicant may have a grievance, it would be a grievance, in my view, which would properly be addressed under the relevant workers compensation legislation and any redress he seeks would be redress available under that legislation to either the appropriate Victorian court or the Victorian Civil and Administrative Tribunal (VCAT). I otherwise accept the submissions made by the respondent that there is obviously no "comparator" available in the present case. Hence, in my view, there is an insurmountable difficulty confronting the applicant at this early stage of the proceedings.
I do not doubt the sincerity of the applicant and he is genuinely aggrieved by his treatment. However, it is not appropriate for this court. to make a finding in relation to that matter when considering, as it must, the issue of whether there is any legislative basis upon which the claim can be made under the DDA.
It follows that the application for summary dismissal should succeed. The order of the Court will be that the Application filed 14 July 2003 be dismissed with costs.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 3 March 2004
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