Mason & Anor v Methodist Ladies College
[2009] FMCA 570
•17 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MASON & ANOR v METHODIST LADIES COLLEGE | [2009] FMCA 570 |
| HUMAN RIGHTS – Disability discrimination – education. PRACTICE AND PROCEDURE – Application for transfer of proceedings to Federal Court – factors to be considered. |
| Declaration of the Rights of the Child Declaration on the Rights of Disabled Persons Disability Discrimination Act 1992 (Cth) Disability Standards for Education 2005 (Cth) Federal Magistrates Act 1999 (Cth), s.39(1), (2), (3)(a)-(d) and (6) Federal Magistrates Court Rules 2001 (Cth), r.8.02(4)(a)-(e) Human Rights and Equal Opportunities Commission Act 1986 (Cth) International Covenant on Civil and Political Rights Trade Practices Act 1976 (Cth), ss.52 and 87 |
| Construction, Forestry, Mining and Energy Union v Clarke (2007) 156 FCR 291; [2007] FCAFC 8 Deputy Commissioner of Taxation v Cumins [2007] FMCA 1841 Genovese v BGC Constructions Pty Ltd [2006] FMCA 1507 Verge & Anor v Devere Holdings Pty Ltd & Ors (No.4) [2008] FMCA 1421 |
First Applicant: Second Applicant: | ANDREW PHILLIP MASON (AS NEXT FRIEND FOR JULIETTE MASON) ANDREW PHILLIP MASON |
| Respondent: | METHODIST LADIES COLLEGE |
| File Number: | PEG 82 of 2009 |
| Judgment of: | Lucev FM |
| Hearing date: | 17 June 2009 |
| Date of Last Submission: | 17 June 2009 |
| Delivered at: | Perth |
| Delivered on: | 17 June 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms P. Giles |
| Solicitors for the Applicant: | Crossing Family Lawyers |
| Counsel for the Respondent: | Mr M.E. Jensen |
| Solicitors for the Respondent: | Lavan Legal |
ORDERS
These proceedings be transferred to the Federal Court, pursuant to s.39 of the Federal Magistrates Act 1999 (Cth).
The costs of today be costs in the proceedings transferred to the Federal Court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 82 of 2009
| ANDREW PHILLIP MASON (AS NEXT FRIEND FOR JULIETTE MASON) |
First Applicant
ANDREW PHILLIP MASON
Second Applicant
And
| METHODIST LADIES COLLEGE |
Respondent
REASONS FOR JUDGMENT
(Revised and edited from the transcript)
Application
This is an application made by the first applicant on 10 June 2009 in relation to a claim on behalf of an infant applicant under the Disability Discrimination Act 1992 (Cth)[1] in relation to disability discrimination in the provision of educational services, and by the second applicant in relation to a claim against the respondent for damages, compensation and orders pursuant to s.87 of the Trade Practices Act 1974 (Cth),[2] and also a claim in contract for alleged breach of contract by the respondent, which is a well-known Perth private college.
[1] “DD Act”.
[2] “TP Act”.
An application has been made, as it ought properly be made at the first court date, for transfer of the proceedings to the Federal Court of Australia.[3] That application is made by the applicants and the respondent neither consents nor opposes that application. Counsel for the applicants has referred me to this Court’s reasons for judgment in Genovese v BGC Constructions Pty Ltd[4] dealing with the principles in relation to transfer of matters from this Court to the Federal Court. The making of an order to transfer proceedings from this Court to the Federal Court has also been the subject of other judgments of this Court, as presently constituted, in which Genovese has been followed, and the Court refers specifically to Cumins’[5] case and Verge (No. 4),[6] both of which were, unlike Genovese, transferred to the Federal Court.
[3] “Federal Court”.
[4] [2006] FMCA 1507 (“Genovese”).
[5] Deputy Commissioner of Taxation v Cumins [2007] FMCA 1841 (“Cumins”).
[6] Verge & Anor v Devere Holdings Pty Ltd & Ors (No.4) [2008] FMCA 1421 (“Verge No. 4”).
Consideration of factors
The making of an order to transfer proceedings is discretionary under s.39(1) and (2) of the Federal Magistrates Act 1999 (Cth)[7] and the order, as counsel for the applicants has pointed out, is not one which is able to be appealed.[8] There are certain mandatory factors which the Court is required to take into account and those factors are outlined in s.39(3)(a)-(d) of the FM Act. Part of the consideration of the Court also involves a consideration of those factors outlined in r.8.02(4)(a)- (e) of the Federal Magistrates Court Rules 2001 (Cth).[9]
[7] “FM Act”.
[8] FM Act, s.39(6).
[9] “FMC Rules”.
In relation to this matter there are no, as the Court understands it, pending proceedings in an associated matter in the Federal Court and indeed, it would appear that the matter was originally sought to be filed in the Federal Court, but because of the concurrent jurisdiction of this Court, the matter was filed in this Court rather than the Federal Court.
In terms of the sufficiency of the resources of this Court to hear and determine the proceeding there would, in the Court’s view, be no issue that this Court has sufficient resources to hear and determine the matter at some point in time in this year.
Of critical importance in this case is a question of general importance, and in Genovese the Court outlined some situations where a question of general importance might arise.[10]
[10] Genovese at para.13 per Lucev FM.
A question of general importance might arise where, for example, the issue to be determined is of general importance to the public at large, or a significant class of persons, or type or series of cases. In this case, it appears to be, and the Court accepts counsel for the applicants’ contention, which is not disputed by counsel for the respondent, that there are no relevant cases in relation to disability discrimination in education which go to the application of the Disability Standards for Education 2005 (Cth),[11] which were published for the first time in August of 2005.
[11] “the Standards”.
Those Standards obviously are important in the context of the obligations of educational institutions to students with disabilities. The question of general importance which therefore arises in relation to that matter is in relation to that class of students with disabilities to whom the Standards apply, and it may be that there is, in fact, a subclass of children with the particular disability that the first applicant has, to which that issue of general importance might apply.
The issue of general importance includes the alleged right of disabled persons and disabled students to be educated in accordance with those Standards, in both the State and private school systems. The Court is therefore satisfied that, in the circumstances of this case, there is an issue of general importance to be determined in relation to a class of persons, namely students with disabilities, or a class or classes of students with disabilities, and particularly with autism, in relation to the application of the Standards.
The Court does not think it is necessary on the evidence to deal with the question of whether or not this case relates to the revenues of a Commonwealth or State. There is some indication in the papers that there is expenditure of Commonwealth or State revenues in relation to the matter, but it is not sufficiently significant to warrant further consideration by the Court in the context of this case.[12]
[12] Contrast Cumins where the “extraordinary amount of money owing to the Commonwealth by an individual non-corporate taxpayer” (more than $38 million) was sufficient to warrant transfer to the Federal Court: Cumins at paras.4 and 47 per Lucev FM.
In relation to whether significant human rights issues are at stake in this particular matter, the Court accepts that it is a matter in relation to which there are applicable International Conventions annexed to the Human Rights and Equal Opportunities Commission Act 1986 (Cth),[13] and which may be called in aid to interpret both the HREOC Act and the DD Act, read in conjunction with the applicable Standards. In general terms it is manifest that there are here significant human rights issues at stake in relation to disability discrimination in education and the rights of students with disabilities to be afforded the services of educational institutions.
[13] “HREOC Act”: Schedule 2 - International Covenant on Civil and Political
In relation to the proper construction of the legislation, the Court, as indicated earlier, accepts the contention from counsel for the applicants that there is no law reported in relation to the application of the relevant Standards, and that in conjunction with the provisions of the HREOC Act and DD Act, that an issue as to the proper construction of the legislation might arise.
It is clear also that this is an area of law, as counsel for the applicants put it with an air of understatement, that is not without its complexities. That is likely to apply also in relation to the question of the application of the Standards in relation to the question of indirect discrimination in this case.
The Court also takes into account that in this case there are claims by the second applicant in relation to alleged contraventions of the TP Act, s.52: misleading and deceptive conduct, and also a claim in contract alleging a breach of the contract between the second applicant and the respondent for the provision of education services to the first applicant.
Those matters might, without more, have been matters which, had they stood alone and without the disability discrimination claim, have remained in this Court, but given that they are probably intertwined, if not inextricably, certainly to a considerable extent with the claim made on behalf of the first applicant, they do add to the complexity of the matter overall. The Court is satisfied that in terms of a question of general importance, for the reasons outlined above, there are questions of general importance involved in this particular matter.
The issue of costs and convenience of a hearing determination is probably relatively neutral. Given the nature of the FMC Rules and the manner in which the Federal Court is likely to deal with this matter, there is probably no significant difference in terms of the convenience of a hearing and determination. There may be some difference in terms of cost, but that is a difference which the parties will have to bear, and, at least the applicants appear, by virtue of this application, to be willing to bear, although no observations were made about that and certainly from a costs point of view, no observations were made by the respondent either. But in all of the circumstances, the Court does not consider that a transfer of the matter to the Federal Court will increase the costs in relation to the matter to such an extent that a transfer to the Federal Court ought to be disallowed.
It follows from what has just been said that it is likely that in terms of the hearing of these proceedings that, whilst the matter might come on a little earlier in this Court, it can be anticipated from this Court’s understanding of the Federal Court lists as they presently stand, that there would not be a significant difference in terms of the time in which the Federal Court might hear the matter. In any event, given the nature of the matter, it is a matter which the Federal Court would be likely to bring on earlier rather than later.
As to the availability of particular procedures appropriate for the class of proceedings, it also follows from what has just been said in relation to the FMC Rules, the procedures adopted by the Federal Court and the fact that there is generally concurrent jurisdiction between both the Federal Court and this Court in relation to human rights’ proceedings, that there is nothing in relation to the availability of particular procedures which would rule either for or against a transfer in this case.
In relation to the wishes of the parties: the applicant wishes to have the matter transferred, the respondent’s position is neutral.
The interests of the administration of justice must also be considered as the Court observed in Genovese; that is, the interests of the management of a particular matter within the justice system. In that regard, the Court takes into account specifically the fact that if the matter is heard in this Court it is likely to take the same amount of time, adopt similar procedures, but be less costly than would be the case in the Federal Court. Balanced against that is the fact that if the Federal Court makes a determination in relation to the matter, the weight of that determination for future purposes is likely to be more authoritative and, in relation to the particular proceedings, the Court also has to take into account the possibility of the matter being appealed. If the matter were to be appealed from this Court in a human rights matter it is probable that the appeal would be heard by a single judge of the Federal Court, although it could also go to a Full Court of the Federal Court.[14] In those circumstances, it is possible that there would be additional steps in the process by reason of an appeal to a single judge of the Federal Court and then possibly on to a Full Court of the Federal Court, for although a single judge on appeal sits as a Full Court, the possibility of “further” appeal to the Full Court of the Federal Court in those circumstances is distinctly raised by CFMEU v Clarke.[15]
[14] See generally, Federal Court of Australia Act 1976 (Cth), ss.24-25.
[15] (2007) 156 FCR 291; [2007] FCAFC 8.
The Court therefore considers that the interests of the administration of the management of justice are better served if the matter is heard at first instance by a single judge of the Federal Court because the judgment of that Court will carry more weight and more authority, and might result in one less step in any appeal process.
The Court observed earlier that the application has been made at the first court date and that that is in conformity with the FMC Rules.
Conclusion
In conclusion therefore, having taken account of all of the factors outlined, and all the factors it is both necessary for the Court to take into account, or can take into account upon a discretionary basis, the Court, principally by reason of the fact that the matter raises a question of significant general importance and of some complexity, has determined that it is appropriate to exercise its discretion by ordering a transfer of these proceedings to the Federal Court.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Lucev FM
Deputy Associate: S. Dinon
Date: 18 June 2009
Rights; Schedule 3 - Declaration of the Rights of the Child; and Schedule 5 - Declaration on the Rights of Disabled Persons. (“International Conventions”).
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