Maslaukas v Qld Nursing Council (No.2) - [2008] FMCA 216

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MASLAUKAS v QUEENSLAND NURSING COUNCIL

[2008] FMCA 216

HUMAN RIGHTS – Amicus curiae – whether Acting Disability Discrimination Commissioner should be granted leave to appear.

Disability Discrimination Act 1992 (Cth) ss.5, 19
Federal Magistrates Court Rules 2001 (Cth)
Human Rights and Equal Opportunity Commission Act 1986 (Cth) ss.46PO, 46PV

Access forAll Alliance (Hervey Bay) Incorporated v Hervey Bay City Council [2006] FCA 1214
Kabushiki Kaisha Sony Computer Entertainment v Stevens (2001) 116 FCR 490
Levy v State of Victoria and Others (1997) 189 CLR 579

Applicant:

DARINA JOSEPHINE MASLAUKAS

Respondent:

QUEENSLAND NURSING COUNCIL

File Number:

SYG 3151 of 2007

Judgment of:

Barnes FM

Hearing date:

20 February 2008

Delivered at:

Sydney

Delivered on:

20 February 2008

REPRESENTATION

Solicitor for the Applicant:

G. A. Guthrie

Counsel for the Respondent:

Ms. P. Thew

Solicitors for the Respondent:

Rodgers Barnes and Green

Solicitor for the Amicus Curiae:

Ms. M. Barbaro

ORDERS

The Acting Disability Discrimination Commissioner be granted leave to appear as amicus curiae in the proceedings and to make written and oral submissions.
The parties serve all documents filed in the proceedings that have not been previously provided, on the Acting Disability Discrimination Commissioner.
The matter be listed for directions before me at 9.30am on Wednesday, 16 April 2008.
In the event that the present solicitor for the applicant is still the solicitor for the applicant on Wednesday, 16 April 2008 he may participate in the directions hearing by way of telephone link to the number (02) 6654 1988.
The costs of today be reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3151 of 2007

DARINA JOSEPHINE MASLAUKAS

Applicant

And

QUEENSLAND NURSING COUNCIL

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

In these proceedings the applicant alleges that there was unlawful discrimination by the respondent within the Disability Discrimination Act 1992 (Cth). On 14 February 2008 the Acting Disability Discrimination Commissioner (the Commissioner) filed an application in a case in this matter seeking to appear as amicus curiae to assist the Court in relation to the issues identified in the affidavit of Graham Gordon Innes (the Commissioner) dated 8 February 2008. It was clarified in oral submissions today that the order sought was that the Commissioner be granted leave to appear as amicus curiae in the proceedings and to make oral and written submissions.
The applicant consented to such an order being made. The respondent sought that the leave to appear and assist the Court as amicus curiae be limited to matters already addressed in the substantive written submissions of the Commissioner in relation to issues raised by the respondent's application for summary dismissal and the applicant's application for leave to proceed out of time. It was submitted that the amicus curiae should not be permitted to make submissions in relation to other matters that may arise in these proceedings.
Section 46PV of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (HREOC Act) gives the Commissioner, as a special-purpose Commissioner, the function of assisting the Federal Court and the Federal Magistrates Court as amicus curiae in proceedings in which the Commissioner thinks that the orders sought, or likely to be sought, may affect to a significant extent the human rights of persons who are not parties to the proceedings; proceedings that, in the opinion of the Commissioner, have significant implications for the administration of the relevant Act or Acts; or proceedings that involve special circumstances that satisfy the Commissioner that it would be in the public interest for the Commissioner to assist the Court as amicus curiae.
The Commissioner seeks leave to appear on the basis that this proceeding meets each of these provisions. The affidavit of the Commissioner deposes to his opinion and satisfaction in each of these respects and as to his relevant experience and ability to assist the Court.
Nonetheless for the Commissioner to appear amicus curiae the leave of the Court is required under s.46PV(2). (Also see Chapter 5 of the Federal Magistrates Court Rules in relation to the Court granting leave to a special-purpose Commissioner to assist the Court in a proceeding).
The basis on which an amicus curiae will be heard has been considered in other contexts. As Brennan CJ stated in Levy v State of Victoria (1997) 189 CLR 579 the footing on which an amicus curiae is heard “is that that person is willing to offer the Court a submission on law or relevant fact which will assist the Court in a way in which the Court would not otherwise have been assisted” (and see Kabushiki Kaisha Sony Computer Entertainment v Stevens (2001) 116 FCR 490 at [11] – [16] per Sackville J).
The amicus curiae functions conferred on the Commissioner and other special-purpose Commissioners under the HREOC Act are an acknowledgement by parliament that the Court can obtain useful assistance from Commissioners (see Access forAll Alliance (Hervey Bay) Incorporated v Hervey Bay City Council [2006] FCA 1214). The respondent does not dispute that some assistance from the Commissioner as amicus curiae is appropriate. The issue is whether the scope of such assistance should be limited.
The question of whether the Commissioner should be heard in this instance arises at an early stage in the proceedings. The applications that are presently being considered by the Court are an application to apply out of time (see s.46PO(2) of the HEROC Act) and an application for summary dismissal. It is not yet possible to know whether the matter will proceed to final hearing or, if it does, the extent of matters that might be raised and on which the Court would be assisted by submissions of the Commissioner appearing on an amicus curiae. The proffered assistance is to be assistance by way of submissions.
I consider that it is not appropriate to limit the Commissioner’s assistance on an amicus curiae basis to the making of submissions which relate only to those matters raised already addressed by the Commissioner in relation to the leave and summary dismissal applications. I have had regard to the matters deposed in the affidavit of the Commissioner, his opinion as to the manner in which the orders sought may affect to a significant extent human rights of persons not party to the proceeding and the broader general issues raised, in particular in relation to the breadth of application of the Disability Discrimination Act 1992 (Cth) as well as whether s.19 of that Act has effect in relation to certain State bodies. Some of the issues raised have implications for the ability of others to bring complaints alleging disability discrimination and to have their complaints proceed to a full hearing. While I am called upon to address these matters in relation to an application for leave and an application for summary dismissal at this stage, the final determination of such matters may be a matter for the final hearing.
It also appears that there is an issue in relation to the appropriate test to determine the comparator for the purposes of the Disability Discrimination Act 1992 which may have implications in other cases.
Other matters on which the Commissioner may assist the Court may become apparent in the future, particularly if both parties are not legally represented. It appears that this is a possibility, as the applicant is seeking review of a decision not to grant her legal aid in relation to these proceedings.
In all of the circumstances I consider that it is likely that the Court will be assisted significantly, not only at this preliminary stage but also (if the matter proceeds to a final hearing) at the hearing by the assistance of the amicus curiae as contemplated under the HREOC legislation. It is, of course, always open to counsel for the respondent to object if it is felt that the amicus curiae's submissions stray outside the scope of what assistance an amicus curiae can appropriately offer to the Court or if any significant cost or delay issues arise. Indeed that was acknowledged by counsel for the Commissioner.
I consider that it is appropriate to make the order sought on the wider basis, giving leave to the Commissioner to appear as amicus curiae in the proceedings and to make oral and written submissions.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 7 March 2008