Islam v Director General of the Justice and Community Safety Directorate (No 2)
[2015] ACTSC 314
•25 September 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Islam v Director General of the Justice and Community Safety Directorate (No 2) |
Citation: | [2015] ACTSC 314 |
Hearing Date: | 21 August 2015 |
DecisionDate: | 25 September 2015 |
Before: | Mossop AsJ |
Decision: | See [58] |
Category: | Interlocutory Application |
Catchwords: | CIVIL PROCEDURE – Application to strike out originating application – proceedings relating to conditions of custody of sentenced prisoner – allegations of breach of Human Rights Act 2004 (ACT) – whether no reasonably arguable cause of action disclosed – originating application struck out in part JUDICIAL POWER – Mandatory orders sought in originating application to facilitate the conduct of civil proceedings by a sentenced prisoner – consideration of inherent power of court to make orders for the purposes of civil proceedings affecting the lawful detention of a sentenced prisoner |
Legislation Cited: | Corrections Management Act 2007 (ACT) ss 7, 9, 53, 128, 129 Court Procedures Act 2004 (ACT) s 7 Supreme Court Act 1933 (ACT) s 20 Australian Capital Territory (Self-Government) Act 1988 (Cth) s 48A Court Procedures Rules 2006 (ACT) rr 40, 425, 1145, 1147, 4050, 5535 |
Cases Cited: | Bropho v Western Australia [2004] FCA 1209 Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 Vatarescu v Commonwealth (2013) 285 FLR 1 |
Parties: | Isa Islam (Plaintiff) Director General of the Justice and Community Safety Directorate (Defendant) |
Representation: | Counsel Self-represented (Plaintiff) Ms N Tarbet and Mr N Hancock (Defendant) |
| Solicitors Self-represented (Plaintiff) ACT Government Solicitor (Defendant) | |
File Number: | SC 186 of 2015 |
Introduction
Isa Islam, a prisoner at the Alexander Maconochie Centre (AMC), has brought proceedings seeking orders against the Director General of the Justice and Community Safety Directorate relating to his detention in that prison. The Director General has brought an application in proceeding seeking to have the plaintiff’s amended originating application dismissed. That application is said to be brought pursuant to r 40(1)(e) and (j) of the Court Procedures Rules 2006 (ACT) (Rules).
The defendant has applied to strike out the originating application. The plaintiff made an application for leave to amend his originating application. In order that the strike out application proceed most efficiently, on 10 July 2015, I granted leave to the plaintiff to file the amended originating application and the defendant’s strike out application was amended on 21 August 2015 so that its target was the amended originating application.
The amended originating application
The orders sought in the amended originating application are as follows:
1.That the defendant … ensure, as far as reasonably practicable that [named custodial officer 1] no longer have professional interactions with the Plaintiff.
2.That the defendant … make arrangements that Officer’s [named custodial officer 1] and [named custodial officer 2] undergo remedial training and are briefed as to proper protocol and procedure within the Alexander Maconochie Centre (AMC) regarding, discrimination, unlawful search and seizure and inmate safety.
3.That the defendant … ensures that Officer [named custodial officer 1] apologise to the plaintiff for the unlawful seizure of his personal property on the 21 April 15.
4.That the defendant … takes reasonable steps to ensure that Corrections Officer’s employed at AMC and civilian contractors (namely the Auswide Projects manager, …) do not breach the Human Rights Act, 2004 by discriminating against, making jokes or inappropriate comments about the Plaintiff concerning the religion of Islam.
5.That the defendant take reasonable steps to remove from the AMC Case Note system unsubstantiated allegations made by Corrections Officers against the defendant that are not supported by evidence or due process.
6. Any other orders that the Court considers appropriate.
Grounds for the application are set out in paragraphs 1 to 3 of the application. Those grounds may be summarised as follows.
Ground 1: The plaintiff alleges that on 21 April 2015, named custodial officer 1 seized (and later returned) personal property (namely one blue plastic A4 protector) without providing a receipt. He asserts that the seizure breached ss 128(1)(a) to (c), 129(1) and (2), 7(c) and 9(a) to (c) of the Corrections Management Act 2007 (ACT) (CM Act) and thereby that the conduct breached ss 8(2) and (3), 10(1)(b) and 19(1) of the Human Rights Act 2004 (ACT) (HR Act).
Ground 2: The plaintiff alleges that on 22 April 2015, named custodial officer 1 let another detainee out of his cell, allowing him and that detainee to mix unsupervised for an undefined period. He asserts that the conduct was contrary to the prison’s standing orders and breached ss 53(1)(c), 7(c) and 9(a) to (c) of the CM Act and, either as a result or independently, ss 8(2) and (3), 10(1)(b) and 19(1) of the HR Act.
Ground 3: The plaintiff alleges that he is a practising Muslim and that there is a documented and clear history of serious issues relating to discrimination and religious vilification by named custodial officer 1, other officers and civilian contractors on the basis of the plaintiff’s religion. The plaintiff alleges that the AMC has known about these issues but not addressed them, and has thereby breached ss 7(c) and (d) and 9(a) to (c) of the CM Act and also ss 8(2) and (3), 10(1)(b), 14(1)(a) and (b), 14(2) and 19(1) of the HR Act.
The defendant’s application
By application in proceeding dated 17 July 2015, amended during the course of the proceedings on 21 August 2015, the defendant seeks an order that the amended originating application dated 15 June 2015 be dismissed.
The grounds of that application are:
1.Order 1 is incapable of proper enforcement, without compromising the proper administration of a correctional centre in accordance with law;
2. Orders 2, 4 and 5 are incapable of proper enforcement by reason of uncertainty;
3.None of the facts asserted, even if proved, are sufficient to constitute a breach of the Corrections Management Act 2007 or Human Rights Act 2004;
4. No cause of action is disclosed that admits of reasonable argument;
5.Any further hearing, and the making and enforcement of the Orders, would involve wastage of public resources and harassment of the defendant.
The plaintiff’s application dated 13 July 2015
The application
By application in proceeding dated 13 July 2015, the plaintiff sought the following interlocutory orders:
1.That the defendant be directed to facilitate PC access in adequate quantities for the plaintiff to engage in sufficient Case Law study to allow his legal self-representation in his Civil (SC 186 of 2015) and Criminal matters (SC [sic] 282 of 2014) before the ACT Supreme Court.
2.That the Current Civil matter (No SC 186 of 2015) be adjourned until the plaintiff has adequate access to Case Law study through a PC to facilitate his effective self-representation.
3. Any other orders the Court considers appropriate.
The plaintiff contended that the hearing of the defendant’s strike out application should be adjourned until he had obtained access to the legal research materials the subject of his application.
During the course of the hearing on 21 August 2015 I heard the application and at the conclusion made an order dismissing the application. I indicated that I would give my reasons later and I now do so.
Reasons for dismissal of the application
In support of his application the plaintiff tendered 11 pages of Detainee Request Forms and also gave oral evidence.
The request forms demonstrated that in April and May 2015 the plaintiff had requested that a personal computer be located in his room and also that he be given unrestricted access to the and Comlaw websites. The requests also included a number of other matters not relevant for present purposes.
The plaintiff gave oral evidence that some weeks previously he was given employment within the prison as a janitor on the minimum pay scale of $35 per week. He gave evidence that on that level of pay he could not afford to rent a computer for $5 per week because of other costs that he had in prison namely textbooks, journal articles, consumables such as pens, paper and postal envelopes and personal toiletry items like shampoo, conditioner and soap. He also said that as a result of his substantial tertiary education, completed whilst in prison, he had a HECS debt in excess of $70,000 and also had an outstanding debt of $30,000 in relation to a “victims of crime” order.
He said that he had been moved from the management section of the prison where he had had better access to a computer because there were only five inmates. He said that he was in a unit where there were 28 inmates and one computer. He said that about a year and a half ago he had been supplied with a computer in his room for a prolonged period at the expense of the management of the prison. He also said that he was currently on the lowest employment rate but if he was able to obtain employment within the prison that gave him $60 or $70 per week then he would be able to afford the $5 per week rental for the computer.
In cross-examination the following evidence was elicited:
(a)even during the 12 to 18 month period when he was not employed at the prison he received $15 per week paid to him by prison management;
(b)the amount he spent on a “buy up” in the prison amounted to around $40 or $50 a month;
(c)the expenditure of the $15 per week involved purchases of discretionary items being either toiletries or the cost of telephone calls associated with his tertiary studies;
(d)he was currently making no repayments of his HECS debt or his obligations under the victims of crime order;
(e)there were a number of outstanding costs orders against him as a result of proceedings previously brought by him;
(f)as a result of proceedings brought against Westpac Banking Corporation he had obtained a cheque for approximately $700 although there was some difficulty with getting access to those monies through the management of the prison.
The plaintiff submitted that not having adequate access to case law would be prejudicial to his proceedings. He submitted that his highly restricted financial circumstances meant that he could not afford to rent a computer at $5 per week. He accepted that if he did rent a computer then he would have access to type="1">
The defendant made the following submissions:
(a)The plaintiff had not identified any breach of the CM Act or of the HR Act and as a consequence the application should be understood as limited to access for the purpose of facilitating the present civil proceedings.
(b)Insofar as the application referred to the plaintiff’s self-representation in criminal proceedings those were separate matters and, having regard to the basis for the application, should not be part of any relief given in this case.
(c)It was entirely within the plaintiff’s discretion to spend his money where he saw fit and it was entirely within his capacity to make the discretionary decision to rent a computer in the period of four to six weeks prior to the hearing when he was employed at $35 per week.
(d)In any event there was, having regard to the nature of the submissions put by the defendant, no need for the plaintiff to have access to a computer in order to address the submissions made by the defendant for the purposes of the strike out application.
In reply the plaintiff pointed to the right to education set out in s 27A of the HR Act and also submitted that it was unreasonable to expect him to be able to represent himself in relation to a complex matter such as this case without access to case law.
The application in proceeding is correctly characterised as an application for an interlocutory order to facilitate the conduct of civil proceedings by a prisoner. It therefore must be distinguished from the situation where criminal proceedings are on foot and the Court has a greater involvement in questions relating to the custody of a person pending a criminal trial or appeal. It must also be distinguished from a case in which the prisoner has a cause of action for final relief to which the interlocutory order sought is ancillary. In other words it must be distinguished from interlocutory relief sought which is related to allegedly unlawful conduct by the detaining authorities which is the subject of a claim for final relief. While the present case does involve an allegation of unlawful conduct by the detaining authorities, the interlocutory relief sought is not directed to any unlawfulness. Rather it is directed to facilitating the conduct of the civil litigation. It is therefore a case where the conduct of the executive government which would be affected by the making of an interlocutory order is lawful conduct in relation to which no allegation of unlawfulness has been made.
The jurisdiction to make any orders relating to the custody of a detained person involved in civil proceedings is limited. As the Court of Appeal pointed out in Johnston, Superintendent of the Belconnen Remand Centre v Eastman [2009] ACTCA 8 at [202]: “There can be no doubt that any superior court has the power to ensure that the processes for the administration of justice are not fatally imperilled.” The Court of Appeal referred to the principles articulated by the High Court in a somewhat different context in Cardile v LED Builders Pty Ltd (1999) 198 CLR 380. Examples of the exercise of the inherent powers of a superior court are provided by the decisions in Tait v The Queen (1962) 108 CLR 620 (an order to prevent the execution of the plaintiff) and Mastipour v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2004) 140 FCR 137 (an order to prevent removal of the plaintiff from the jurisdiction).
In Eastman v Besanko [2009] ACTCA 23 the Court of Appeal said:
5.It is a serious step for a court to intervene in the way in which prisoners under sentence are dealt with in a prison. Serious security and safety issues may arise. It is not an area in which courts have any real expertise or experience.
6.Further, there are likely to be considerable difficulties in anticipating and dealing with the conduct of other prisoners. We have no doubt that the existing orders have caused difficulties for the prison system. However we accept that the Chief Justice considered that they were justified in the circumstances.
7.We accept that the court has an inherent power to ensure that the administration of justice is not unduly impeded by the way in which a prisoner is being detained. As much appears from the decision in Johnson v Eastman [2009] ACTCA 8.
There are also powers in the Rules that relate to the custody of prisoners. Rule 4050 empowers the Court to make, in criminal proceedings, “an order about the continuing custody of a person who is in custody”. Similarly, the Court of Appeal is empowered by r 5535 to make an order in relation to persons appealing against conviction or sentence. An equivalent power in the Federal Court Rules was considered by Miles J in Masoud v The Queen [2000] FCA 435. In that case Miles J said at [14]:
It is to be remembered that both applicants are in custody as a result of the decision of the lawfully constituted tribunal of the Territory. The laws of the Territory as to their continuing custody deserve respect, as does the lawful functioning of the institutions of the Territory that are charged with the responsibility of implementing those laws. In my view, it is not the function of this Court under o 52 r 40 to interfere in the processes of those institutions except so far as may be necessary for the administration of justice in or by this Court. Thus if it were shown that an appeal to this Court from a judgment of a Territory court were to be frustrated or, in a real sense, impeded by the conditions in which a party to the appeal was held in custody, then it may well be that an order as to the custody of that party might be made so that the source of frustration or the impediment might be removed. In other words, o 52 r 40 might be called in aid to ensure that what is sometimes called "due process" is observed.
See also Eastman v The Queen (1997) 72 FCR 190.
The provisions of the Rules do not apply in the present case which is a civil case. They might, however, apply in the Court of Appeal proceedings which are currently on foot relating to a sentence imposed on the plaintiff. On the present application there was no argument about the scope of the Rules and whether the Rules were simply reflective of the inherent power of the Court or whether they involved an expansion of the powers of the Court. Any issue as to whether the Rules go beyond the grant of power to make rules under s 7 of the Court Procedures Act 2004 (ACT) and s 45 of the Legislation Act 2001 (ACT) or whether they need to be read restrictively in order to remain within the scope of that power is not necessary to address in this case.
It is obviously inappropriate to attempt to identify the boundaries of the inherent power of the Court to make orders for the purposes of civil proceedings which affect the custody of sentenced prisoners. Tait is an obvious example of a situation where the making of an order was necessary to protect the subject matter of the judicial process. Mastipour was a case where removal of a plaintiff from the jurisdiction was restrained in circumstances where that removal would, as a practical matter, render it, at the very least, very difficult for the proceedings to be continued. Beyond those kinds of cases where the facts found illustrate a real threat to the processes of the Court, it is not possible to proceed with any certainty.
It is clear however that the power of the Court does not extend to matters of preference, efficiency or convenience to the litigant. Inevitably imprisonment is not preferable for a litigant, impedes the efficiency with which proceedings may be conducted and is undoubtedly less convenient. That does not provide a basis for exercising an exceptional power of the Court to protect its own processes in a manner that interferes with the lawful conduct of the executive government in the execution of a prisoner’s sentence. I emphasise the word “lawful” so as to exclude from what I have said restraints or interferences which are unlawful either by being in contempt of court or otherwise: cf Raymond v Honey [1983] 1 AC 1; Rich v Groningen (1997) 95 A Crim R 272; Commissioner, Corrections Victoria v Knight (2010) 31 VR 567. If there is unlawful conduct then a prisoner may challenge that conduct in properly constituted proceedings and may be able to seek interlocutory relief.
In the present case the evidence established that the plaintiff was able to rent a computer with access to a restricted internet through which he could access free legal materials. During the pendency of these proceedings he has received income through the prison. That has been through employment at the prison for four to six weeks and, prior to that, by reason of unemployment payments.
Although, obviously, the funds available to him are limited, he has made discretionary decisions about how to spend that money and has chosen not to rent a computer at a modest cost. His evidence disclosed that he had prioritised other expenditure including expenditure on his university education over the rental of a computer. In those circumstances, so far as the application relates to the present proceedings (SC 186 of 2015), because of both the limited power of the Court and the facts disclosed on the application there was no basis for making any order compelling the defendant to act in a particular manner in relation to the plaintiff’s access to a personal computer. Insofar as the application relates to SCC 282 of 2014 that case involved a charge of recklessly inflicting grievous bodily harm in relation to which the plaintiff was sentenced to six years’ imprisonment on 14 April 2015. He has now lodged an appeal from that decision, ACTCA 19 of 2015, and I have treated the reference to SCC 282 of 2014 in his application to be a reference to that appeal. As associate judge I have no jurisdiction to make any order in relation to criminal appeals in the Court of Appeal. Any application for orders such as those sought in the present application could only be dealt with in the relevant proceedings and not in these unrelated proceedings.
It was for those reasons that I dismissed the application.
Strike out application
Jurisdictional basis
The basis for the defendant’s application is said to be principally in r 40(1)(e) of the Rules. That provides:
40 Setting aside originating process etc
(1) The court may–
…
(e) set aside an originating process;
The defendant submitted that this provision incorporated the test relevant to the striking out of a pleading under r 425 of the Rules. The defendant submitted that this in turn permitted an originating application to be struck out because:
(a)the claim on its face did not demonstrate the existence of a cause of action; or
(b)the claim involved a collateral purpose or otherwise represented an attempt to harass or annoy the defendant.
In support of the latter contention the defendant cited authorities including Vatarescu v Commonwealth (2013) 285 FLR 1 at [42]-[44]. The discussion there related to whether or not a claim was vexatious for the purposes of r 1147 of the Rules, a rule which only applies to proceedings brought by way of originating claim (see r 1145) and hence is not applicable in the present case.
It is not self-evident that the power in r 40 of the Rules is an appropriate power to rely upon. However, whether there is a power under the Rules or a power pursuant to the inherent power of the Court to control its own processes, in the absence of any detailed argument on the point I proceed on the basis that there is a power to dismiss the proceedings or part of them commenced by originating application if they do not disclose a reasonable cause of action or if they are vexatious.
Submissions
The defendant made a number of submissions in support of the application.
First, the defendant submitted that any allegations of a breach of the CM Act did not give rise to a separate cause of action. That conclusion was reached by reference to the nature of the provisions relied upon and the fact that the relief claimed did not involve damages for breach of any statutory duty but rather involved the Court making mandatory orders.
Second, the defendant submitted that none of the rights under the HR Act identified in the originating application was properly engaged and that in any event any limitation on those rights would be proportionate for the purposes of s 28 of the HR Act.
Third, the defendant said that the allegations of vilification are “unlikely to be made out in the present case, there being no evidence before the Court of a public act inciting hatred, serious contempt for, or severe ridicule of the plaintiff or a group to which the plaintiff belongs, by virtue of his religion.”
Fourth, the defendant submitted that insofar as the plaintiff alleges discrimination “the allegations are capable of being dealt with in existing anti-discrimination law”. That is because pts 2 and 3 of the Discrimination Act 1991 (ACT) (Discrimination Act) and pt 4 of the Human Rights Commission Act 2005 (ACT) (HRC Act) permit an aggrieved person to make a complaint of unlawful discrimination to the Human Rights Commission. The defendant submitted that the Discrimination Act and the HRC Act “establish an exclusive and exhaustive scheme by which allegations of discrimination, on prescribed grounds, may be remedied”.
Fifth, the defendant submitted that:
[W]here the legislature has provided a specific and exclusive statutory scheme to remedy alleged unlawful discrimination, the plaintiff should commence any action for relief under that scheme and should not be permitted to commence proceedings in this Court under the [HR Act] to seek the same relief that might otherwise be available under the [Discrimination Act] and [HRC Act]. Commencement of a proceeding in this Court to seek relief for alleged unlawful discrimination is a collateral means of subverting the exhaustive statutory scheme by which alleged discrimination may be remedied.
The defendant submitted that the inquisitorial process available under the Discrimination Act provided a better process for dealing with complaints of discrimination and was more favourable to the plaintiff because it involved no risk of an adverse costs order. The defendant submitted that where there was an alternative scheme available this Court was not bound to exercise jurisdiction and relied upon the terms of s 20 of the Supreme Court Act 1933 (ACT) to support that contention.
Sixth, the defendant submitted that the Court has in any event a discretion to refuse to grant relief in circumstances where “there has been an absence of real and substantial injustice” or “an absence of any real merit”. The defendant submitted that this is demonstrated by the fact that there is no evidence that the plaintiff has taken steps to invoke the procedures provided by the Discrimination Act and the HRC Act to remedy any unlawful discrimination and “[t]here is no separate utility in continuing proceedings in this Court in respect of any alleged discrimination where the exhaustive statutory scheme provides for a wide range of remedies where a complaint of unlawful discrimination is made out, and expressly provides for the remedies sought by the plaintiff (see, for example, s 53E of the [HRC Act]).”
Consideration
First submission: The provisions of the CM Act relied upon by the plaintiff are:
7 Main objects of Act
The main objects of this Act are to promote public safety and the maintenance of a just society, particularly by—
...
(c) ensuring that detainees are treated in a decent, humane and just way; and
(d) promoting the rehabilitation of offenders and their reintegration into society.
9 Treatment of detainees generally
Functions under this Act in relation to a detainee must be exercised as follows:
(a) to respect and protect the detainee’s human rights;
(b) to ensure the detainee’s decent, humane and just treatment;
(c) to preclude torture or cruel, inhuman or degrading treatment;
...
53 Health care
(1) The director-general must ensure that—
...
(c)conditions in detention promote the health and wellbeing of detainees; and
...
Section 128 of the CM Act identifies the circumstances in which items in the possession of a prisoner may be seized by the defendant. Section 129 imposes a requirement that a written receipt be given for the seizure.
In assessing the plaintiff’s claim it is also relevant to have regard to the terms of the relief sought. There is no claim for damages based on a breach of statutory duty. The action is not one for judicial review. Each of the orders sought is in the nature of a mandatory order. In my view the only arguable basis for relief in the nature of the orders which have been sought is that the relief sought falls within the scope of s 40C(4) of the HR Act which permits the Supreme Court to “grant the relief it considers appropriate except damages”.
Therefore I accept the defendant’s submission that in order to disclose an arguable cause of action, the application must demonstrate an arguable case for relief under the HR Act.
Second and third submissions: The provisions of the HR Act referred to in the amended originating application are:
(a)s 8 Recognition and equality before the law;
(b)s 10 Protection from torture and cruel, inhuman or degrading treatment etc;
(c)s 14 Freedom of thought, conscience, religion and belief;
(d)s 19 Humane treatment when deprived of liberty.
Whether or not those obligations have been breached also involves consideration of s 28 of the HR Act which permits human rights to be subject to “reasonable limits set by laws that can be demonstrably justified in a free and democratic society”.
I am not satisfied that the blue plastic A4 protector allegations give rise to any reasonably arguable breach of ss 8, 10 or 19 of the HR Act. Any removal of property was transitory. Even if there was a contravention of a provision of the CM Act that does not automatically generate any breach of ss 8, 10 or 19. On any ordinary reading of the terms of those sections the temporary removal of a blue plastic A4 protector from a prisoner could not be said, without more, to be arguably a breach of any of those sections.
Similarly, I am not satisfied that the unsupervised mixing allegation gives rise to any arguable breach of ss 8, 10 or 19 of the HR Act. Even assuming, as it is alleged, that the mixing involved a contravention of the standing orders, there is no fact alleged that could bring it arguably within the scope of ss 8, 10 or 19.
The situation is different in relation to the allegations of discrimination and religious vilification. Assuming the allegations made in the originating application are established then there is at least an arguable case of a breach of s 14 of the HR Act. The claims of breaches of ss 8, 10 and 19 are less direct but could not be said to be unarguable. The defendant’s third submission related to what in particular amounted to “vilification” and whether or not that was likely to be made out in the present case. Having regard to the nature of the allegations I do not consider the point to be one appropriately resolved on an application for summary termination.
Insofar as the allegation of a breach of the HR Act relates to discrimination and religious vilification I do not accept the defendant’s submission to the effect that assuming the rights are properly engaged any limitation would be proportionate for the purposes of s 28 of the HR Act. That is a matter which is clearly not appropriate to resolve on any application for summary termination.
Fourth, fifth and sixth submissions: The submissions made by the defendant in relation to the plaintiff’s reliance on the provisions of the HR Act appear to me to be misconceived in two respects.
First, the submission that the Discrimination Act and the HRC Act provide an exclusive regime for dealing with issues of religious discrimination is not correct. The submission of the defendant was not developed by reference to any particular provision of the Discrimination Act or the HRC Act. Rather the defendant relied upon three decisions made under Commonwealth legislation which is in different terms and not analogous to the ACT legislation. Re East; Ex parte Nguyen (1998) 196 CLR 354; Bropho v Western Australia [2004] FCA 1209 and Picos v Australian Federal Police [2015] FCA 118 establish that the regime provided for by pt IIB of the Australian Human Rights Commission Act 1986 (Cth) provides an exclusive regime for remedying unlawful discrimination under three Commonwealth Acts. The defendant submitted that by parity of reasoning the plaintiff’s claim, being one involving religious discrimination covered by the Discrimination Act, could not be brought in the Supreme Court. That submission is, of course, inconsistent with the terms of the plaintiff’s amended originating application which relies upon the HR Act and makes no reference at all to the Discrimination Act. The submissions appeared to be based on the proposition that because of the references in the plaintiff’s claim to discrimination and religious vilification the claim could only be one under the Discrimination Act and not under the HR Act. That is a contention which is not possible to accept having regard to the terms of s 14 of the HR Act which protects freedom of religion including freedom to demonstrate a person’s religion and prohibits coercion in a way that would limit freedom of religious observance and practice. It is perfectly possible for conduct to amount to a contravention of both the Discrimination Act and the HR Act and there is nothing in either Act which prevents a person relying upon the HR Act in proceedings in the Supreme Court in those circumstances.
Second, the fact that the defendant may consider it to be preferable for the plaintiff to have brought his action under different legislation which would result in proceedings before an administrative tribunal is not relevant to an application to summarily terminate proceedings in the Supreme Court. While the Court is not obliged to exercise jurisdiction where it has concurrent jurisdiction with another court or tribunal (see Supreme Court Act1933 (ACT) s 20(2); Australian Capital Territory (Self-Government) Act 1988 (Cth) s 48A(3)) and the Court has stayed proceedings where concurrent proceedings in relation to the same subject matter have been on foot (see Dibeek Holdings Pty Ltd v Notaras (1997) 141 FLR 364) there appears to me to be no proper basis to summarily terminate the plaintiff’s proceedings in this Court. The legislature has made a deliberate choice to permit proceedings to be commenced in the Supreme Court alleging contraventions of the HR Act. No other court or tribunal has concurrent jurisdiction in relation to such proceedings. Any claim brought under the Discrimination Act would be based on a different statutory prohibition to that in relation to which the Supreme Court has jurisdiction and as a result have different subject matter even if some of the facts and legal issues arising in the cases might overlap. Insofar as the defendant’s application is based on r 40(1)(j) of the Rules there is certainly no basis under s 20(2) of the Supreme Court Act 1933 (ACT) or s 48A(3) of the Australian Capital Territory (Self-Government) Act 1988 (Cth) to decline to exercise jurisdiction.
These two misconceptions mean that the fourth, fifth and sixth submissions of the defendant set out above cannot be accepted.
Conclusion
I am satisfied that the blue plastic A4 protector allegations and the unsupervised mixing allegations do not disclose a reasonably arguable cause of action. I will therefore strike out the claims that are identified in paragraphs 1 and 2 of the grounds of the application as well as paragraph 3 in the orders sought which clearly only arises by reason of ground 1.
I will hear the parties as to:
(a)whether the remaining cause of action should be pleaded or whether it can proceed without pleading on the basis of affidavit evidence;
(b)any issue in relation to costs;
(c)any further directions that need to be made.
Orders
The orders of the Court are:
1.The amended originating application for which leave was granted on 10 July 2015 be taken to have been filed.
2.The amended originating application be struck out to the following extent:
i.insofar as it is based on the grounds for the application identified in paragraphs 1 and 2 under the heading “Grounds of application”;
ii.insofar as it seeks order number 3.
| I certify that the preceding fifty-eight [58] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop. Associate: Date: 19 October 2015 |
2
10
10