Macras v Victoria Police
[2018] FCCA 1908
•26 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MACRAS v VICTORIA POLICE | [2018] FCCA 1908 |
| Catchwords: PRACTICE AND PROCEDURE – Where Respondent applies for matter to be summarily dismissed pursuant to s.17A(2) of the Federal Circuit Court of Australia Act 1999 (Cth) or r.13.10 of the Federal Circuit Court Rules 2001 (Cth) – where Applicant has no reasonable prospect of success – where defects in Applicant’s claims will not be cured by amendment or repleading – where Applicant’s approach to litigation has been spurious – where Applicant has filed and served 11 statements of claim – matter summarily dismissed without leave to replead – subpoenas issued set aside. |
| Legislation: Australia Human Rights Commission Act 1986 (Cth) s.46PO |
| Cases cited: Adnunat Pty Ltd v ITW Constructions Systems Australia Pty Ltd [2009] FCA 449 Dye v Commonwealth Securities Ltd (No 2) [2010] FCA 817 Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531 George Fletcher (Trustee) [2010] FCAFC 53 J & A Vaughan Super Pty Ltd (Trustee) v Becton Property Group Limited [2014] FCA 581 Luck v University of Southern Queensland [2014] FCAFC 135 Penhall-Jones v New South Wales [2007] FCA 925 Purvis v State of New South Wales(Department of Education) [2003] HCA 62 Robinson v Commissioner of Police, NSW Police Force [2012] FCA 770 Qualify Me Pty Ltd v Get Qualified Australia Pty Ltd [2016] FCA 192 |
| Applicant: | STEPHEN MACRAS |
| Respondent: | VICTORIA POLICE |
| File Number: | MLG 851 of 2017 |
| Judgment of: | Judge McNab |
| Hearing date: | 10 April 2018 |
| Date of Last Submission: | 10 April 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 26 July 2018 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondent: | Mr Tran |
| Solicitors for the Respondent: | Victorian Government Solicitor’s Office |
ORDERS
The application filed 27 April 2017 be summarily dismissed.
The Applicant’s proceedings be struck out without leave to replead.
The subpoenas that have been issued in the proceeding will be set aside.
The proceedings be removed from the Pending Cases List.
The Applicant pay the costs of the Respondent fixed in the sum of $35,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 851 of 2017
| STEPHEN MACRAS |
Applicant
And
| VICTORIA POLICE |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter comes before the Court by way of an application filed
27 April 2017 alleging that the Applicant suffered unlawful discrimination under s.46PO of the Australia Human Rights Commission Act 1986 (Cth) (‘the Act’).
The Respondent filed an application in a case on 19 March 2018 seeking that:
a)An order be made under r.13.10 of the Federal Circuit Court Rules 2001 (Cth) or under s.17A of the Federal Circuit Court of Australia Act 1999 (Cth), that the proceeding be stayed or dismissed.
b)In the alternative, an order striking out the Applicant’s points of claim document that was attempted to be filed 12 February 2018 or alternatively an order withdrawing the leave to file the points of claim given in orders made by Judge Jones on 9 January 2018.
c)
An interlocutory order staying compliance with the subpoena issued by the Applicant directed at Victoria Police, filed
20 February 2018, until further order.
d)Costs.
Chronology
On 5 November 2015, the Applicant was driving his car when he was intercepted by officers of Victoria Police, who requested that he undertake a preliminary breath test and preliminary oral fluid test (‘the interception’). The police officers informed the Applicant that testing had indicated the presence of illicit drugs and that the Applicant was required to take a secondary oral fluid test pursuant to r.17 the Road Safety Rules 2009 (Vic). The Applicant refused to take the oral fluid test and was advised that he would receive a summons for breach of the Road Safety Rules 2009.
Around 7 November 2015, the Applicant made a complaint to the Professional Standards of Police Command Victoria (‘PSPC’) regarding the interception of 5 November 2015.
In a psychological report dated 17 March 2016, the Applicant was diagnosed with Autism Spectrum Disorder by Dr Miriam Latif, a qualified psychologist. The Applicant identifies this condition as a disability.
On 22 September 2016, the Applicant submitted a complaint to the Australian Human Rights Commission (AHRC) against Victoria Police for alleged discrimination on the basis of disability. The complaint alleged the discrimination had taken place during the interception of the Applicant by Victoria Police on 5 November 2015 and the investigation of his complaint made to PSPC around 7 November 2015. This application was later amended to make a complaint against the Magistrate’s Court of Victoria.
On 8 February 2017, as noted in a letter from Chief Magistrate
Lauritsen dated 14 February 2017, the charges made against the Applicant relating to the interception were withdrawn. At the hearing on 10 April 2018, counsel for the Respondent submitted that this was due to a technical error involving statements made by officers.[1]
[1] Transcript of proceedings, Macras v Victoria Police (Federal Circuit Court, MLG851/2017, Judge McNab, 10 April 2018) 41.
On 20 April 2017, the AHRC terminated the complaint.
On 27 April 2017, the Applicant commenced his application in this Court.
On 17 May 2017, a directions hearing was held. At this hearing, the Magistrate’s Court of Victoria and the State of Victoria were removed as respondents in this matter.
On 9 July 2017, points of claim were filed by the Applicant.
On 9 August 2017, points of defence were filed by the Respondent.
On 11 August 2017, a directions hearing was held and procedural orders for trial were made.
On 15 December 2017, the Applicant was arrested by police prior to a hearing in this matter listed in the Federal Circuit Court that day. He was charged with offences relating to allegedly sending threatening correspondence directed at the Victorian Government Solicitor’s Office (‘VGSO’). These charges are pending. The VGSO appeared at the hearing and requested an adjournment and the hearing was adjourned to 9 January 2018.
At the interlocutory hearing on 9 January 2018 further procedural orders were made.
Issues
At the hearing on 9 January 2018, Judge Jones ordered that the Applicant was to file points of claim by 25 January 2018. The Applicant attempted to file on 12 February 2018, however the Federal Circuit Court Registry would not initially accept the points of claim filed electronically as the file was too large. This document was eventually accepted in hardcopy. The points of claim run to 326 paragraphs over 106 pages.
In his outline of submissions filed 6 April 2018, the Applicant sought orders against:
a)Victoria Police;
b)the Independent Broad-Based Anti-Corruption Commission (‘IBAC’);
c)the Roads Corporation;
d)the Department of Justice and Regulation;
e)the Attorney-General of Victoria;
f)the VGSO;
g)Monash Health;
h)the State of Victoria;
i)the Magistrate’s Court of Victoria;
j)Chief Magistrate Peter Lauristen;
k)Magistrate Rodney Crisp;
l)Magistrate Bob Kumar;
m)Magistrate Franz Johann Holzer;
n)Magistrate Peter Mealy;
o)Magistrate Timothy Gattuso;
p)Magistrate Gerard Leithbridge;
q)Louise McNeil, Solicitor at the VGSO;
r)Catherine Roberts, Managing Principal Solicitor at the VGSO;
s)Marlo Baragwanath, Solicitor at the VGSO;
t)Taylor Penrose, Registrar of the Magistrate’s Court of Victoria Frankston;
u)Andrew Kogan, Registered Nurse at Monash Health;
v)Ellen Akomeah, Nurse at Monash Health;
w)Davod Creighton, Constable of Victoria Police;
x)Paul Fraser, Constable of Victoria Police;
y)Lauren Downer, Senior Constable of Victoria Police;
z)Danielle Buswell, Senior Constable of Victoria Police;
aa)Dave Watson, Leading Senior Constable of Victoria Police;
bb)Max Popelliars, Leading Senior Constable of Victoria Police;
cc)John Ellison, Leading Senior Constable of Victoria Police;
dd)Steve Hemmingway, Detective Senior Constable of Victoria Police;
ee)Scott Stinchcomb, Detective Senior Constable of Victoria Police;
ff)Mark Anthony Garrett, Detective Senior Constable of Victoria Police;
gg)Bernard Dowling, Detective Senior Constable of Victoria Police;
hh)Peter Morris, Detective Senior Constable of Victoria Police;
ii)Matthew Stuber, Detective Sergeant of Victoria Police;
jj)Alistair Hanson, Detective Sergeant of Victoria Police; and
kk)the Crown and any agent, employee, authority, officer or person acting on behalf of or under power conferred by the Crown.
The Applicant sought orders including that:
a)the parties named be found to be in contempt of court;
b)an injunction be granted against the Crown and any agent, employee, authority, officer or person acting on behalf of or under power conferred by the Crown to prevent them from:
i)approaching;
ii)interacting with;
iii)coming near;
iv)remaining near;
v)following;
vi)communicating with;
vii)taking action against; and
viii)commencing or continuing proceedings against the Applicant;
or subjecting the Applicant to:
ix)surveillance;
x)warrants;
xi)penalties, punishment or infringements; and
xii)any other conduct with directly or indirectly, knowingly or unknowingly, intentionally or unintentionally, mistakenly or purposefully, negligently, recklessly or otherwise that may be, is likely to or does cause the Applicant any detriment whether foreseeable or not; and
c)orders requiring the Respondents to comply with the subpoena issued by the Applicant on 9 February 2018.
The Applicant seeks damages, including aggravated damages in the sum of $24,692,335.55.
The Applicant has also sought that the VGSO be restrained from acting for the Respondent in this matter.
In their submissions dated 3 April 2018, the Respondent identified five issues for determination at this stage:
a)whether the Applicant should be given leave to rely on his points of claim, or whether they should be struck out and/or summarily dismissed;
b)whether a contempt of this Court has occurred as a result of the arrest of the Applicant on 15 December 2017;
c)whether the subpoena issued to the Respondent by the Applicant should be set aside;
d)whether the VGSO should be restrained from acting for the Respondent and/or be referred to any disciplinary body; and
e)what other orders should be made.
Claims and submissions of the Applicant
The Applicant, as noted in the affidavit of Marlo Baragwanath filed on behalf of the Respondent on 16 April 2018, has filed a series of different applications and submissions. This affidavit details all of the Applicants submissions and pleadings (which total 326 pages of material). The points of claim that were attempted to be filed on
12 February 2018 will be taken to be the final points of claim, and supersede any previous submissions.
The final points of claim filed are too lengthy to reproduce here, totalling 106 pages and 326 paragraphs. The Respondent has sought to have these claims struck out with no leave to replead, as the claims are vague and embarrassing, or beyond the scope of the original complaint made to the AHRC.[2]
[2] Australian Human Rights Commission Act 1986 (Cth) s.46PO.
Are the claims now made beyond the scope of the complaint made to the AHRC?
Section 46PO of the Act provides:
(1) If:
(a) a complaint has been terminated by the President under section 46PE, paragraph 46PF(1)(b) or section 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.
[…]
(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.
The Applicant sought to join a number of parties to the proceeding that were not included in the original complaint made to the AHRC. I accept the submission of the Respondent that the Applicant is unable to join IBAC, the Department of Justice, the Roads Corporation, the Attorney General of the Victoria, Monash Health, the VGSO and the State of Victoria, by means of operation of ss.46PO(1) and (3) of the Act.
The claims against the Magistrate’s Court of Victoria and the individual Magistrates named cannot proceed because of the operation of s.14(1) of the Magistrate’s Court Act 1989 (Vic). That section provides that:
(1)A magistrate has, in the performance of his or her duties as a magistrate, the same protection and immunity as a Judge of the Supreme Court has in the performance of his or her duties as a Judge.
The Applicant submits that the individual Magistrates named were not acting in the course of their duties, and therefore the immunity under
s.14(1) does not apply. This must be rejected; no evidence has been filed which would support a finding that the Magistrates named were not clearly acting within the proper scope of their judicial and administrative duties in their dealings with the Applicant and his case, and have immunity from a suit arising from these actions.[3] Further, a judicial officer discharging their functions cannot be the subject of an action under the Disability Discrimination Act 1992 (Cth) (‘DDA’): Luck v University of Southern Queensland [2014] FCAFC 135 [41].
[3] Towie v Victoria [2008] VSC 177 [59], [64].
The claims made against the Magistrate’s Court of Victoria must also be dismissed. The DDA applies to legal persons,[4] and it has been established as a rule of statutory interpretation that a Court cannot be a ‘person’ unless this is explicitly stated within the legislative instrument.[5] Further, any results of the Magistrate’s conduct, including the suspension of the Applicant’s licence, cannot be the subject of a claim as this was the result of discharging their judicial functions.
[4] See eg Disability Discrimination Act 1992 (Cth) ss.5, 6.
[5] Kizon v Palmer (1997) 72 FCR 409, [430] – [431].
For the aforementioned reasons, I dismiss any part of the application relating to the Magistrate’s Court of Victoria or any of its officers pursuant to r.13.10 of the Federal Circuit Court Rules 2001.
The Applicant has no reasonable prospect of successfully prosecuting this aspect of his claim.
Pursuant to s.46PO(3) of the Act, the claims of the Applicant must be limited to those originally brought before the AHRC. The claims that are made by the Applicant alleging a breach of the DDA that are different in substance to those raised before the AHRC cannot be pursued and must be struck out: Dye v Commonwealth Securities Ltd (No 2) [2010] FCA 817 at [43]. The claims of the Applicant must also be time limited to issues that occurred up until he submitted his amended complaint to the AHRC in March 2017; he is not able to raise claims of discrimination that relate to any conduct by the Respondent after this point: Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531[35].
Further, those claims made by the Applicant that raise criminal or tortious allegations are not within its jurisdiction and cannot be dealt with by this Court. Those particular claims made by the Applicant must be struck out.
Claims within the scope of the original AHRC complaint
The Applicant’s relevant claims, which the Respondent admits may be within jurisdiction and the subject of the original complaint to the AHRC are extracted from the Applicant’s points of claim and summarised as follows:
a)On 5 November 2015, Victoria Police:
i)intercepted the Applicant and the interception amounted to direct discrimination; and
ii)engaged in indirect discrimination by requesting the Applicant take an oral fluid sample test;
b)Around 7 November 2015, the Applicant made a complaint to the PSPC about the incident on 5 November 2015. The conduct of the PSPC investigation directly discriminated against the Applicant; and
c)The Applicant alleged that the issuing of a summons to appear at the Magistrate’s Court and suspension of his licence amounted to:
i)direct discrimination; and
ii)indirect discrimination.
Particulars made in original AHRC complaint
The Applicant submits that Victoria Police:
a)
engaged in discrimination against and/or harassed him by refusing him access to Discovery Road, Dandenong South and/or his vehicle as a ‘premises’ under s.23 of the DDA. This is due to the Applicant being intercepted and stopping for police and then the Applicant being requested by police not to drive his car for
12 hours;[6]
[6] Victoria Police, ‘Response – Human Rights’, Submission in Macras v Victoria Police, MLG851/2017, 11 May 2017, 22.
b)engaged in discrimination against him while in the course of providing a service under s.24 of the DDA. The Applicant submitted before the AHRC that the police were providing a ‘service’ to the community when they intercepted him. He further submitted that they ‘refused to provide him with adequate services and altered the terms on which they provided [him] the services’;[7]
c)harassed him pursuant to s.39 of the DDA by;
i)intercepting him;[8]
ii)by suspending his licence; and
d)victimised him pursuant to s. 42 of the DDA by;
i)subjecting him to detriment because he asserted his rights under the Act or the DDA; [9] and
ii)suspending his licence.
[7] Ibid, 41.
[8] Ibid.
[9] Ibid.
Relevant legislation
Sections 5, 6, 8 and 9 of the DDA relevantly provide:
Section 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.
Section 6Indirect 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.
[…]
Section 8 Discrimination in relation to carers, assistants, assistance animals and disability aids
(1)This Act applies in relation to having a career, assistant, assistance animal or disability aid in the same way as it applies in relation to having a disability.
Example: For the purposes of section 5 (direct discrimination), circumstances are not materially different because of the fact that a person with a disability requires adjustments for the person's carer, assistant, assistance animal or disability aid (see subsection 5(3)).
(2)For the purposes of subsection (1), but without limiting that subsection, this Act has effect in relation to a person with a disability who has a carer, assistant, assistance animal or disability aid 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 the carer, assistant, animal or aid; and
(b)each other reference to a disability were a reference to the carer, assistant, animal or aid.
Section 9 Carer, assistant, assistance animal and disability aid definitions
(3)For the purposes of this Act, a disability aid , in relation to a person with a disability, is equipment (including a palliative or therapeutic device) that:
(a)is used by the person; and
(b)provides assistance to alleviate the effect of the disability.
Summary judgment principles
The Respondent has made an application for this matter to be summarily dismissed pursuant to either s.17A(2) of the Federal Circuit Court of Australia Act 1999 (Cth) or r.13.10 of the Federal Circuit Court Rules 2001 (Cth). These provisions provide that the Court may dismiss any claim where it is satisfied that the party prosecuting the claim has no reasonable prospect of success.
In Adnunat Pty Ltd v ITW Constructions Systems Australia Pty Ltd,[10] Sundberg J examined the application of an analogous provision,
[10] [2009] FCA 449.
s.31A of the Federal Court of Australia Act 1976 (Cth). The principles extracted are (citations omitted):
·in applying s.31A, the court does not conduct fact finding but must assess the strength of the allegations made by reference to the pleadings, affidavits and any other evidence adduced, in order to determine whether the claim is sufficiently strong to warrant a trial;
·ultimately, the court must consider whether there are any real, as opposed to fanciful, issues of fact or law that require proper determination at a trial;
·in assessing whether there are reasonable prospects of success, the court should draw all reasonable inferences (but only reasonable inferences) in favour of the non-moving party. Moreover, where the evidence on a summary judgment application is of an ambivalent character, there will be a real issue of fact and therefore reasonable prospects of success for the purposes of s.31A;
·the moving party bears the onus of persuading the court that its opponent has no reasonable prospects of success. However, where the moving party establishes a prima facie case for summary judgment, the opposing party must be able to point to “specific factual or evidentiary disputes that make a trial necessary”; and
·as s.31A requires in effect a prediction as to the outcome of a claim, the court should be more reluctant to summarily dismiss a claim where real questions of fact and credit arise. In those cases, the court will not have all material evidence before it until trial, the credit of important witnesses will not have been tested and it will as a consequence be very difficult if not impossible to fairly assess the prospects of the claim.[11]
[11] Ibid [38].
Some additional principles include that:
a)when determining an application for summary judgment, it is permissible to depart from only examining pleadings and review materials such as affidavits and other evidence;[12]
b)to have no reasonable prospect of success, a proceeding does not need to be hopeless or bound to fail;[13] and
c)a summary dismissal may be justified where, amongst other things, there is evidence of a fact fatal to the case which cannot be or is not answered by the responding party.[14]
Discrimination claims against Victoria Police
[12] George Fletcher (Trustee) [2010] FCAFC 53 [74] – [76] per Ryan and Logan JJ; J & A Vaughan Super Pty Ltd (Trustee) v Becton Property Group Limited [2014] FCA 581 [8]; Qualify Me Pty Ltd v Get Qualified Australia Pty Ltd [2016] FCA 192 [26].
[13] Unpaid Systems Ltd v Telstra Corporation Limited [2016] FCAFC 158 [46].
[14] Ibid [47].
Interception claim
The Applicant submitted that the interception by police on
5 November 2015 amounted to direct discrimination on the basis of his disability, direct discrimination on the basis of his disability aid and/or indirect discrimination.[15]
[15] Stephen Macras, ‘Points of Claim’, Submission in Macras v Victoria Police, MLG851/2017, 12 February 2018, [42].
Direct discrimination on the basis of disability
It is unclear on what basis that the Applicant alleges that the officers engaged in this conduct due to his disability. In response to correspondence from the AHRC regarding the complaint, Victoria Police stated the reason that the Applicant was intercepted was due to driving with his fog lights on in inappropriate conditions.[16] The Applicant refuted on a number of occasions that he had been pulled over in relation to his fog lights, as he was travelling in the same direction as the police vehicle. He submitted that this meant they could not have seen his lights,[17] but the statements of the intercepting officers indicated that he performed a U-turn in front of them.[18] This would have allowed them to perceive whether he had his fog lights on, and resolves any alleged inconsistencies in the police statements.[19]
[16] Stephen Macras, ‘Additional document’, Submission in Macras v Victoria Police, MLG851/2017, 10 May 2017, 3.
[17] Victoria Police, ‘Affidavit of Marlo Braganawath’, Submission in Macras v Victoria Police, MLG851/2017, 3 April 2018, 24.
[18] Stephen Macras, ‘Affidavit’, Submission in Macras v Victoria Police, MLG851/2017, 23 March 2018, 83, 85.
[19] Victoria Police, ‘Affidavit of Marlo Braganawath’, Submission in Macras v Victoria Police, MLG851/2017, 3 April 2018, 24, 48, 107, 179 – 181.
I accept the oral submission of counsel for the Respondent that the police officers who intercepted the Applicant could not have done so on the basis of his disability, or an outward manifestation of it. The Applicant’s Autism Spectrum Disorder, as a communication disorder, cannot be apprehended without some interaction with the Applicant. It is not possible that the police officers intercepted the Applicant because of his disability as they could not have been aware of any disability before interacting with him.
Direct discrimination on the basis of his disability aid
The Applicant submits that the interception was directly discriminatory as it was based on the make and model of his car making him appear to be a ‘hoon’. He alleges the car is a disability aid under s 9 of the DDA because he drives it to calm down after having meltdowns, a symptom of his Autism Spectrum Disorder. In oral submissions, the Respondent did not cavil with the submission that the Applicant’s car could be a disability aid, under the DDA, but sought to make a factual distinction on the basis that officers could not have known the car was a disability aid.[20]
[20] Transcript of proceedings, Macras v Victoria Police (Federal Circuit Court, MLG851/2017, Judge McNab, 10 April 2018) 16 - 21.
The appropriate test, with reference to ss.5 and 8 of the DDA is whether, because of his disability and because of the use of his car as a disability aid, the police treated the Applicant less favourably than the police would treat a person without that car in circumstances that are not materially different. This test requires an evaluation of the treatment in the context of the acts or behaviours that were undertaken by the person subject to the alleged discrimination: Purvis v State of New South Wales(Department of Education) [2003] HCA 62 [222]–[224]. The circumstances are that the Applicant performed a U-turn in front of police in an area that was being monitored for ‘hoon activity’. It cannot be said that the police would have treated another car differently if it had performed a U-turn in an area being monitored. In my view, regardless of the response to the use of the car (whether as a motor vehicle or as a motor vehicle which is a disability aid) that has performed that manoeuvre, the police would have intercepted the vehicle. There is no evidence that the police intercepted the car because it was being used as a disability aid and this claim has no reasonable prospects of success.
Indirect discrimination on the basis of disability
The Applicant submits that Victoria Police engaged in indirect discrimination under s.6 of the DDA by requesting that he undertake an oral fluid sample test.
The Applicant has not particularised this claim in a manner that can be readily apprehended. The Applicant has also failed to produce any evidence that the request to undertake an oral fluid test caused a disadvantage to him. As outlined in the response of the Respondent to the AHRC,[21] the testing procedures carried out by the police on
5 November 2015 were routine and are applied to all persons intercepted. The nature of the Applicant’s disability is a communication issue; it is not clear how the requirement to accompany the police for a further test interacts with the Applicant’s disability. In the statements of the two intercepting officers, they describe the Applicant initially agreeing to testing and then refusing, the reason given by the Applicant being ‘human rights’.[22] This was confirmed in the Applicant’s own complaint to the AHRC.[23] There is no conflict on the evidence regarding the issue of what reason the Applicant gave for refusing to be tested. Based on this, it does not appear that the Applicant did not comply with the requirement because of his disability, but because of his belief that it was his ‘human right’ not to comply.
[21] Stephen Macras, ‘Additional document’, Submission in Macras v Victoria Police, MLG851/2017, 10 May 2017, 3.
[22] Stephen Macras, ‘Affidavit’, Submission in Macras v Victoria Police, MLG851/2017, 23 March 2018, 87.
[23] Termination letter
The Applicant has submitted that the police could have made reasonable adjustments for his disability by following his request to take him to a police station instead of the testing vehicle.[24] He fails however to particularise how this would have alleviated disadvantage to him, and further how the police could have decided to make a reasonable adjustment when they did not perceive the Applicant as having a disability.[25] The Applicant had in fact not been diagnosed with Autism Spectrum Disorder until consulting a psychologist on 23 February 2016.[26] The Applicant undertook this consultation the purposes of attaining a psychological report and assessment for his case in the Magistrate’s Court over the charges against him relating to the interception of 5 November 2015.[27] It appears unreasonable to expect that the police officers should have been on notice to make reasonable adjustments when the Applicant himself was unaware at that stage that he had a disability and the officers did not perceive that he had a disability.
[24] Stephen Macras, ‘Points of Claim’, Submission in Macras v Victoria Police, MLG851/2017, 12 February 2018, [54(c)(iv)(1)].
[25] Stephen Macras, ‘Additional document’, Submission in Macras v Victoria Police, MLG851/2017, 10 May 2017, 3.
[26] Affidavit 21 March 2018, 57
[27] Ibid.
For the above reasons, a claim on the basis of discrimination under the DDA regarding the Applicant’s interception by Victoria Police has no reasonable prospect of success and should be dismissed pursuant to
r.13.10 of the Federal Circuit Court Rules 2001. Due to the failure of the Applicant to meet the threshold requirement of discrimination having occurred as defined under the DDA, it is unnecessary to deal the remaining elements of his claims under ss.23 and 24 of the DDA.
As discrimination cannot be made out, any claims under ss.23 and 24 also have no reasonable prospect of success and are dismissed pursuant to r.13.10 of the Federal Circuit Court Rules 2001.
Harassment
The Applicant claims that the interception was harassment under s.39 of the DDA. In order for this claim to be made out, it must be established that Victoria Police were providing a ‘service’[28] to the Applicant when the alleged harassment occurred. As noted by the AHRC, it was established in Robinson v Commissioner of Police, NSW Police Force [2012] FCA 770 that police in pursuit of a suspect will not be considered to be providing a service as it is not helpful or beneficial to the suspect.[29] I find that the interception on 5 November 2015 was similarly not an instance where police were providing services, and for that reason this claim has no reasonable prospect of success, and must be dismissed pursuant to r.13.10 of the Federal Circuit Court Rules 2001.
[28] DDA s 39.
[29] [86] – [95].
Victimisation
The Applicant claims that the Respondent victimised him for asserting his rights during the interception pursuant to s.42 of the DDA.
He submits that his statement that he was refusing the oral fluid test on the basis of ‘human rights’ was sufficient to constitute an assertion of rights.[30] Victimisation under s.42 of the DDA can only occur where the Applicant suffers detriment caused by an assertion of rights under the Act or the DDA. The Applicant submits numerous detriments and damages have been caused by his alleged assertion of rights, including but not limited to:
[30] Stephen Macras, ‘Originating Application’, Submission in Macras v Victoria Police, MLG851/2017, 27 April 2017, 20.
a)the suspension of his licence;[31]
[31] Points of claim, [101].
b)charging the Applicant;[32]
[32] Ibid.
c)the loss of an 8 year relationship;[33]
[33] Ibid [275].
d)his chances of having a family again;[34]
[34] Ibid [276].
e)the loss of his career;[35]
[35] Ibid [279].
f)his owing a debt of $120,000, which accrues 30% interest per annum ‘which he was forced to incur by the conduct of the Respondents where he had no income and required credit cards to survive’;[36]
[36] Ibid [280].
g)psychological ill health including:
i)anxiety disorders;
ii)depression disorders;
iii)post-traumatic stress disorder;
iv)obsessive compulsive disorders;
v)agoraphobia; and
vi)other undisclosed illnesses;[37]
[37] Ibid [282].
h)‘torture’ as defined by the United Nations;[38]
[38] Ibid [282].
i)inability to accept or follow directions, expectations, standards, rules or laws directed by the police, government or society;[39]
[39] Ibid [289].
j)two ruined birthdays;[40]
[40] Ibid [295].
k)three ruined Christmases;[41]
[41] Ibid [296].
l)three ruined New Year’s celebrations;[42]
m)severed ties with:
i)family over arguments relating to the proceedings;
ii)friends and colleagues over arguments relating to the proceedings;[43]
n)several unsuccessful suicide attempts;[44]
o)‘having to deal with an ex-girlfriend driven hysterical by all this misconduct directed at the Applicant’;[45]
p)increasing his cigarette consumption to over 30 per day due to stress;[46] and
q)fostering in the Applicant a ‘religious belief …that he is an individual and does not have to listen to what any other person says, no matter how large their majority is that is saying it…’[47] which ‘will likely see the Respondents and Applicant before the Court many times over…’.[48]
[42] Ibid.
[43] Ibid [297] – [298].
[44] Ibid [303].
[45] Ibid [307].
[46] Ibid [315].
[47] Ibid [323].
[48] Ibid [324].
I note that in an affidavit filed 9 March 2018, the Applicant seeks damages, including aggravated damages in the sum of $224,692,335.55.
In order to prove detriment has occurred as a result of the Applicant’s assertion of rights, causation must be established. This test was outlined in Penhall-Jones v New South Wales[49] by Buchanan J who stated that:
Accordingly the authorities are unified in their approach that the ground or reason relied upon to establish breach of the relevant legal obligation need not be the sole factor but it must be a substantial and operative factor. At least one circumstance from the list in s.42(2) of the Act must be a reason for the alleged detriment or threatened detriment. It must afford a rational explanation, at least in part, ‘why’ an action was taken. The connection cannot be made by a mere temporal conjunction of events, by an incidental but non-causal relationship or by speculation.[50]
[49] [2007] FCA 925.
[50] Ibid [85].
That the Applicant made an alleged assertion of his rights cannot be said to have been a substantial and operative factor here. The Applicant merely saying ‘human rights’ with no further comment in response to why he refused to take the oral fluid test is not sufficient to constitute having ‘reasonably asserted’ his rights under the Act or the DDA for the purposes of s.42. The Applicant refused to undertake an oral fluid test; this is the reason that the police suspended his licence and issued him with a summons. Any detriment that flowed from the interception of the Applicant by Victoria Police was caused by the Applicant’s own decisions, not from having told the police officers that they were infringing upon his rights under the Act or the DDA.
I find that this claim has no reasonable prospect of success and therefore must be summarily dismissed pursuant to r.13.10 of the Federal Circuit Court Rules 2001.
Investigation claim
The Applicant claims that the conduct of the investigation of his complaint over the interception, made around 7 November 2015, was directly discriminatory. In his points of claim, the Applicant makes reference to the provision of services and denial of access to public places in his particulars to this allegation, but does not outline which section of the DDA he alleges has been breached. It is assumed, given the particulars, that the Applicant is alleging direct discrimination under ss.23 and 24 of the DDA.
Though it is arguable that the PSPC investigation is a ‘service’ under s.23 of the DDA, as with the claims regarding harassment, discrimination as defined under the DDA is a threshold issue. The same issue arises for discrimination allegedly arising out of s.24 of the DDA. There is nothing put before me by the Applicant to indicate that the conduct of the investigation could be considered discriminatory in any way.
License claim
The Applicant claims that his being summoned to appear at the Magistrate’s Court and the suspension of his licence by Victoria Police constituted direct and indirect discrimination.[51] It is clear that the Respondent treated the Applicant no more unfavourably than any other person in the position of the Applicant. The summons and the licence suspension were the result of the Applicant having refused to provide an oral fluid test. The withdrawal of the charges does not demonstrate they were discriminatory; the withdrawal was the result of a procedural error, not a substantive issue with the charges. As I have found above that the interception was not discriminatory, it follows that the resulting summons and suspension of the Applicant’s licence cannot be discriminatory under ss.5, 6, 23 or 24 of the DDA. Accordingly, this claim should be dismissed pursuant to r.13.10 of the Federal Circuit Court Rules 2001 as it has no reasonable prospects of success.
[51] Stephen Macras, ‘Points of Claim’, Submission in Macras v Victoria Police, MLG851/2017, 12 February 2018, [95] – [96].
I am of the view that all of the Applicant’s claims have no reasonable prospects of success and that the defects in those claims will not be cured by amendment or repleading.
Application for a finding of contempt
The application filed on 8 January 2018 for a finding of contempt against those persons and bodies referred in [17] above made by the Applicant was dismissed during the hearing on 10 April 2018. I found that that application had no reasonable prospect of success and should be summarily dismissed.[52] Evidence was filed by the Applicant regarding his arrest on 15 December 2017, which arose from the Applicant being charged with offences, including use of a carriage service in a manner which a reasonable person would regard as menacing. This conduct was engaged in during extensive communications between the Applicant and the VGSO. Affidavits were filed by each of the arresting officers. They denied that the arrest was for the purpose of interfering with court proceedings. The hearing listed before Judge Jones on 15 December 2017 was adjourned at the request of the Respondent, and the Applicant’s capacity to prosecute his claims has not been affected (save for the adjournment of the directions hearing). The Applicant sought to have contempt findings made against each of the proposed joined parties, including the entire police department, a Registrar of the Magistrates’ Court, and a registered nurse at Monash Health. I formed the view that the claims in relation to contempt could not succeed and should not proceed further.
[52] Federal Circuit Court Rules 2001 (Cth) r.13.10(a).
Should there be leave to replead?
I am also of the view that the Applicant’s approach to litigation, including filing multiple lengthy and irrelevant affidavits and making unmeritorious claims that take up valuable court resources and time, both in the courtroom and in the registry, should not be allowed to continue. The Applicant has had the benefit of a referral to pro bono counsel and he has previously privately engaged a solicitor, all of whom have been unable to assist him.
The Applicant has also had many opportunities to articulate his claims. He has filed and served about 11 statements of claim and subjected the VGSO to a torrent of correspondence and communication.[53]
[53] See Marlo Braragwanath, ‘Affidavit’, Submission in Macras v Victoria Police, MLG851/2017, 15 March 2018.
Accordingly I strike out the whole of the Applicant’s proceedings without leave to replead. It follows that subpoenas that have been issued in the proceeding will also be set aside.
Conclusion
I order that the Applicant pay the Respondent’s costs. I see no reason to depart from the general rule that costs follow the event. I will hear submissions on costs.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge McNab
Date: 26 July 2018
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