Hinton v Alpha Westmead Private Hospital Pty Ltd
[2016] FCCA 270
•11 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HINTON v ALPHA WESTMEAD PRIVATE HOSPITAL PTY LTD | [2016] FCCA 270 |
| Catchwords: HUMAN RIGHTS – Summary dismissal – whether the proceedings were an abuse of process – whether there was an arguable case – whether application is frivolous or vexatious – no arguable case – proceedings summarily dismissed. |
| Legislation: Australian Human Rights Commission Act 1986 (Cth), ss.49B, 46PO, 46PR Federal Circuit Court of Australia Act 1999 (Cth), s.17A Federal Circuit Court Rules 2001 (Cth), rr.1.03(1), 13.10(c), 41.02A |
| Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303 The King v Blakely Ex Parte Association of Architects & Ors of Australia (1950) 82 CLR 54 Pinho v Andre [1994] VicSC 817 (20 December 1994), unreported Shrestha v Minister for Immigration (2015) 229 FCR 301 Spencer v the Commonwealth of Australia (2010) 241 CLR 118 |
| Applicant: | KATE JOYTON-SMITH HINTON |
| Respondent: | ALPHA WESTMEAD PRIVATE HOSPITAL PTY LTD (ABN 990 838 745 97) |
| File Number: | SYG 3166 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 11 February 2016 |
| Date of Last Submission: | 11 February 2016 |
| Delivered at: | Sydney |
| Delivered on: | 11 February 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms K Nomchong Senior Counsel Mr B Fogarty |
| Solicitors for the Applicant: | Public Interest Advocacy Centre |
| No appearance by the respondent |
ORDERS
The application is dismissed under s.17A of the Federal Circuit Court of Australia Act 1999.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3166 of 2015
| KATE JOYTON-SMITH HINTON |
Applicant
And
| ALPHA WESTMEAD PRIVATE HOSPITAL |
Respondent
REASONS FOR JUDGMENT
This is an application purportedly within the Court’s jurisdiction under s.49B of the Australian Human Rights Commission Act 1986 (the AHRC Act) (Cth). The application requires the parties or their legal representatives to attend the first hearing and expressly records on the front page “The Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceeding.”
The application in this Court was filed on 20 November 2015 together with the complaint made to the Australian Human Rights Commission and a copy of the termination of complaint dated 22 September 2015 consistent with r.41.02A of the Federal Circuit Court Rules 2001. The nature of the application based on the complaint to the Australian Human Rights Commission is an allegation of either direct or indirect discrimination of the applicant as an associate of a person with a disability by the refusal of the respondent private hospital to provide an Auslan interpreter to the applicant’s husband, who is hearing impaired, during the applicant’s child birth. The application alleged unlawful disability discrimination contrary to s.5, s.7 and s.24 (the direct discrimination) and/or s.6, s.7 and s.24 (the indirect discrimination) of the Disability Discrimination Act 1999 (Cth) (the DD Act). Those provisions and the other relevant legislation are as follows:
Disability Discrimination Act 1999
3 Objects
The objects of this Act are:
(a) to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of:
(i) work, accommodation, education, access to premises, clubs and sport; and
(ii) the provision of goods, facilities, services and land; and
(iii) existing laws; and
(iv) the administration of Commonwealth laws and programs; and
(b) to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community; and
(c) to promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community.
4 Interpretation
(1) In this Act, unless the contrary intention appears:
…
associate, in relation to a person, includes:
(a) a spouse of the person; and
(b) another person who is living with the person on a genuine domestic basis; and
(c) a relative of the person; and
(d) a carer of the person; and
(e) another person who is in a business, sporting or recreational relationship with the person.
…
disability, in relation to a person, means:
(a) total or partial loss of the person’s bodily or mental functions; or
(b) total or partial loss of a part of the body; or
(c) the presence in the body of organisms causing disease or illness; or
(d) the presence in the body of organisms capable of causing disease or illness; or
(e) the malfunction, malformation or disfigurement of a part of the person’s body; or
(f) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or
(g) a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;
and includes a disability that:
(h) presently exists; or
(i) previously existed but no longer exists; or
(j) may exist in the future (including because of a genetic predisposition to that disability); or
(k) is imputed to a person.
To avoid doubt, a disability that is otherwise covered by this definition includes behaviour that is a symptom or manifestation of the disability.
…
discriminate has the meaning given by sections 5 and 6.
Note: Section 7 (associates) and section 8 (carers, assistants, assistance animals and disability aids) extend the concept of discrimination.
…
reasonable adjustment: an adjustment to be made by a person is a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship on the person.
…
services includes:
(a) services relating to banking, insurance, superannuation and the provision of grants, loans, credit or finance; or
(b) services relating to entertainment, recreation or refreshment; or
(c) services relating to transport or travel; or
(d) services relating to telecommunications; or
(e) services of the kind provided by the members of any profession or trade; or
(f) services of the kind provided by a government, a government authority or a local government body.
…
(2) For the purposes of this Act, refusing or failing to do an act is taken to be the doing of an act and a reference to an act includes a reference to a refusal or failure to do an act.
5 Direct disability discrimination
(1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.
(2) For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a) the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and
(b) the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.
(3) For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments.
6 Indirect disability discrimination
(1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and
(b) because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and
(c) the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability.
(2) For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and
(b) because of the disability, the aggrieved person would comply, or would be able to comply, with the requirement or condition only if the discriminator made reasonable adjustments for the person, but the discriminator does not do so or proposes not to do so; and
(c) the failure to make reasonable adjustments has, or is likely to have, the effect of disadvantaging persons with the disability.
(3) Subsection (1) or (2) does not apply if the requirement or condition is reasonable, having regard to the circumstances of the case.
(4) For the purposes of subsection (3), the burden of proving that the requirement or condition is reasonable, having regard to the circumstances of the case, lies on the person who requires, or proposes to require, the person with the disability to comply with the requirement or condition.
7 Discrimination in relation to associates
(1) This Act applies in relation to a person who has an associate with a disability in the same way as it applies in relation to a person with the disability.
Example: It is unlawful, under section 15, for an employer to discriminate against an employee on the ground of a disability of any of the employee’s associates.
(2) For the purposes of subsection (1), but without limiting that subsection, this Act has effect in relation to a person who has an associate with a disability as if:
(a) each reference to something being done or needed because of a disability were a reference to the thing being done or needed because of the fact that the person has an associate with the disability; and
(b) each other reference to a disability were a reference to the disability of the associate.
(3) This section does not apply to section 53 or 54 (combat duties and peacekeeping services) or subsection 54A(2) or (3) (assistance animals).
…
24 Goods, services and facilities
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:
(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) 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.
Australian Human Rights Commission Act 1986
3 Interpretation
(1) In this Act, unless the contrary intention appears:
…
affected person, in relation to a complaint, means a person on whose behalf the complaint was lodged.
…
complaint, except in Part IIC, means a complaint lodged under Division 1 of Part IIB.
…
(3) In this Act:
(a) a reference to, or to the doing of, an act includes a reference to a refusal or failure to do an act; and
(b) a reference, in relation to the doing of an act or the engaging in of a practice, to the person who did the act or engaged in the practice shall, in the case of an act done or practice engaged in by an unincorporated body of persons, be read as a reference to that body.
46PO Application to court if complaint is terminated
(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 Circuit Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.
Note: Part IVA of the Federal Court of Australia Act 1976 allows representative proceedings to be commenced in the Federal Court in certain circumstances.
(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.
(3) The unlawful discrimination alleged in the application:
(a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or
(b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.
(4) If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:
(a) an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;
(b) an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;
(c) an order requiring a respondent to employ or re‑employ an applicant;
(d) an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;
(e) an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;
(f) an order declaring that it would be inappropriate for any further action to be taken in the matter.
(5) In the case of a representative proceeding under Part IVA of the Federal Court of Australia Act 1976, subsection (4) of this section applies as if a reference to an applicant included a reference to each person who is a group member (within the meaning of Part IVA of the Federal Court of Australia Act 1976).
(6) The court concerned may, if it thinks fit, grant an interim injunction pending the determination of the proceedings.
(7) The court concerned may discharge or vary any order made under this section (including an injunction granted under subsection (6)).
(8) The court concerned cannot, as a condition of granting an interim injunction, require a person to give an undertaking as to damages.
…
46PR Court not bound by technicalities
In proceedings under this Division, the Federal Court and the Federal Circuit Court are not bound by technicalities or legal forms. This section has effect subject to Chapter III of the Constitution.
Federal Circuit Court of Australia Act 1999
17A Summary judgment
(1) The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is prosecuting the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2) The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
(4) This section does not limit any powers that the Federal Circuit Court of Australia has apart from this section.
Federal Circuit Court Rules 2001
1.03 Objects
(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 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.
…
13.10 Disposal by summary dismissal
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.
The complaint form identifies the applicant as the complainant and that the applicant was complaining on behalf of her husband. The complaint form stated that what is complained about is in a letter from David Skidmore dated 24 April 2015. That letter records that the applicant is not hearing impaired and the problem was described under the heading “The main issues” as follows:
According to Ms Hinton, in a discussion with the Nursing Unit Manager for maternity services she discovered that Mr Hinton, despite being the father of the child, would not be entitled to interpreting services because he is not the ‘patient’. In other words, if she was the one who was deaf Ms Hinton would be entitled to sign language interpreter services when interacting with hospital staff as required. But of course in Ms Hinton’s case as an expectant mother, it is unreasonable to exclude Mr Hinton as if he is somehow peripheral.
According to the NSW Health website “patients, their families and carers who do not speak English as a first language or who are deaf have the right to free, confidential and professional Auslan interpreters when they use public health services.” Moreover, NSW Health policy on this issue stipulates that family members and friends should not by (sic) providing the interpreting services – legal action may result if they do.
Mr and Ms Hinton have paid into private health insurance in order to be able to use a private hospital’s facilities. However, in regard to services for those who are hearing impaired it appears Westmead Private Hospital offers less of a service than the public system.
In other words, there is a double standard operating here that may constitute discrimination.
At the commencement of the matter at 9.30 am the Court sought to clarify with junior counsel for the applicant that the facts appeared to be ones in which the allegation of unlawful disability discrimination arose out of the applicant receiving maternity services in advance of the birth of her child in circumstances where the husband was hearing impaired, and no services were being provided to the husband.
It is manifest from the complaint that the applicant’s husband was not the recipient of maternity services and was not the patient at the respondent private hospital. The respondent private hospital was not providing any services to the applicant’s husband. Further, it was the applicant only who exercised the right under s.46PO(1) of the AHRC Act to make an application to this Court. An application under s.46PO(2) of the AHRC Act must be made within 60 days of issue of the notice of termination of complaint, unless further time is allowed by the Court concerned. Further, under s.46PO(3) of the AHRC Act the alleged unlawful discrimination must be the same or substantially the same conduct the subject of the terminated complaint or must arise out of the same or substantially the same acts omissions or practices the subject of the terminated complaint.
The complaint did not identify any conduct on its face disclosing any arguable contravention of the DD Act. Further, under s.46PR of the AHRC Act the Court is not bound by technicalities or legal forms. The objects manifested by this provision, and also r.1.03(1) of the Federal Circuit Court Rules 2001, are the expeditious and cost efficient determination of the matter. The modern era of proactive case management by the Court as recognised in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303 at [42], [51] and [57] is consistent with the said objects, and is entirely consistent with the Court expeditiously preventing its process from being the subject of abuse where obvious on its face. The neutrality and impartiality of the Court are not in any way undermined by the Court not allowing an obvious abuse of its process.
In accordance with the notation on the front page of the application, the Court raised with junior counsel for the applicant that the proceedings appeared on their face to be an abuse of process and that the Court wished to hear submissions on this issue. Counsel objected to the issue being raised. The Court noted that it had control over its own process, and wished to hear why there was an arguable case of discrimination under the DD Act.
Counsel for the applicant indicated that he was not in a position to do so forthwith, and the matter was stood down to 2.15pm, being an adjournment of almost 5 hours.
Senior counsel then appeared, together with junior counsel, on behalf of the applicant. The same facts as raised above with junior counsel were confirmed by senior counsel. Senior counsel wanted an opportunity to plead. The alleged unlawful disability discrimination is confined by the facts in the complaint, see s.46PO(3) of the AHRC Act. Those facts, as identified above, are not capable in the context of the complaint in this case of giving rise to any arguable cause of action of unlawful disability discrimination. Senior counsel also handed up submissions on behalf of the applicant and foreshadowed the desire to join the husband. The desire to join the husband is in essence an endeavour to overcome the clear want of any arguable issue in respect of unlawful disability discrimination in respect of the applicant. For the reasons given below the joinder of the husband would not cure the want of an arguable issue. Further the husband cannot advance an allegation of unlawful disability discrimination beyond the scope of the facts in the complaint as provided in s.46PO(3) of the AHRC Act.
Senior counsel for the applicant submitted that the husband was receiving the services because he would be present for the birth of his child. It was conceded by senior counsel that the husband was not in fact receiving any medical treatment from the respondent. Further, the complaint notes that the husband was not a patient of the respondent. The proposition that husband would be receiving services from the respondent during the birth of his wife’s child is untenable. Further the birth of the child occurred at a public hospital and the relevant time of the alleged unlawful disability discrimination was the time of discussion with the Nursing Unit Manger in advance of the birth of the child. There is no arguable case of direct or indirect discrimination by the respondent on the facts of the complaint, and no arguable case of the applicant being an associate in relation to the alleged discrimination. Nothing said by senior counsel identified any arguable basis upon which there could be said to be some allegation of unlawful disability discrimination arising from the complaint on behalf of the husband if he was allowed to be joined.
The position in relation to maternity services is that the applicant in due course attended upon a public hospital for the birth of her child. At the public hospital arrangements were made by the hospital, at its own cost, for the attendance of an Auslan interpreter during the birth. It is difficult to understand, in those circumstances, why the applicant has brought these proceedings against the respondent. On the face of the proceedings, they appear to be nothing more than a trifle, even if an allegation of unlawful disability discrimination could somehow be said to be arguable. The policy of the public hospital does not give rise to any unlawful disability discrimination by the respondent. Nor does the willingness of the respondent to provide an interpreter during child birth at its own cost if the applicant mother was hearing impaired give rise to any unlawful disability discrimination by the respondent.
The application arising from the complaint in this case is a trifle. It is oppressive and vexatious to pursue a trifle, Williams v The Queen (1978) 140 CLR 591 at 602 and Pinho v Andre [1994] VicSC 817 (20 December 1994), unreported, in which Justice Smith cited the principle from Francis Bennion on Statutory Interpretation relevantly as follows:
It is essential to the working of a legal system that it should adopt the principle of the maxim de minimis non curat lex (the law does not concern itself with trifling matters). {Cro Eliz 353; Hob 88.} There are a number of reasons for this. Litigious persons and unnecessary litigation must be discouraged: bond judicis est lites dirimere (the good judge prevents litigation). {4 Co Inst 15.} Time must not be wasted. Costs must be kept down. The dignity of the law must be preserved. Parliament is presumed to have regard to all these matters, and by implication to intend that its enactments shall not apply in a de minimis case.
Neither the applicant nor the husband in fact incurred any cost for the provision of an interpreter. The respondent staff informed the applicant that a friend could also attend or that the applicant could pay for an interpreter. The conduct of the respondent which is the subject of the complaint are the facts that occurred at the time of the discussion between the applicant and the Nursing Unit Manager. The respondent was not present at that discussion and the applicant to this Court is based on that discussion giving rise to unlawful disability discrimination at that time. The applicant chose to go to a public hospital and although not obliged to do so by law, the applicant obtained the free presence of an Auslan interpreter at the cost of the public hospital.
The applicant’s demand for free Auslan interpreting services during her child’s birth from the respondent, despite being informed that she could bring along another third party to communicate with her husband or at her own cost bring along an interpreter, is at best a misplaced belief of entitlement that does not give rise to any arguable case of unlawful discrimination. The payment of private health insurance is irrelevant. The payment of private health insurance does not give rise to an entitlement to demand free Auslan interpreter services from the respondent.
The respondent provides important medical services and should not be vexed with a baseless trifle complaint of unlawful disability discrimination. None of the circumstances raised in the present complaint the subject of this application rise above a mere trifle, the pursuit of which is vexatious and as such an abuse of process. The Court’s jurisdiction is not to be invoked for trifles as that is vexatious and an abuse of process.
It was submitted by senior counsel for the applicant that there was a denial of procedural fairness in the Court striking the matter out as an abuse of process. It is the first duty of the Court to be satisfied that there is a matter within its jurisdiction, if only to avoid putting the parties to unnecessary risk and expense, The King v Blakely Ex Parte Association of Architects & Ors of Australia (1950) 82 CLR 54 at [70]. In performing this duty the Court is satisfied that the matter is within its jurisdiction but in doing so the issue of the matter being a potential abuse process arises on the face of the proceedings. Any solicitor that institutes proceedings on behalf of a party in this Court must have a proper basis for invoking the Court’s jurisdiction in a matter that discloses an arguable cause of action. Proceedings should not be brought if there is no arguable cause of action upon which the jurisdiction can be invoked, otherwise it is an abuse of process. To file and serve a Court process on another party in circumstances where there is no reasonably arguable cause of action is, in essence, to use the Court process as an abuse of process.
There has been no denial of procedural fairness as the applicant has been given a reasonable opportunity to identify whether there is an arguable case and whether the proceedings are an abuse of process. I have taken into account the principles of procedural fairness and reasonable opportunity to be heard before a mind capable of persuasion as identified in the Full Court in Shrestha v Minister for Immigration (2015) 229 FCR 301 at [37]-[51] and the further reference by Gageler J in Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38 at [186] The applicant was represented by highly competent counsel, instructed by an experienced solicitor who initiated these proceedings and should have been in position to support the invocation of this Court’s jurisdiction in respect of an arguable cause of action on the first return date. The matter was adjourned for almost 5 hours and senior counsel was then able to appear with 7 pages of written submissions. Given the date of the filing of the application by the legal representative for the applicant, the well qualified legal representation of the applicant and the small scope of facts alleged in the complaint upon which the applicant to this Court was founded and confined, as well as the notice given on the front page of the application, I am satisfied that the short adjournment was a reasonable opportunity for the applicant to identify an arguable case under the DD Act. Senior counsel was alive to the concerns raised by the Court and had prepared submissions seeking to address those concerns. The Court read and considered those submissions. Senior counsel was also heard orally in the development of submissions to identify an arguable case of unlawful disability discrimination.
The applicant’s submissions identified the seriousness of a strike out by the Court on its own motion and the clarity required as to the absence of a cause of action and the high degree of certainty required on the part of the Court as to the absence of a cause of action. It was submitted that the decision to strike out should not be taken lightly and that exceptional caution is required. It was submitted that in circumstances where pleadings and evidence had not been filed the strike out power should be used sparingly and only in a clear case. I have taken into account each of those principles in relation to the current application and I have taken into account the applicant’s request to put on pleadings or evidence and to stand the matter over. For the reasons given in this judgment there would be no utility in doing so as the proceedings are doomed to failure and the alleged unlawful discrimination in the application cannot be expanded beyond the scope of the complaint as identified in s.46PO(3) of the AHRC Act.
The applicant’s submissions contended a want of procedural fairness in relation to the issue raised of summary dismissal and alleged that the 5 hours was not adequate time to prepare a response. I reject that submission for the reasons given above at [16-17]. The submissions summarised the circumstances underpinning the application and addressed the standing of the applicant to bring the proceedings. I accept that the applicant has standing to bring the proceedings. It is however the content of the complaint attached to the application that are the critical facts underpinning the application. If those facts in the complaint are incapable of supporting an allegation of unlawful disability discrimination, as confined to the same or substantially the same discrimination in the complaint and as confined to arising out of the same or substantially the same acts, omissions and practices in the complaint, no other alleged circumstances can assist the applicant.
The submissions maintained that the applicant’s case was founded upon being an associate who had been the subject of unlawful disability discrimination. There is no fact in the complaint or able to be derived from the complaint that the applicant was discriminated against by the respondent because her husband was hearing impaired. The respondent simply was not offering a free interpretation service to the applicant’s husband.
The applicant’s submissions contended that the respondent provided a service to both the applicant and her husband that could be described as birthing and maternity services. There is no fact in the complaint or derivable from the complaint that any services were being provided by the respondent to the husband. It was submitted that during delivery the husband being in attendance would need to communicate between the staff of the respondent and both the applicant and her husband particularly if here was a complication and the applicant was not able to provide informed consent (alleged communication service). The facts of the complaint do not support any such alleged communication service and the alleged communication service could not be said to arise out of the facts in the complaint. On no view does the complaint support the existence of any services being provided to the respondent and there were no circumstances of the kind hypothetically advanced of complications at the time of the alleged unlawful disability discrimination in the complaint. The hypothetical circumstances alleged are not capable of being unlawful disability discrimination by the respondent.
The submissions asserted that by not providing Auslan interpreting the applicant unlawfully discriminated against the applicant and that there was a refusal to provide the alleged communication service under s.24(a) of the DD Act. This is unsustainable as there was no service being provided to the husband and the failure of the respondent to agree to provide the applicant with free interpreting service to communicate with her husband does not fall within s.24(a) of the DD Act. Nor for the reasons given above is the hypothetical conduct capable of giving rise to unlawful disability discrimination within s.24(a) of the DD Act. Accordingly, there is no arguable contravention of s.24(a) of the DD Act.
It was submitted that the birthing and maternity services were provided by the respondent on terms in contravention of s.24(b) of the DD Act. The facts of the complaint do not support any such term being imposed by the respondent and no such fact could be said to arise from the complaint. Further the refusal to provide a free Auslan interpreter was not a term on which birthing and maternity services were provided to the applicant. Accordingly, there is no arguable contravention of s.24(b) of the DD Act.
It was submitted that the manner in which the respondent provided the birthing and maternity services to the applicant was in contravention of s.24(c) of the DD Act. The refusal to provide the applicant with free interpreting with her husband was not a manner in which services were provided by the respondent. Accordingly, there is no arguable contravention of s.24(c) of the DD Act. It was also submitted that the Auslan interpreting was and is a reasonable adjustment for the purposes of s.4, s.5 and s.6 of the DD Act. There was no condition or requirement imposed on the applicant by the respondent that could give rise to a reasonable adjustment failure by the respondent. Further, the applicant does not have a disability and was not treated less favourably by the respondent. Accordingly no arguable case of unlawful disability discrimination on grounds of a reasonable adjustment failure arises from reliance upon s. 4, s.5 and s.6 of the DD Act.
The respondent did not appear on the return date, and the Court was informed that the respondent was content to consent to orders to stand the matter over, and that the parties were close to resolving the matter. The fact that the parties may be close to resolving the matter as a result of service of a proceeding that is an abuse of process is a cause of concern in itself.
Where Court process has been initiated and on its face is found to be an abuse of process, it is obviously unfair for a party to remain in a state in which the proceedings are treated as if they are not an abuse of process. In these circumstances, the communications between the parties are a further reason why the matter should be dealt with today.
For the reasons identified, nothing in the applicant’s submissions identified any arguable case of discrimination under the DD Act. It was submitted that a statement of claim might, in due course, be filed. There was no basis to contend that a statement of claim would elucidate an arguable cause of action given the facts identified by the complaint in this case and the work done by s.46PO(3) of the AHRC Act. The Court is satisfied that there would be no utility in adjourning the matter for the filing of evidence or pleadings as the Court finds the proceedings to be an abuse of process and neither pleadings nor affidavit evidence can overcome the want of an arguable issue of unlawful disability discrimination in respect of the complaint the subject of these proceedings.
The applicant’s complaint that founded the application filed in this Court, to which proceedings the husband is not a party, is of conduct by the respondent during her discussion with the Nursing Unit Manager in her role as an associate of a hearing impaired person. The applicant’s complaint wrongly assumes that through the associate provisions the applicant can demand services because of the intended presence of her husband, who is hearing impaired, during child birth by the applicant and her desire to communicate with him. The role of the applicant in the complaint does not fall within the associate provisions. The applicant suffered no differential treatment and no condition or requirement was imposed on the applicant. The complaint does not give rise to any arguable unlawful disability discrimination of the applicant as an associate. No arguable case of unlawful disability discrimination arises under s.24 of the DD Act in relation to the applicant however advanced under s.5, s.6 or s.7 of the Disability Discrimination Act 1999. Further, there was no condition or requirement imposed on the applicant by the respondent that could give rise to a reasonable adjustment failure by the respondent. No arguable case of unlawful disability discrimination on grounds of a reasonable adjustment failure arises under s.5, s.6 or s.7 of the DD Act in the circumstances of the complaint in relation to the applicant.
The applicant submitted that complications might arise in the course of a birth, as a result of which it was necessary for the applicant to have an ability to communicate with her husband. The consequence of the applicant’s argument would be that, anywhere that the applicant and her husband went, a service provider would have to provide an interpreter. That cannot be and is not the proper construction of the legislation. This is a case where it is crystal clear that the application founded upon the complaint to the Australian Human Rights Commission is doomed to failure.
The maternity services identified in the complaint were not being given by the respondent to the husband. The husband’s desire to use interpreting services at the cost of the respondent does not give rise to any differential treatment and no condition or requirement was imposed on the husband. Nor does the desire to communicate with his wife or to give instructions if his wife could not do so, create an entitlement to free Auslan interpretation services for the husband who was not receiving any services from the respondent. No arguable case of unlawful disability discrimination arises under s.24 of the DD Act in relation to the husband however advanced under s.5, s.6 or s.7 of the DD Act. There was no condition or requirement imposed on the husband by the respondent that could give rise to a reasonable adjustment failure by the respondent. No arguable issue of reasonable adjustment or unlawful disability discrimination arises under s.4, s.5 or s.6 of the DD Act in the circumstances of the complaint in relation to the husband.
The proposed joinder of the husband would not cure the absence of any arguable unlawful disability discrimination or cure the abuse of process. Further the joinder would require an extension of the 60 days under s.46PO(2) of the AHRC Act that expired on 21 November 2015. The interests of the administration of justice would not support a joinder in this case even if the delay was the subject of adequate explanation. This is because there would still be no arguable case of unlawful disability discrimination and because the proceedings remain an abuse of process over a trifle.
I take into the account the warnings and caution in the High Court in Spencer v the Commonwealth of Australia (2010) 241 CLR 118, at [24]-[25] and [59]-[60]:
24. The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action[46] or on the basis that the action is frivolous or vexatious or an abuse of process[47]. The same applies where such a disposition is sought in a summary judgment application supported by evidence. As to the latter, this Court in Fancourt v Mercantile Credits Ltd said[48]:
‘The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.”
More recently, in Batistatos v Roads and Traffic Authority (NSW)[49] Gleeson CJ, Gummow, Hayne and Crennan JJ repeated a statement by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde[50] which included the following:
“Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways[51], but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.”
There would seem to be little distinction between those approaches and the requirement of a “real” as distinct from “fanciful” prospect of success contemplated by s 31A[52]. That proposition, however, is not inconsistent with the proposition that the criterion in s 31A may be satisfied upon grounds wider than those contained in pre-existing Rules of Court authorising summary dispositions.
25. Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a “fanciful” prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.
…
59. In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like “clearly”, “manifestly” or “obviously”) as “frivolous”, “untenable”, “groundless” or “faulty”. But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word “reasonable”, in the phrase “no reasonable prospect”, be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a “frivolous”, “untenable”, “groundless” or “faulty” claim.
60. Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is “no reasonable prospect” of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to “no reasonable prospect” can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase “just and equitable” when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.
Taking into account the warnings, caution and limited circumstances in which the Court’s summary powers should be exercised, I am clearly satisfied that these proceedings are an abuse of process. I have taken into account the high degree of certainty required to conclude that this is an abuse of process and that the proceedings should not lightly be struck out. I am satisfied that this is an appropriate case in which to exercise the Court’s summary powers. The application is dismissed under s.17A of the Federal Circuit Court of Australia Act 1999 (Cth) and r.13.10(c) of the Federal Circuit Court Rules 2001.
I certify that the preceding thirty three (33) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 18 February 2016
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