Islam v Director General of the Justice and Community Safety Directorate
[2018] ACTSC 323
•23 November 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Islam v Director General of the Justice and Community Safety Directorate |
Citation: | [2018] ACTSC 323 |
Hearing Date: | 28 September 2018 |
DecisionDate: | 23 November 2018 |
Before: | McWilliam AsJ |
Decision: | 1. The application filed 29 August 2018 is dismissed. 2. The defendant is to pay the plaintiff’s costs of the application. |
Catchwords: | PRACTICE AND PROCEDURE – Court Procedure Rules 2006 (ACT) r 1147 – application for summary judgment – where threshold for summary judgment not met– application dismissed |
Legislation Cited: | Human Rights Act 2004 (ACT) ss 8(3), 14(1), 28, 40B, 40C |
Cases Cited: | Bleyer v Google Inc [2014] NSWSC 897; 88 NSWLR 670 |
Parties: | Isa Islam (Plaintiff) Director General of the Justice and Community Safety Directorate (Defendant) |
Representation: | Counsel Self-represented (Plaintiff) Ms N Tarbet (Defendant) |
| Solicitors Self-represented (Plaintiff) ACT Government Solicitor (Defendant) | |
File Number: | SC 289 of 2018 |
On 27 June 2018, the plaintiff, a sentenced prisoner in custody at the Alexander Maconochie Centre (AMC), commenced proceedings under s 40C of the Human Rights Act 2004 (ACT) (the Act) against the defendant for what he alleges are ongoing breaches of his human rights. An amended originating application was filed on 7 September 2018.
The plaintiff complains that on 24 June 2018, he did not receive his dessert meal entitlement, despite advising corrections staff of that fact. He further complains that the defendant’s meal delivery system is inadequate, that “inmates” are regularly receiving incorrect meals or missing meal entitlements, including many with special dietary requirements, and that the situation is not limited to isolated cases.
The plaintiff complains that because of the inadequate system for providing food to detainees at the AMC, the defendant is acting in a manner inconsistent with ss 8(3) and 14(1)(b) of the Act.
Section 8(3) of the Act is in the following terms:
Everyone is equal before the law and is entitled to the equal protection of the law without discrimination. In particular, everyone has the right to equal and effective protection against discrimination on any ground.
Section 14(1) of the Act provides:
Everyone has the right to freedom of thought, conscience and religion. This right includes—
(a)the freedom to have or to adopt a religion or belief of his or her choice; and
(b)the freedom to demonstrate his or her religion or belief in worship, observance, practice and teaching, either individually or as part of a community and whether in public or private.
The plaintiff relies on the second limb of that section.
The present application
On 29 August 2018, the defendant filed an application seeking summary judgment for the defendant, pursuant to r 1147 of the Court Procedure Rules 2006 (ACT) (Rules), citing three grounds.
First, the defendant asserts that the proceeding is frivolous or vexatious, in that it fails to disclose a reasonable cause of action or reasonable question of fact or law.
Second, the defendant asserts there is a good defence to the whole of the plaintiff’s complaint.
Third, the defendant argues the proceedings should be disposed of summarily, or without pleadings.
Principles
The discretionary remedy of summary relief will only be granted by the Court with the utmost caution, and only in very clear cases: O’Brien v Bank of Western Australia Ltd [2013] NSWCA 71 at [66].
The principles which apply to an application for summary judgment were summarised by Jagot J in Galovic Pty Limited v Australian Capital Territory [2010] ACTSC 132 at [5], cited with approval in McColley v Commonwealth of Australia [2012] ACTSC 154 and Bolas v Calvary Healthcare Limited [2016] ACTSC 58 at [1]. As the defendant acknowledged, the party seeking summary judgment faces a very high threshold.
As soon as there appears there is a “real question” to be determined on which relief depends, the summary judgment procedure is unavailable: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, 130 citing Dey v Victorian Railways Commissioners (1949) 78 CLR 62, 91.
Relevant to the present case, in Financial Integrity Group Pty Limited v Farmer [2009] ACTSC 143 (Financial Integrity Group), Refshauge J noted at [15] that an application for summary judgment must be made on the substance of the claim, and not the expression of it.
The necessity for argument, even extensive argument, is no bar, and questions of law may be determined on such an application: Spencer v Commonwealth of Australia [2010] HCA 28; 241 CLR 118 at [25].
The application is to be assessed on the assumption that every fact pleaded by the plaintiff is true: West v New South Wales [2007] ACTSC 43 at [9]. Thus, it is inappropriate to proceed to summary judgment where there is a conflict on matters of fact: Kays Holdings Pty Ltd v Nassar (1967) 69 SR (NSW) 231, 242 per Sugerman JA (with whom Jacobs JA agreed); Spellson v George and Ors (1992) 26 NSWLR 666, 678; cited in Financial Integrity Group at [19].
Whether the proceedings are frivolous or vexatious
Section 40B(1) of the Act prescribes that public authorities must act consistently with human rights as follows:
(1) It is unlawful for a public authority—
(a) to act in a way that is incompatible with a human right; or
(b)in making a decision, to fail to give proper consideration to a relevant human right.
The defendant submits that the amended originating application does not demonstrate that:
(a) an act, omission or decision was taken by the defendant;
(b) the relevant sections of the Act are engaged by an act, omission or decision; or
(c) that the defendant has acted in a way that is inconsistent with the plaintiff’s human rights under the Act.
Were this a case, at its highest, of an isolated instance of the non-receipt of a dessert that was remedied shortly thereafter, there may have been cause to consider an argument about the proceedings being frivolous, or an abuse of process, based on disproportionality. That is, whether the proceedings could be, and if so, should be, dismissed based on the interest at stake being out of all proportion to the resources (in terms of cost, complexity and duration of the proceedings) required to determine it.
As proportionality was an issue raised at the first directions hearing, and as the defendant has submitted that the law does not concern itself with trivialities (relying on the maxim de minimis non curat lex), I will briefly refer to it here, as it may have partly precipitated both the application for summary judgment and the plaintiff’s expansion of the argument through amending the originating application.
The principle is that a court has power in an appropriate case to stay or dismiss an action on the grounds that the resources of the court and the parties that will have to be expended to determine the claim are out of all proportion to the interest at stake: see Bleyer v Google Inc [2014] NSWSC 897; 88 NSWLR 670 (Bleyer) at [62] per McCallum J.
This principle was applied in Jameel (Yousef) v Dow Jones & Co Inc [2005] EWCA Civ 75; [2005] QB 946 and has started to receive application in Australian jurisdictions: most recently in Herron v HarperCollins Publishers Australia Pty Ltd [2018] FCA 1495 at [30]-[31] per Jagot J, citing Bleyer. However, its applicability remains uncertain: see Bristow v Adams [2014] NSWSC 897; 88 NSWLR 670 at [38]-[40]; Watney v Kencian [2017] QCA 116; [2018] 1 Qd R 407 at [61] and it is unnecessary to deal with the issue further because the plaintiff’s argument has expanded beyond one missed dessert.
The plaintiff now argues that the system at the AMC is failing him and other inmates who have special dietary requirements.
As I have found in Islam v Director-General of the Department of Justice and Community Safety Directorate [2018] ACTSC 322 (Islam) at [48], whether the statutory obligation under s 14 of the Act has been fulfilled or contravened is a question of fact and degree, to be assessed in all the circumstances. The plaintiff’s case will depend on the evidence that is before the Court.
I do not accept the submission that the amended originating application does not demonstrate the plaintiff has been, or would be, a victim of any contravention of the duty on public authorities imposed by s 40B(1) of the Act. Whether a failure to implement a system of providing food to a prisoner with special dietary requirements has occurred is a triable issue of fact.
Whether there is a good defence
The defendant next argues that there is a good defence to the amended originating application, such that summary judgment should be entered.
The defendant argues that the fact the plaintiff did not receive a dessert on 24 June 2018 was not a result of an act, omission or decision of the defendant.
Further, the defendant relies upon s 28 of the Act, which provides that human rights may be subject to reasonable limits set by laws that can be demonstrably justified in a free and democratic society. The section sets out a number of factors to be taken into account in assessing reasonableness. The defendant says that, to the extent that the meal delivery system at the AMC limited the rights upon which the plaintiff relies, the limitation is reasonable.
It is not sufficient for the defendant to establish that it has arguable defences, or even a good defence. Due to the high threshold for summary judgment, it must be so clear that the defence will succeed as to make it an abuse of process to allow the claim to continue. I do not accept that the defendant has established any arguable defence to that high threshold.
The defendant appears to have overlooked that the plaintiff expressly claims the meal delivery system was operated by the defendant. The implementation of a food delivery system for which the defendant is ultimately responsible may well be characterised as conduct ‘of the defendant’.
It is also fairly disclosed in the amended originating process that the system being implemented by the defendant provided incorrect meal entitlements, that the instances when that has occurred are not isolated, and that this has caused both the plaintiff and other inmates to miss meals.
It will be a matter for evidence as to whether the food delivery system being implemented at the AMC by the defendant is so inadequate as to constitute a breach of the plaintiff’s human rights, including whether the behaviour of staff responsible for correcting any mistakes once they are notified accords with the duties of the defendant under the Act.
Whether the proceeding should be finally disposed of summarily or without pleadings
The defendant argues that there is insufficient material before the Court to arguably demonstrate:
(a) what would constitute an adequate meal delivery system for the AMC;
(b) how the current system fails to meet the definition of an adequate meal delivery system;
(c) if the current system does not meet the definition of an adequate system, how that failure engages either s 8(3) or 14(1)(b) of the Act; and
(d) if the rights in the above sections are engaged, why any limitation of those rights is not reasonable within the meaning of s 28 of the Act.
The sufficiency of the material is a question for evidence at trial. I consider the pleading sets out the plaintiff’s complaint in sufficient detail for the defendant to readily understand what the plaintiff is seeking: he wants a system that allows him, while incarcerated, to receive meals, including meals that are consistent with his religious beliefs, on a daily basis, just like any other prisoner who does not have special dietary requirements receives meals on a daily basis. When there is a mistake and the meal is not delivered, or he does not receive part of a meal such as a dessert, he does not want to simply miss out for that day. I further consider that such detail exposes an arguable case under the Act.
It is important not to get distracted by the form or wording of the amended originating application. The substance of the complaint has been pleaded in broad compliance with rule 407B of the Rules, which contains specific requirements for pleadings in human rights proceedings. The question for determination will be whether the conduct of the defendant, through the staff at the AMC, contravenes the Act. If so, the potential remedies are broad.
To the extent that the defendant requires further particularisation of the argument in order to properly respond to it, that is a matter that can be dealt with by way of directions for particulars. However, this is not a pleading of elements of a cause of action, such as one might find in a claim for negligence, and I note that since this application was heard, the plaintiff has attempted to provide further detail through filing what is now a fourth further amended originating application on 23 October 2018.
The defendant separately submitted in support of this ground that the order sought by the originating application would amount to the Court interfering in the day to day administration of the AMC, which the Court should be reluctant to do. That argument has been rejected in Islam for reasons given at [23]-[34].
Costs
Costs are in the discretion of the Court. The defendant’s application has been unsuccessful and there is no reason to depart from an order that costs follow the event, although the extent to which the plaintiff has incurred any properly recoverable costs may be limited.
The parties have each made open offers with a view to resolving the proceedings in their entirety, but as far as I can see, they do not affect the Court’s consideration with regard to this limited aspect of the proceedings.
Conclusion
The orders of the Court will be as follows:
1.The application filed 29 August 2018 is dismissed.
2.The defendant is to pay the plaintiff’s costs of the application.
| I certify that the preceding forty [40] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour, Associate Justice McWilliam. Associate: Date: 23 November 2018 |
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