Matthews v Hargreaves (No.2)
[2010] FMCA 933
•29 November 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MATTHEWS v HARGREAVES (No.2) | [2010] FMCA 933 |
| HUMAN RIGHTS – Alleged discrimination – disability and criminal record – criminal record jurisdiction – other appropriate remedy – inquiry not continued by Australian Human Rights Commission – no jurisdiction for Court to consider complaint. PRACTICE AND PROCEDURE – Joinder of applications – same parties – same discrimination and conduct alleged – dismissal of part of application for want of jurisdiction. |
| Australian Human Rights Commission Act 1986, ss.32(3)(c)(iv), 46PH(1)(i), 46PO(1) Federal Magistrates Act 1999 (Cth), s.45(1) |
| Goodall v Nationwide News Pty Ltd [2007] FMCA 218 Hobson v BWL Pty Ltd [2010] FMCA 722 Matthews v Hargreaves [2010] FMCA 840 |
| Applicant: | KELVIN JOHN MATTHEWS |
| Respondent: | TIMOTHY WYNN HARGREAVES |
| File Numbers: | PEG 144 of 2010 PEG 168 of 2010 |
| Judgment of: | Lucev FM |
| Hearing date: | 29 November 2010 |
| Date of Last Submission: | 29 November 2010 |
| Delivered at: | Perth |
| Delivered on: | 29 November 2010 |
REPRESENTATION
| The Applicant: | In person (by telephone link) |
| The Respondent: | In person (by telephone link) |
ORDERS
That part of the applicant’s application in PEG 168 of 2010 under s.46PO(1) of the Australian Human Rights Commission Act 1986 (Cth) related to alleged discrimination on the basis of criminal record is dismissed.
The applicant file electronically and serve by registered post any affidavits, including all documents, to be relied upon at hearing by 17 January 2011.
The respondent file electronically and serve by registered post any affidavits, including all documents, to be relied upon at hearing by 28 February 2011.
The matter be referred to mediation before a Registrar of this Court, that mediation to occur on or before 28 March 2011, with leave to the parties to initially appear at the mediation by telephone.
In the event that mediation is unsuccessful:
(a)the applicant is to file electronically and serve by registered post:
(i)any further affidavits and documents upon which he intends to rely at hearing; and
(ii)an outline of submissions,
by 26 April 2011;
(b)the respondent is to file electronically and serve by registered post:
(i)any further affidavits and documents upon which he intends to rely at hearing; and
(ii)an outline of submissions,
by 24 May 2011; and
(c)the matter be listed for hearing at 10:15am on 14 and 15 June 2011, in Perth, with both parties required to attend in person.
The costs of today be reserved.
The application in PEG168/2010 be joined with the application in PEG144/2010, with all future papers to be filed in PEG144/2010.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 144 of 2010 & PEG 168 of 2010
| KELVIN JOHN MATTHEWS |
Applicant
And
| TIMOTHY WYNN HARGREAVES |
Respondent
REASONS FOR JUDGMENT
(Ex tempore reasons revised and edited from the transcript)
Introduction – Mr Hargreaves’ queries
This Court exercises the judicial power of the Commonwealth. It does not provide advice to litigants. That is the role of barristers and solicitors.
Self-represented litigants stand in a slightly different position and may be given appropriate procedural direction by the Court. In that respect the Court responds to a number of matters raised by the respondent, Mr Hargreaves, at the outset of his oral submissions, as follows:
a)Mr Hargreaves is accused on the papers, as the Court reads them, and dispensing with the criminal record discrimination matters, of discriminating against the applicant, Mr Matthews, in his capacity as an employee on the grounds of a disability which is disclosed in the papers as hepatitis C. The Court cannot really go any further than that. That is what is revealed on the papers and it is a matter for Mr Hargreaves to read and understand the papers;
b)if there is some issue in respect of which Mr Hargreaves wishes to make an application, for example to have the case summarily dismissed or stayed permanently for an appropriate reason, then it is open for him to make the appropriate application supported by affidavit but that will need to be done in the normal course of events and having regard to the authorities with respect to those issues in this Court;
c)Mr Hargreaves is not charged with anything. This is a civil proceeding under the Australian Human Rights Commission Act 1986 (Cth).[1] It is an application to this Court made under the AHRC Act and it is a civil proceeding in a Commonwealth Court which exercises the judicial power of the Commonwealth;
d)with respect to full disclosure of all documents, the Court will make orders requiring the filing of affidavits, including any documents to be relied upon at the hearing, and so Mr Hargreaves will have, in that regard, documents which are to be relied upon at hearing as part of the affidavit material to be filed by Mr Matthews. If, after Mr Hargreaves has seen that material, there are any issues, it is always open to him to make an appropriate application with respect to disclosure or discovery, bearing in mind that this is a Court which, in the ordinary course of events, does not order discovery, and a Court which is required to be satisfied in the interests of the administration of justice that it is necessary to make the appropriate declaration under s.45(1) of the Federal Magistrates Act 1999 (Cth),[2] and that it is in the interests of the administration of justice;[3]
e)the matter will be programmed through in a series of steps which will see a hearing, probably in June of 2011 with, generally speaking, four to six weeks for each of the steps to take place. So there will be more than adequate notice and more than adequate time to deal with any interlocutory issues which arise;
f)in terms of the detail of the proceeding, it is no different to any other civil proceeding in this Court. It proceeds by way of application and affidavit and goes through to a hearing. Sometimes points of claim are ordered. Generally, where there are self-represented litigants, the Court as presently constituted does not order points of claim to be filed, but orders an outline of submissions to be filed prior to the hearing.
[1] “AHRC Act”.
[2] FM Act.
[3] See Hobson v BWL Pty Ltd [2010] FMCA 722 at paras.6-8 per Lucev FM.
Substantive applications
In matter PEG 168 of 2010, Mr Matthews alleges discrimination on the grounds of disability and criminal record. At the time of the alleged discrimination Mr Matthews was the Chief Executive Officer of the Shire of Shark Bay and Mr Hargreaves was at that time, and remains, a Councillor of that Shire. In respect of the disability discrimination complaint, the notice of termination is attached to the application.
The notice of termination from the Australian Human Rights Commission[4] indicates that the complaint alleging unlawful discrimination under the Disability Discrimination Act 1992 (Cth), has been terminated under s.46PH(1)(i) of the AHRC Act, on the ground that the delegate of the President was satisfied that there was no reasonable prospect of the matter being settled by conciliation. That complaint terminated by the AHRC is a complaint in respect of which an application can be made to this Court under s.46PO(1) of the AHRC Act. With respect to criminal record discrimination, the letter attached to the notice of termination to which the Court has just referred indicates that the AHRC inquiry was not being continued, pursuant to s.32(3)(c)(iv) of the AHRC Act, and says relevantly as follows:
I understand that on 21 October 2007 the Local Government Act 1995 (WA) was amended to provide a complaints system whereby the conduct of an individual Council member can be reviewed. The amendments provide for the establishment of a Standards Panel by the Minister for Local Government to accept complaints by any person alleging that a Council member engaged in minor breaches. The Standards Panel is able to decide whether a Council member has committed a minor breach and to make orders to address the breach, including requiring the Council member to apologise or undertake training. The State Administrative Tribunal is able to review the decisions of the Standards Panel and to make a finding about whether a minor breach occurred.
I am of the opinion that a complaint to the Standards Panel provides you with a more appropriate remedy in relation to the subject matter of your complaint because it provides you with a possibility of an enforceable outcome.
[4] “AHRC”.
And then under a sub-heading of Possible Further Action:
If you think that my decision in relation to your complaint is not legally correct you may apply for a review of the decision by the Federal Court of Australia under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The Court does not review the merits of the case but may refer the matter back to the Commission for further consideration if it finds I was wrong in law or did not exercise my powers properly. You must lodge an application with the court within 28 days of my decision.
In the same circumstances which confronted the Court in Matthews v Hargreaves [2010] FMCA 840,[5] the Court said as follows:
The claim of discrimination on the basis of an alleged or imputed criminal record falls to be determined on a different basis. That is because the complaint with respect to criminal record was terminated by the AHRC on the basis that the AHRC considered that Mr Matthews’ claim had already been adequately dealt with by reason of a complaint to the Department of Local Government, and the inquiry was therefore not continued. There is no indication in the AHRC letter as to what the finding of the Department of Local Government was and it is not evident what remedy, if any, the Department of Local Government was able to afford Mr Matthews, as opposed to imposing some form of punishment or censure upon Mr Hargreaves. However, for present purposes, none of that matters because an AHRC inquiry which is terminated under s.32(3)(c)(iii) of the AHRC Act is not a complaint which has been terminated under s.46PE or 46PH of the AHRC Act, and is not one in respect of which a Notice of Termination under s.46PH(2) of the AHRC Act has been given. It is not therefore a complaint in respect of which an application can be made to this Court alleging unlawful discrimination. It is not, therefore, a matter which is within the jurisdiction of the Court to determine. It is not therefore an application, insofar as it concerns criminal record, which has any prospect of success at all. It therefore does not constitute or amount to an arguable case. It follows that the application insofar as it relates to alleged discrimination on the basis of an alleged or imputed criminal record must be dismissed.[6]
[5] “Matthews (No. 1)”.
[6] Matthews (No. 1) at para.23 per Lucev FM, with footnotes from the original text omitted.
The same result must follow here, not so far as it relates to the question of prospect of success at all because that issue is not raised in these proceedings, but rather simply by reason of the fact that the Court does not have jurisdiction to deal with the criminal record complaint by reason of the manner in which it was disposed of by the AHRC. The Court not having jurisdiction, it is appropriate, therefore, to dismiss that part of the application dealing with criminal record.
Joinder of applications
In respect of the disability discrimination applications which are before the Court, the Court has indicated to the parties that it would be appropriate, in the Court’s view, that matters PEG 144 of 2010 and PEG 168 of 2010, both alleging that there was discrimination by Mr Hargreaves against Mr Matthews in his capacity as an employee of the Shark Bay Shire Council, be joined. The disability alleged in both of those complaints is the same. The conduct complained of is, essentially, the same and the capacities of the parties who are identical is also the same, and the remedies sought are, essentially, the same. It is, therefore, appropriate that the two applications be joined and that they be joined in application PEG 144 of 2010. There will be an order accordingly and all future papers should be filed as if they were in matter PEG 144 of 2010.
The Court has indicated to the parties that it considers it appropriate that there be mediation in this matter and that the mediation be by telephone. And the Court will make orders accordingly. It is, of course, always open to a Registrar, having conducted mediation by telephone, to then make some other arrangements with the parties.
Further, as the Court indicated to the parties, the Court proposes that any hearing of this matter be in Perth and that the parties be required to attend in person in Perth. The Court was of that view and the parties do not appear to be of any different view. It is clear that the matter is a contentious one. It is a matter which will require cross-examination on documents by each of the parties of the other party, and it is a matter in respect of which credit will be in issue.
Based on considerations expressed in Goodall v Nationwide News Pty Ltd,[7] the Court does not consider that this is an appropriate situation, unlike in Goodall, for the matter to be the subject of a video conference hearing. The Court also notes, as it indicated to the parties, that there are certain difficulties with a video conference linkup with Christmas Island to conduct a hearing, and the Court certainly takes the view that this type of hearing is not an appropriate one to be conducted by telephone. There will be an order accordingly that any hearing be in Perth and that the parties attend in person.
[7] [2007] FMCA 218.
Those are the Court’s reasons for judgment with respect to the further orders that it now proposes to make. And those orders are as follows:
(1) That the applicant file, electronically, and serve by registered post, any affidavits, including all documents to be relied upon at hearing, by 17 January 2011.
(2) That the respondent file, electronically, and serve by registered post, any affidavits, including all documents to be relied upon at hearing, by 28 February 2011.
(3) That the matter be referred to mediation before a Registrar of this Court that mediation to occur on or before 28 March 2011, with leave to the parties to initially appear at the mediation by telephone.
(4) In the event that mediation is unsuccessful;
(a) the applicant to file, electronically, and serve by registered post;
(i) any further affidavits and documents;
(ii) an outline of submissions,
by 26 April 2011; and
(b) the respondent to file, electronically, and serve by registered post;
(i) any further affidavits and documents;
(ii) an outline of submissions,
by 24 May 2011; and
(c) the matter be listed for hearing at 10.15am on 14 and 15 June 2011, in Perth with both parties required to attend in person.
(5) That the costs of today be reserved.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Lucev FM
Date: 1 December 2010
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