Meyer v Holt
[2002] FMCA 125
•27 June 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MEYER v HOLT & ANOR | [2002] FMCA 125 |
| PRACTICE & PROCEDURE – Disability discrimination – summary disposal – claim against Master of Supreme Court of Tasmania – claim against advocate – no prospect of success. |
Re East and Ors; ex parte Nguyen (1998) 196 CLR 354, [1998] HCA 73
Giannarelli v Wraith (1991) 171 CLR 592
| Applicant: | JOHN ANDREW MEYER |
| First Respondent: | MASTER STEPHEN HOLT |
| Second Respondent: | TIMOTHY JOHN WILLIAMS |
| File No: | HZ 10 of 2002 |
| Delivered on: | 27 June 2002 |
| Delivered at: | Melbourne (telephone link to Hobart) |
| Hearing Date: | 3 June 2002 |
| Judgment of: | Phipps FM |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the First Respondent: | Mr Ellis |
| Solicitors for the First Respondent: | Director of Public Prosecutions, Hobart |
| Counsel for the Second Respondent: | Mr Gunson |
| Solicitors for the Second Respondent: | Gunson Williams |
ORDERS
The application filed 6 March 2002 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
HZ 10 of 2001
| JOHN ANDREW MEYER |
Applicant
And
| MASTER STEPHEN HOLT |
First Respondent
And
| TIMOTHY JOHN WILLIAMS |
Second Respondent
REASONS FOR JUDGMENT
The Applicant alleges that he has been discriminated against by each Respondent within the meaning of the provisions of the Disability Discrimination Act 1992.
Mr Meyer was the Respondent in an application in the Supreme Court of Tasmania to have a caveat he had lodged over some land in Tasmania removed. He is deaf in one ear and therefore suffers from a disability.
In the Supreme Court proceeding, call-overs were conducted on
13 October 2000 and 2 November 2000, both by videolink. The First Respondent, who is the Master of the Supreme Court of Tasmania, conducted the hearings sitting in Hobart. The Second Respondent was the solicitor appearing for the Applicant in the Supreme Court proceedings. He appeared before the Master in Hobart. The Applicant and the Respondent in the Supreme Court proceedings appeared by videolink in Launceston.
The Respondents have applied for summary disposal of the application pursuant to rule 13.10 of the Federal Magistrates Court Rules 2001. Rule 13.10 provides:
The court may order that a proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding, if it appears to the court that in relation to the proceeding or claim for relief;
(a) no reasonable cause of action is disclosed; or
(b) the proceeding is frivolous or vexatious; or
(c) the proceeding is an abuse of the process of the court.
The First Respondent’s summary disposal application was based originally on two grounds as follows:
(a)This court having no jurisdiction to entertain it, it is thereby one in which no reasonable cause of action is disclosed or it is frivolous or vexatious;
(b)The Applicant having at all times acted as Master of the Supreme Court of Tasmania, and thereby enjoying immunity from suit, it is one in which no reasonable cause of action is disclosed or it is frivolous or vexatious.
At the hearing of the summary disposal application the First Respondent was granted leave to add an additional ground:
(ab) There being no substance in the complaint made to the Human Rights and Equal Opportunity Commission, the application is vexatious and an abuse of the process of this Honourable Court.
The Second Respondent relied upon the First Respondent’s allegation of lack of substance and in addition the following grounds:
a)Section 46PO of the Human Rights and Equal Opportunity Commission Act 1986 provides that if a complaint is terminated in accordance with that section any person who was an affected person in relation to the complaint may make an application to the Federal Magistrates Court alleging unlawful discrimination by one or more of the Respondents to the terminated complaint. The Second Respondent was not a Respondent to the terminated complaint and therefore it was submitted there was no jurisdiction in the court.
b)Since the Second Respondent was appearing as an advocate acting in court he enjoyed common law immunity.
Mr Ellis, who appeared for the First Respondent, did not pursue the original two grounds of the application. The first ground was not pursued because it was rendered nugatory by legislative change. The Human Rights and Equal Opportunity Act by section 6(1) used to provide expressly that it did not bind the Crown in right of a state. That position was reversed by the Human Rights and Equal Opportunity Commission Amendment Act 2002. Section 2 of that Act gave the amendment retrospective operation. It provides:
This act is taken to have commenced on 13 April 2000.
Mr Ellis expressly stated that he did not seek to argue whether, under the Commonwealth of Australia Constitution, the Human Rights and Equal Opportunity Act and the Disability Discrimination Act could apply to a judicial officer of a Supreme Court of a State when that judicial officer was exercising the jurisdiction of the Court. Nor did he seek to argue whether, as a matter of interpretation, the Act and the Disability Discrimination Act applied to the Supreme Court of a State or a judicial officer of the Supreme Court of a State. Notices had not been given pursuant to section 78B of the Judiciary Act 1903, a requirement if these matters were to be argued.
However, Mr Ellis did note the decision of the High Court in Re East and Ors; ex parte Nguyen (1998) 196 CLR 354, [1998] HCA 73. In that case the Applicant sought certiorari to quash a decision of the Magistrates Court of Victoria committing the Applicant to the County Court of Victoria, and to quash the sentence subsequently imposed by the County Court on the ground that the procedures of those courts were contrary to section 9(1A) of the Racial Discrimination Act 1975 and the Convention on the International Covenant on Civil and Political Rights. At page 365-366 the court said:
... there is a well-established immunity from suit which protects judicial officers from actions arising out of acts done in the exercise of their judicial function or capacity. There is nothing in the act which suggests that it was the intention of parliament to override that immunity.
If the interpretation issue had been argued, it may be that this statement of the High Court would give the answer.
The First Respondent, therefore, relied only upon the argument that there was no substance in the claim. The central principle is that a summary order which prevents a party from pursuing a claim according to the ordinary course of procedure should be made only in a very clear case: Dey v Victorian Railways Commissioner (1949) 78 CLR 62 at 91; General Steel Industries Ltd v Commissioner for Railways (1964) 112 CLR 125; Salemi v Minister for Immigration and Ethnic Affairs (1976) 137 CLR 388.
Section 46PO of the Human Rights and Equal Opportunity Commission Act provides for applications to the Federal Magistrates Court alleging unlawful discrimination. Subsection 46PO(3) provides:
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’s complaint to the Human Rights and Equal Opportunity Commission was lodged electronically on 9 August 2001. The complaint concerned call-overs in the Supreme Court on 13 October and 2 November 2000, both conducted by the First Respondent. The Applicant alleges that he could not hear properly and so was disadvantaged.
The Applicant has placed before the court transcripts of a number of hearings not on the two relevant dates. His complaint to the Commission is confined to events on 13 October and 2 November. Events on the other dates and therefore the transcripts are irrelevant.
Following the call-over on 19 October the Applicant wrote to the Chief Justice of the Supreme Court of Tasmania. The Chief Justice responded on 27 October 2000. In that, he pointed out that the video-link call-overs were purely administrative in nature and that their sole purpose was to receive confirmation that the relevant matter was ready for hearing. The Chief Justice in that letter said that it was the Master's intention to have the substantive application heard in Launceston (or Hobart if the parties agreed to that course) on a date which would be fixed on 2 November.
There is no transcript of the call-over on 19 October but there is of the call-over on 2 November 2000.
The Applicant complains of direct discrimination. The relevant section is Sub section 5(1) of the Disability Discrimination Act 1992. It provides:
For the purposes of this act, a person ("discriminator") discriminates against another person ("aggrieved person") on the ground of a disability of the aggrieved person if, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.
From the Applicant’s affidavit material and his letter to the Chief Justice it appears that he believed on 13 October that substantive applications were fixed for hearing on 2 November. It also seems that a Registrar of the Court may have been under the same impression and communicated that to the Applicant. In fact, that was not the case. The hearing on 13 October was a call-over and the matter was listed for mention again at a call-over on 2 November.
The Applicant complains that because of the conditions at Launceston, he could not hear. If that was the case, he was not affected in any way by what occurred on 13 October. The administrative process taking place on 13 October was repeated on 2 November. Any disadvantage the Applicant may have suffered on 13 October was rectified by the Chief Justice's letter which corrected any misunderstanding the Applicant may have had and the subsequent hearing on 2 November. The only disadvantage that the Respondent could have suffered on
13 October was a misunderstanding of the nature of the proceeding and what occurred in the proceeding. That misunderstanding was corrected. The application would not have been dealt with differently on 13 October had the Applicant not misunderstood. The Applicant was not treated less favourably than a person without his deafness disability.
The transcript of 2 November shows that the Applicant was not treated less favourably than a person without a deafness disability. The Applicant was not discriminated against. The transcript shows that the Master ensured that the Applicant could hear the Second Respondent appearing as solicitor. The transcript shows that the Applicant heard and understood all that the Master said. It shows that the Master was dealing with the fixing for hearing of a summary judgment application by the Applicant. The Second Respondent foreshadowed an application to strike out a counterclaim if there was still one before the Court. It shows that the Master would not deal with any substantive arguments, including a substantive procedural argument, namely whether in fact there was a counter-claim before the Court. He made it clear that that and all other substantive matters would be dealt with at the hearing. He then adjourned the application for mention on 23 November. No other orders or directions were given. The transcript shows that Mr Meyer heard and understood that it was adjourned for mention on 23 November.
Mr Meyer, in his submissions, put it that hearing is different from comprehending. The transcript shows that he did understand and did comprehend what was being said by both the Master and the Second Respondent on 2 November. It is, in my view, clear beyond argument that the Applicant was not treated less favourably than a person without his hearing disability. There is therefore no prospect of the application succeeding.
A further submission by Mr Ellis was that the Master was not responsible for the sufficiency of the arrangements made for the hearing, namely the videolink. That was the responsibility of the Registrar or other court officer or officer responsible for videolinks. There is no evidence of how and by whom videolinks are administered. I do not consider that I can rely on my own or any general understanding of how Courts are administered. I do not consider this ground is established as a basis for summary dismissal, but it does not affect what I have already said.
Mr Gunson, for the Second Respondent, adopted the submissions which were put on behalf of the First Respondent. He also submitted that the Second Respondent was appearing as solicitor in a court room in Hobart and had nothing to do with the conditions under which the videolink to Launceston was conducted. Similarly, there is no prospect of a claim succeeding against the Second Respondent.
A more fundamental problem with the claim against the Second Respondent is the failure to meet the requirements of Sub section 46PO(1). That provides:
If:
(a) a complaint has been terminated by the president under section 46PE or 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 Magistrates Court, alleging unlawful discrimination by one or more of the Respondents to the terminated complaint.
Thus, it is fundamental to the jurisdiction of the Court that a complaint against a Respondent has been terminated. That means there must have been a complaint made to the Human Rights and Equal Opportunity Commission.
In his complaint dated 9 August 2001 the Applicant names the First Respondent, Master Holt and describes the Respondent’s organisation as the Supreme Court of Tasmania and as Second Respondent, Registrar Richard and Assistant Registrar Walker and names their organisation as the Supreme Court of Tasmania.
There was no complaint against the Second Respondent. The Human Rights and Equal Opportunity Commission notice of termination is dated 6 February 2002. Of necessity, it is not a notice of termination of a complaint against the Second Respondent. The essential jurisdictional requirement of termination of a complaint does not exist in relation to the Second Respondent and for that reason alone the application against the Second Respondent must be dismissed.
The final argument relied upon on behalf of the Second Respondent was an advocate's immunity from suit for negligence. Giannarelli v Wraith (1991) 171 CLR 592. It is clear that the Second Respondent would not be liable in negligence for anything he did in the course of the hearings on 13 October and 2 November. He appeared as solicitor but the common law immunity from suit of an advocate applies equally to solicitors and barristers. Each of the majority in Giannarelli held that.
The majority in Giannarelli were dealing only with a claim in negligence. They were not dealing with a disability claim pursuant to statute. It maybe that the reasons of the majority in Giannarelli would apply equally to such a claim as they do to negligence. As well, it would seem that the reasoning of the High Court in the passage from Re East and Ors already referred to, may apply by analogy to the immunity of an advocate. It is not necessary to decide these issues.
The Applicant’s application is dismissed.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Phipps FM
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