Michael, Carol Beverley v The State Housing Commission
[1996] FCA 600
•19 JULY 1996
C A T C H W O R D S
DISCRIMINATION LEGISLATION - practice and procedure - proceedings to enforce interim determination of President of Human Rights and Equal Opportunity Commission - interim injunction sought pending hearing of application - whether hearing of application for order to enforce interim determination is by way of judicial review or a hearing de novo - State Housing Commission proposing to evict Aboriginal family including five children - two family members suffering from disability - complaints by neighbours of trespass, anti-social behaviour and threats - arrears of rent - whether serious question to be tried - balance of convenience.
Racial Discrimination Act 1975 (Cth) ss. 22, 25Y, 25ZC
Disability Discrimination Act 1992 (Cth) ss.69, 102, 105A
Brandy v. Human Rights and Equal Opportunity Commission (1995) 183 CLR 245
Carson v. Minister for Education (Queensland) (1989) 25 FCR 326
American Cyanamid Co v. Ethicon Ltd [1975] AC 396
CAROL BEVERLEY MICHAEL v. THE STATE HOUSING COMMISSION
No. WAG 90 of 1996
CARR J
PERTH
19 JULY 1996
IN THE FEDERAL COURT )
OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. WAG 90 of 1996
GENERAL DIVISION )
B E T W E E N : CAROL BEVERLEY MICHAEL
Applicant
and
THE STATE HOUSING COMMISSION
Respondent
CORAM: CARR J.
PLACE: PERTH
DATE: 19 JULY 1996
MINUTE OF ORDERS
Upon the respondent undertaking, subject to the condition referred to hereunder, not to evict the applicant or her family from the premises referred to in the within reasons before judgment is delivered in respect of this application following the hearing referred to below:-
THE COURT ORDERS THAT:
The hearing of the principal application in this matter be expedited and take place on 1 August 1996.
The evidence at the abovementioned hearing shall be by way of affidavit. The affidavit and other documentary evidence admitted in the course of the hearing, on 17 July 1996, for interim relief is to be evidence in the hearing of the principal application.
The applicant shall on or before 26 July 1996 file and serve short particulars of the basis upon which she claims the order sought in her application. Those particulars shall include:
(a)short particulars of the respondent's conduct by reason of which the applicant claims that the respondent has contravened either the Racial Discrimination Act or the Disability Discrimination Act; and
(b)particulars of the provisions of each of the above Acts upon which the applicant relies.
If the applicant wishes to file and serve further affidavits, she may do so on or before 26 July 1996.
The respondent may file and serve any further affidavits on or before 30 July 1996.
The parties shall forthwith attend on the District Registrar to arrange an appointment for a conference at which the prospects of a mediated settlement of this application shall be considered.
Costs of the application for interim relief are reserved.
The condition of the undertaking referred to above is that the applicant shall within 7 days permit no more than two representatives of the respondent to make one complete inspection of the premises referred to in the within reasons. The respondent shall have liberty to apply in respect of that matter.
NOTE:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT )
OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. WAG 90 of 1996
GENERAL DIVISION )
B E T W E E N : CAROL BEVERLEY MICHAEL
Applicant
and
THE STATE HOUSING COMMISSION
Respondent
CORAM: CARR J.
PLACE: PERTH
DATE: 19 JULY 1996
REASONS FOR JUDGMENT
Introduction
In this matter the applicant, Ms Carol Beverley Michael, on her own behalf and on behalf of her de facto husband (Mr Clarkie Albert Narkle) and five children seeks an interim injunction restraining the respondent, the State Housing Commission ("the Housing Commission") from evicting her or any member of her family from their Housing Commission residence in Lalor Road, Kenwick, Western Australia ("the Premises").
In her principal application the applicant seeks orders to enforce an interim determination made by the learned President of the Human Rights and Equal Opportunity Commission ("the HREOC") under s.25Y of the Racial Discrimination Act 1975 (Cth) and s.102 of the Disability Discrimination Act 1992 (Cth). The formal terms of that interim determination restrain the Housing Commission from evicting
three of the respondent's children from the Premises. The interim determination expires on 1 September 1996, unless extended. This means that there is an unusual feature about this case, namely, that the final relief sought in the principal application to this Court is itself of a temporary nature.
Factual Background
In my view, even at this stage of the proceedings, given the allegations of discrimination, it is necessary to scrutinise the evidence before the Court and recite it in more detail than perhaps would otherwise be the case.
Between 1979 and June 1994 the applicant rented houses from the Housing Commission in various parts of the Perth metropolitan area and at Collie in the south-west of Western Australia. There were seven different residences and various periods when the applicant was not a Housing Commission tenant.
On 14 June 1995 the applicant and the Housing Commission entered into an agreement whereby the Housing Commission leased the Premises to the applicant. A copy of that agreement is in evidence. On the respondent's invitation, the applicant signed the necessary documentation to enable part of her entitlements to Social Security payments to be applied in payment of rent for the Premises, and another part in reducing, by Direct Debit, the arrears in respect of the applicant's previous tenancies of residences previously leased from the Housing Commission. The agreement to lease entitled the Housing Commission to fix the rent on the basis of the applicant's family income. Initially the rent was assessed at $45.70 per week.
On 23 January 1996 the respondent's accommodation manager, Mr P. Evans, wrote to the applicant complaining that she had not kept appointments for a property inspection. In his letter, Mr Evans said that he had found that the yards at the Premises were in an unkempt condition. He referred also to the fact that a person named "Clarkie Narkle" had answered the door on the occasion of his latest visit. Mr Narkle had told Mr Evans that he and a child were boarding at the Premises with the applicant and her husband. This would appear to be either an incorrect statement on Mr Narkle's part or a misunderstanding on Mr Evans' part. It is now common ground that the applicant and Mr Narkle are in a de facto relationship as husband and wife. Mr Evans concluded his letter by advising the applicant that:
.he would carry out a further property inspection on 31 January 1996 and if no access to the property was given a notice of breach would be issued; and
.he intended to cancel the applicant's rent rebate and charge a full rent of $126.80 per week unless an enclosed rebate form was completed and returned to the respondent together with statements of income for all household members.
On 2 February 1996 Mr Evans wrote again to the applicant complaining that she had not been home when he called to inspect the property on 31 January 1996. The letter enclosed a formal "Notice Of Intended Inspection" to the effect that Mr Evans would inspect the property on 15 February 1996 at 2.00 pm. The letter concluded:
"This is the commencement of a process which will lead to eviction if access to your property is not granted.
In addition, I intend to cancel your rent subsidy and charge full rent of $128.50 per week as from Monday 19 February 1996. Your Social Security Direct Debit will also cease from February 22, 1996."
On 15 February 1996 Mr Evans called at the premises and spoke to the applicant. His notes indicate that the applicant told him that Mr Narkle had been released from prison and was her de facto husband. She said also that she would submit a rent subsidy form on 16 February 1996. Mr Evans' notes indicate also that he informed the applicant that the subsidy would be cancelled if that form was not received.
On 19 February 1996 Mr Evans wrote to the applicant referring to his previous requests for income statements for all persons living at the property including the applicant's elder daughter's Job Search allowance as well as Mr Narkle's income. In his letter Mr Evans stated that the applicant had forwarded only the statement in relation to Mr Narkle and said that, in those circumstances, he was cancelling the rent subsidy as from 19 February 1996 and a full rent of $128.50 per week would be charged. In his letter Mr Evans further informed the applicant that her Social Security Direct Debit had ceased and that rent would have to be paid either with a Homeswest card or at the respondent's south-east metropolitan region office. The letter concluded in these terms:
"I strongly urge you to correctly complete the attached rent subsidy and include all household members and their statements of income."
It would appear that by 26 February 1996 the applicant was in arrears in payment of rent in respect of the Premises and that she has made no further payment of rent since that date. On 26 February 1996 the respondent sent to the applicant a computer-generated payment reminder letter in respect of rent due. On 5 March 1996 the respondent forwarded to the applicant a computer-generated overdue account letter drawing attention to accruing rent arrears. On 11 March 1996 the respondent sent to
the applicant a "Notice of Breach of Agreement to Pay Rent" under s.62 of the Residential Tenancies Act 1987 (W.A.). That document gave notice that the applicant was in arrears of rent and thereby in breach of the Agreement to Lease dated 14 June 1995, that rent had remained unpaid for a period of not less than seven days prior to the date of the notice and that not less than seven days after the service of the notice the respondent might give "Notice of Termination". The notice was accompanied by a letter detailing sources of free financial counselling.
It would seem that between 16 January 1996 and 18 March 1996 written complaints had been made to the respondent about children said to have trespassed upon a neighbouring property from the Premises and another incident, all of which was described as "alleged anti-social behaviour". On 19 March 1996 the respondent wrote to the applicant about these matters and referred also to rubbish in the front and rear yards of the Premises. The author of the letter (again Mr Evans) invited the applicant's written response to these allegations and matters within seven days. In his letter of 19 March 1996 Mr Evans reminded the applicant that her rent subsidy had been cancelled and stated that he was aware that the applicant had approached the Aboriginal Legal Service to assist in the matter.
On 22 March 1996 Mr G. Jones, the respondent's Regional Manager signed a "Notice by Owner of Termination of Agreement" which was sent to the applicant under cover of a letter of that date. The particulars of the breach relied upon were "breach of agreement to pay rent".
On 26 March 1996 a Ms Juliette Mugambwa from the Aboriginal Legal Service telephoned the respondent's Regional Recovery Officer (Ms P. Dawson), inquiring about the applicant's indebtedness to the respondent. Ms Dawson explained the position and requested Ms Mugambwa to ask the applicant to get the required information and to contact Mr Evans concerning the Department of Social Security Direct Debit. Within two days the respondent received an application for subsidy, and income information in respect of all persons resident at the Premises. The respondent assessed the subsidy and backdated it to the time when it was first cancelled. This resulted in the rent being assessed, as from 19 February 1996 at $107 per week on the basis of additional income of two family members. At the time, the total family income (from Social Service payments) was $644.80 per week.
On 30 April 1996 Mr Jones wrote to the applicant in the following terms:
"Debt to Homeswest
Today I have signed an application for an urgent Court Listing to seek approval to evict you from the above property.
I want to make you aware of how serious this action is. Homeswest will evict if the debt which you owe is not paid.
To avoid this action, please contact the Regional Recovery Officer at this office, or your Accommodation Manager, immediately.
If you decide not to clear the debt you owe, I urge you to appear in Court."
In the meantime, the applicant applied for a transfer to a Housing Commission home in what was described as the "Hamilton Hill Zone". On 14 May 1996 the respondent advised the applicant that due to the fact that she was substantially in arrears in respect
of rent, the application to transfer had been disallowed. In the letter conveying that information, the respondent informed the applicant that if she felt that the decision was wrong she might appeal. The applicant did not appeal.
On 6 May 1996 Ms Dawson wrote to the applicant advising that there would be a hearing at 10.15 a.m. on 22 May 1996 at the Perth Local Court, 32 St. George's Terrace. That letter included the following paragraph:
"This matter is very serious and I would urge you to attend the Court hearing on this date if you have not cleared your debt in full. This will give you the chance to present your case to the magistrate. If you do not attend the Court hearing an order may be given to evict you from the property.
You must contact me urgently on 356 0413 if you wish to remain in your tenancy."
On the same date the applicant telephoned the respondent's Accommodation Manager, Mr Dennis Abraham, about the Notice of Termination. Mr Abraham told the applicant that the respondent would continue with the proceedings in the Local Court unless the debt was paid in full prior to the hearing. The applicant said that she would arrange a meeting later in the week with Ms Buchanan and would "get back" to Mr Abraham.
On 21 May 1996 Ms Betsy Ann Buchanan, the Welfare Rights Worker at the Aboriginal Medical Service, telephoned Mr Jones and, amongst other things, asked for the Local Court proceedings to be adjourned. Mr Jones told Ms Buchanan that due to the size of the debt, the action would proceed. A similar telephone conversation took place on the same date between Mr Jones and Ms Mugambwa. Mr Jones told Ms Mugambwa that there would be time to negotiate after the Court order.
On 22 May 1996, the Local Court at Perth made an eviction order and associated orders against the applicant under the provisions of the Residential Tenancies Act in respect of the Premises.
During the course of the next two days, various government agencies contacted the respondent in relation to the applicant's predicament. It is not necessary to give the detail of those contacts except that on 24 May 1996 the applicant, through Ms Mugambwa made an offer to make a down payment of $200 together with current rent and $50 per fortnight in reduction of arrears. Mr Jones deferred a response to that offer pending a meeting scheduled for 27 May 1996 between the applicant and the agencies attempting to assist her. It appears that the applicant did not attend that meeting.
On 19 June 1996, the applicant's then solicitors complained to the Human Rights and Equal Opportunity Commission that the Housing Commission had contravened the Disability Discrimination Act and the Racial Discrimination Act. There is evidence before this Court that the applicant and her family are Aboriginal people and Mr Narkle and two of the applicant's daughters receive disability pensions. Mr Narkle has serious psychiatric problems and requires daily medication for a condition resulting from treatment of thyroid cancer, diagnosed when he was 16 years old. Particulars of the family are as follows:
The applicant, aged 40;
Mr Narkle, aged 33 years;
Rachel Anne Michael, aged 20 years, the applicant's daughter;
Kristy Angela Michael, aged 18 years, also the applicant's daughter;
Winnie Susan Michael, aged 17 years, also the applicant's daughter;
Roxanne Fiona Narkle, aged 8 years, also the applicant's daughter; and
Ginny Ruth Florence Narkle, aged 6 years, also the applicant's daughter.
The applicant's complaint is that she and her family are the subject of either racial or disability discrimination, or both. In summary, the applicant says that:
.the grounds of termination of her tenancy by the Housing Commission;
.the reasons for the actions by the Housing Commission leading up to that termination;
.the reasons for the refusal to transfer;
.the reasons for cancellation of the rent warrant;
.the reasons for refusal to accept rent; and
.the reasons for subsequent actions to enforce termination of the lease, including the application to the Local Court, obtaining orders and steps taken to execute the orders;
included the race of the applicant and members of her family and the disabilities of the members of her family, including the applicant and those members of her family who do not suffer from disabilities. The complaints are said to fall within s.22 of the Racial Discrimination Act and s.69 of the Disability Discrimination Act respectively.
The complaint to the HREOC was made on the eve of the date upon which the Housing Commission proposed to evict the Michael family. On 19 June 1996 the learned President of the Human Rights and Equal Opportunity Commission made an interim determination that Homeswest be restrained from having the Michael family evicted from their home. On 26 June 1996 the learned President heard the parties for a period of some 2½ hours. There is an issue between the parties about whether this was a mediation conference or a hearing for the purposes of deciding whether a further interim determination would be made.
On 27 June 1996 the learned President made a further interim determination, with effect until midnight on 1 September 1996, that the Housing Commission be restrained from having the Michael family evicted from their home. The interim determination was in the following terms:
"HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
IN THE MATTER OF
KRISTY MICHAEL, WINNIE MICHAEL AND ROXANNE MICHAEL
AND
HOMESWESTINTERIM DETERMINATION OF THE PRESIDENT PURSUANT TO SECTION
102 OF THE DISABILITY DISCRIMINATION ACT 1992 (CTH)
AND THE RACIAL DISCRIMINATION ACT 1975 (CTH)
Having been advised of the complaints of KRISTY MICHAEL, WINNIE MICHAEL and ROXANNE MICHAEL ("the complainants") pursuant to the Racial Discrimination Act 1975 (Cth) and the Disability Discrimination Act 1992 (Cth) ("the relevant Acts") against Homeswest ("the respondent") forwarded to the Human Rights and Equal Opportunity Commission ("the Commission") by facsimile dated 19 June 1996 together with a request for interim determinations dated 19 June 1996 (pursuant to s.102 of the Disability Discrimination Act 1992 (Cth) and s.25Y of the Racial Discrimination Act 1975 (Cth) ("the relevant sections"));
And having heard from the parties on 26 June 1996;
And being satisfied that if substantiated the complaints disclose discriminatory conduct under the relevant Acts;
I, RONALD WILSON, in accordance with the relevant sections, and being of the opinion that it is expedient that I alone, as President, should perform the functions of the Commission under the relevant sections, DO HEREBY MAKE AN INTERIM DETERMINATION that the respondent be restrained from having the complainants evicted from their home at Lalor Road, Kenwick, Western Australia.
This interim determination is made so as to maintain the rights of the parties to this complaint. Unless extended, it will expire at midnight on Sunday 1 September 1996. This came (sic) be done by way of written submissions prior to the aforesaid date.
I also determine that if the complainants or respondent wish to make any further application in respect of this interim determination, this can be done
by way of written submissions addressed to the President, Human Rights and Equal Opportunity Commission, Level 8, Piccadilly Tower, 133 Castlereagh St, Sydney, NSW, 2000.
Pursuant to section 105A of the Act (as amended by the Human Rights Legislation Amendment Act 1995 (Cth)), the Commission, a complainant, or a person acting on behalf of a complainant, may commence proceedings in the Federal Court of Australia for an order to enforce the interim determination made against the respondent under the relevant sections.
This interim determination, unless enforced in the Federal Court, is not binding and determinative of the rights of the parties: see s.25Y of the Racial Discrimination Act and s.102 of the Disability Discrimination Act 1992 (Cth).
DATED this 27th day of June 1996.
RONALD WILSON
PRESIDENT"
On 3 July 1996 the learned President provided reasons for his decision, in the following terms:
"I provide this brief explanation of the reasons for my decision in the above interim determination.
1.This was not a full inquiry into the facts and law surrounding the complaint. An interim determination is of its nature not evidence of proof of a complaint, but is determined on a weighing up of the balance of convenience in restraining actions of a respondent in order to maintain the status quo or the rights of a complainant.
2.Although this interim determination was not granted by consent, in the circumstances surrounding the issue of the balance of convenience I took into account the following facts:
2.1That the respondent agreed to abide by the interim determination.
2.2That the respondent requested that the interim determination not be formulated in such a way so as to exhaust their writ of eviction. This is a request with which I complied and determined that the interim determination expire, unless renewed, on 1 September 1996.
3.Further factors that I took into account in deciding that the balance of convenience supported the grant of the interim determination include:
3.1The fact that the complainants offered to pay the entirety of the arrears of rent without delay.
3.2The fact that the complainants were prepared to re-issue a rental warranty
ensuring that future rental would be deducted before Social Security payments were made.
3.3The fact that assistance and support had been offered by the Aboriginal Medical Service.
I came to the conclusion that these matters substantially reduced any detriment to the respondent by the imposition of an interim determination.
Prior to granting the interim determination, I considered and rejected a submission from Counsel for the respondent that the Human Rights & Equal Opportunity Commission ("the Commission") was without jurisdiction to inquire into this complaint because there was already a complaint pending in the Equal Opportunity Commission of Western Australia, see s.13(4) of the Disability Discrimination Act 1992 (Cth) and s.6A(2) of the Racial Discrimination Act 1975 (Cth). My reason for dismissing the objection to jurisdiction was based on the fact that the key phrase used in each of the relevant sections refers to a complaint alleging an act or omission as the unlawful discriminatory act.
In my opinion each complaint focussed on an entirely different act or omission. In the complaint lodged in March 1996 under the Western Australian Equal Opportunity Act 1984, the circumstances made no reference to a proposed eviction of the complainants from the premises. Furthermore, the complaint under the State Act could not have included the eviction, since in March 1996 there was no threatened act of such a nature. On the other hand, the centrepiece of the complaint lodged with this Commission was the imminent eviction of the complainants."
In the meantime, on 28 June 1996, the Housing Commission's solicitor wrote to the applicant denying discrimination and advising that the eviction would proceed on Monday 8 July 1996. Subsequently the Housing Commission agreed to defer taking that step initially until 10 July 1996 and then until today. The applicant instituted these proceedings on 9 July 1996. The matter came before me on 10 July 1996. On the respondent's undertaking not to evict the applicant and her family I stood the matter of interim relief over for hearing on 17 July 1996 and made certain directions. In accordance with those directions, the applicant has filed five further affidavits, the respondent has filed four affidavits and each party has filed a detailed outline of submissions. The hearing of the application for the interim injunction extended over almost a whole day.
The Matter To Be Decided Now
It is important to keep in mind the question that has to be resolved at this stage. The question is not whether the respondent has unlawfully discriminated against the applicant. Nor is it whether the Court should make an order enforcing the learned President's interim determination. The question is whether, pending the hearing of the application for an order to enforce the learned President's interim determination, the respondent should be enjoined from evicting the applicant and her family from the Premises? In other words, should interim relief be granted pending the "final" hearing of what is in effect an application for an order of a temporary nature?
The Legislative Background
The relevant provisions of the Racial Discrimination Act and the Disability Discrimination Act have recently been amended as a consequence of the High Court of Australia's decision in Brandy v. Human Rights and Equal Opportunity Commission (1995) 183 CLR 245. In that case, the High Court held that the provisions in the Racial Discrimination Act for registration and enforcement in this Court of determinations made under that Act, (which were introduced in 1992 and 1993 by the legislation referred to at p.251 of that report) were constitutionally invalid. Broadly speaking, the recent re-amendments appear to have restored the enforcement regime which existed before the 1992/1993 amendments. One consequence of this is, in my opinion, that authorities decided under the legislation in its previous form will assist in the resolution of this matter.
I shall not refer to the substantive provisions of the legislation which cause certain types of discrimination to be unlawful, nor to the provisions whereby a complaint may be lodged. It is sufficient to say that there are broadly comparable provisions in each Act for the lodgment of a complaint, an inquiry into that complaint and the making of a determination in respect of such a complaint. I now turn to the particular provisions which apply to the resolution of the present issue.
Section 25Y of the Racial Discrimination Act relevantly provides that on the application of a party to an inquiry at any time after the lodgment of a complaint into which that inquiry is held, the learned President may make an interim determination of such a nature as would, if it were binding and conclusive upon the parties, preserve the status quo between the parties or the rights of the parties to the complaint pending completion of the matter.
Section 102 of the Disability Discrimination Act is in substantially identical terms.
Subsection 2 of each of these sections declares that an interim determination is not binding or conclusive between any of the parties to the determination.
Section 25ZC of the Racial Discrimination Act and s.105A of the Disability Discrimination Act provide for a complainant to commence proceedings in this Court to enforce a determination, including an interim determination, made under each respective Act except where the respondent is a Commonwealth agency or the principal executive of a Commonwealth agency. It may assist in the understanding of the
respective contentions of the parties, and also these reasons, if I set out the full text of s.105A of the Disability Discrimination Act which is in relevantly identical terms to s.25ZC of the Racial Discrimination Act. Section 105A of the Disability Discrimination Act provides as follows:
"Proceedings in the Federal Court to enforce a determination
105A. (1)The Commission, the complainant, or a person acting on behalf of the complainant, may commence proceedings in the Federal Court for an order to enforce a determination made under subsection 102(1) or 103(1) after the commencement of this Division, except where the respondent to the determination is a Commonwealth agency or the principal executive of a Commonwealth agency.
(2)If the Court is satisfied that the respondent has engaged in conduct or committed an act that is unlawful under this Act, the Court may make such orders (including a declaration of right) as it thinks fit.
(3)The Court may, if it thinks fit, grant an interim injunction pending the determination of the proceedings.
(4)The Court is not to require a person, as a condition of granting an interim injunction, to give an undertaking as to damages.
(5)In the proceedings, the question whether the respondent has engaged in conduct or committed an act that is unlawful under this Act is to be dealt with by the Court by way of a hearing de novo, but the Court may receive as evidence any of the following:
(a)a copy of the Commission's written reasons for the determination;
(b)a copy of any document that was before the Commission;
(c)a copy of the record (including any tape recording) of the Commission's inquiry into the complaint.
(6)In this section:
"complainant", in relation to a representative complaint, means any of the class members."
The Respective Contentions
Often, at this stage of reasons for judgment in respect of an application for interim relief, there is a short statement of the relevant principles to be applied. However, in this matter there is a preliminary issue concerning the manner in which this court
should proceed when considering whether to enforce an interim determination. Dr J.L. Cameron, counsel for the applicant, submitted that there was an important distinction between the enforcement of an interim determination and the enforcement of what I shall describe as a final determination. There was nothing in the Disability Discrimination Act, so it was submitted, which required or enabled the learned President, when considering whether to make an interim determination, to find or determine that a respondent has engaged in unlawful discrimination.
In contrast, s.103 has the effect that the Commission may not make a final determination unless it finds the complaint substantiated. The next step in Dr Cameron's argument was to submit that, in those circumstances, the question whether this Court should enforce an interim determination was not to be heard by way of a hearing de novo in the manner referred to in s.105A(5). That procedure applied only to the hearing of an application for an order to enforce what I have described as a final determination. The question was important because it governed the extent to which the Court should have regard to factual matters and the merits or should confine itself to a review in the nature of a traditional judicial review of administrative action. That is, of course, a much narrower judicial involvement in which (subject to gross unreasonableness, error of law and the like) the merits of the matter are left to the administrative decision-maker. That in itself, so Dr Cameron submitted, was a serious issue of law which should not be resolved at the hearing of an application for an interim injunction. He relied upon that portion of Lord Diplock's speech in American Cyanamid Co v. Ethicon Ltd [1975] AC 396 at p.407 where his Lordship expressed the view that on such an occasion it was no part of the Court's function "... to decide
difficult questions of law which call for detailed argument and mature considerations." In relation to Lord Diplock's observation (at the same page) that:
"The Court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried",
Dr Cameron referred to the Commission's power under s.100 to dismiss a complaint if it thinks that it is trivial, vexatious, misconceived or lacking in substance. Dr Cameron submitted that s.105 granted the right to apply to this Court for enforcement of an interim determination, but did not provide any remedy. Again, so it was put, that was of itself a sufficiently serious question of law justifying the grant of an interim injunction pending the hearing of the substantial application for an order to enforce the interim determination.
This matter was touched upon when the application first came before me on 10 July 1996 and was more fully argued on 17 July 1996. I was referred to some authorities on the point and have given it what I consider to be sufficiently mature consideration. The authorities include the decision of Spender J in Carson v. Minister for Education (Queensland) (1989) 25 FCR 326. In that case, as in this case, his Honour was asked to grant an interim injunction to enforce an interim determination of the Human Rights Commission made under the Racial Discrimination Act. I consider that the provisions concerning the making of interim determinations and their enforcement by this Court which were under consideration in Carson are relevantly identical to the provisions which govern this case.
His Honour observed (at p.335):
"Section 25ZA(2) sits very awkwardly in the statutory scheme where the Commission has made an interim determination, which is then sought to be enforced by a complainant in the Federal Court. I am by no means sure, given the terms of s.25ZA(2), that the Federal Court has power to "enforce" an interim determination of the Commission under s.25Y. However, in an attempt to give effect to these unhappily expressed provisions, it seems to me that, if there has been an interim determination, the Federal Court should inquire into whether to give effect to it by considering whether, in the circumstances proved before it, it would grant an interlocutory injunction. Section 25ZA, in giving the complainant a right to institute proceedings to enforce an interim determination, must, by necessary implication, confer jurisdiction on the Court to "enforce" such a determination, the determination by the Commission being neither binding nor conclusive. It seems to me that the Federal Court should make such an order only after it is itself satisfied on material properly before it that the circumstances call for the making of an order which would have the effect of giving effect to the interim determination."
With respect, I agree completely with the above. In my view, the reference to "the proceedings" in s.105A(3) and (5) is to both types of proceedings which may be commenced under s.105A(1). In either of such proceedings the Court may exercise its power, if it thinks fit, to grant an interim injunction pending the determination of the proceedings. When deciding whether it is fit to grant an interim injunction, it must be relevant to consider whether sufficient evidence has been adduced which, if accepted as factual at the eventual hearing, would establish that (or, in the case of an interim determination, would raise a serious question to be tried concerning whether) the respondent has engaged in conduct or committed an act that is unlawful under the Disability Discrimination Act. If there were no such evidence or if all of the evidence pointed conclusively against any unlawful act then it would be contrary to the basic equitable principles upon which injunctions are granted, to submit a respondent to an interim injunction. I appreciate that in the context of judicial review of administrative action there is what is sometimes referred to as the "no evidence" ground. However, once it is accepted that the question of whether a respondent has engaged in unlawful
conduct is relevant, Parliament has spoken on how that question is to be resolved. It is to be resolved in accordance with s.105A(5) by way of a hearing de novo. In the case of an interim determination the hearing of the principal application will usually be an expeditious one because the principles applicable to the grant of an interlocutory injunction will apply. Nevertheless it is to be de novo because the subsection makes no distinction between the two types of proceedings referred to in s.105A(1). I would add that s.105A(4), by prohibiting the Court from requiring an applicant for an interim injunction to give an undertaking as to damages, provides some confirmation that the usual equitable principles otherwise apply.
If Parliament had intended to distinguish between the two types of proceedings referred to in s.105A then it could easily have done so. Similarly, if Parliament had intended the proceedings to enforce an interim determination to be by way of judicial review of administrative action it could also have so stipulated. It has not done so. I can see very good reason for not doing so. It is in the public interest that the matter of whether an interim injunction should be granted to enforce an interim determination of the Commission (or its President) should be dealt with economically and quickly. There is no guarantee that proceedings by way of judicial review would achieve this more efficiently than applying the usual equitable principles governing the grant of interim relief. Judicial review can be expensive and take some considerable time. On the other hand, the principles applicable to the grant of an interlocutory injunction can be readily and speedily applied. There is also a certain appropriate symmetry between applying those principles to an interim determination rather than holding a full-scale hearing by way of judicial review.
Dr Cameron contended that the Court, both at this stage and at the hearing of the application, could only have regard to the facts for the purposes of ascertaining whether the application for enforcement was frivolous or vexatious. He submitted that this was the same question which the learned President had to decide before making an interim determination. I disagree. First, save in respect of the special circumstances referred to in s.101 of the Disability Discrimination Act, the power to dismiss a complaint under s.100 is vested in the Commission, not the learned President. Secondly, even if the learned President had power to dismiss the complaint on the grounds that it was trivial or vexatious, the fact that he has made an interim determination does not necessarily mean that he had given consideration to the matter of triviality or vexatiousness. The learned President's reasons (set out above) show that he considered only the balance of convenience. Nothing in what I have just written should be taken as an expression of opinion upon what the learned President has to decide before making an interim determination. I am concerned here only with how an application to enforce such a determination should be dealt with in this Court both at the interim injunction stage and "finally".
Accordingly, in my view, the principles to be applied to the decision of this application, both at this stage [subject to the qualification in 1(b) below] and upon the eventual hearing are as follows:
(a) Is there a serious question to be tried?
(b)If, at this stage, the evidence is such that had the hearing on 17 July 1996 been the hearing of the principal application it would have been dismissed, is it in the interests of justice for an order to be made now which would have
the same practical effect?
Is it just in all of the circumstances for the applicant to be confined, if she is eventually successful in her complaints, to common law damages?
If there is a serious question to be tried or it would not be just either to pre-empt the outcome of the trial or to confine the applicant to the remedy of damages, where does the balance of convenience lie so far as granting or refusing interim relief is concerned?
When considering the balance of convenience it is permissible to have regard to the apparent strength or weakness of the applicant's case.
For the benefit of those not familiar with the application of these principles, I should stress that it is seldom part of the Court's function at this stage to resolve conclusively conflicts of evidence on affidavit concerning facts upon which the claims of either party may ultimately depend. I have not done so in this case.
I now proceed to consider each of the above matters on that basis.
Is there a serious question to be tried?
For the reasons which I have stated above, I do not consider that there is a serious question of law to be tried. Is there a serious question of fact to be tried? I have combed through the factual material put before the Court for any evidence of discrimination by the Housing Commission against the applicant on grounds of race or disability. Evidence is to be contrasted with bare assertions. There are many assertions of discrimination in the documentation placed before the Court, but those
assertions are not evidence of discrimination.
During the course of the hearing I asked Dr Cameron to take me to any evidence of discrimination. I made it clear that at this stage not much in the way of such evidence would be required. I gave an example of a clerical officer making a casual racially-based observation. I was not taken to any evidence of that type.
At one stage Dr Cameron raised the matter of indirect disability discrimination. He suggested that the evidence justified an inference that, in terms of s.6 of the Disability Discrimination Act, the Housing Commission was requiring the applicant to control Mr Narkle and her elder daughter, being a requirement which fell within sub-paragraphs 6(a), (b) and (c). On the state of the evidence to date, that submission is unpersuasive. To start with, the alleged requirement is as against the applicant. I accept that given a factual foundation for the allegation, eviction of Mr Narkle might arguably fall within s.25 of the Discrimination Act. But there is simply insufficient evidence at this stage to form a factual foundation for the requirements of s.6.
There was no dispute that the applicant and her family are Aboriginal. Similarly there was no dispute that Mr Narkle and two of the abovementioned daughters have disabilities. Furthermore, there was no dispute that the applicant's neighbours had made complaints about the behaviour of certain members of her family. So far as the present state of the evidence is concerned, the evidence does not disclose a basis for the argument that the applicant's neighbours are racially prejudiced against her and her family. On the contrary, the present state of the evidence is that in the past there have
been Aboriginal residents in the Premises who have been accepted and lived at peace with their neighbours. Furthermore, there is evidence of some racial abuse on the part of the applicant's eldest daughter directed to some of the non-Aboriginal residents of the same street.
I accept that there may be room for an inference that the Housing Commission chose to rely upon non-payment of rent as a basis for terminating the tenancy rather than the subject matter of the complaints of allegedly anti-social behaviour. But such a choice does not amount to racial or disability discrimination against the applicant.
In my provisional view, the applicant has at this stage failed to put before the Court sufficient evidence to form the factual basis for a serious question to be tried about whether the Housing Commission has discriminated against her for reasons which include race or disability as alleged. In other words, on the state of the evidence to date, the applicant's case is, in my opinion such that if this were the hearing of her principal application (i.e. to enforce the interim determination) in all probability it would be dismissed. I regard the applicant's case as being a weak one. However, I do not think that it is so weak that it should not proceed to a hearing of the type which I have described above. In the peculiar circumstances of this matter that is a conclusion equivalent to a conclusion that there is a serious question to be tried. I should add that it is unsatisfactory to have to resolve, on an interim basis, whether there is a serious question to be tried when at the trial that itself will be the very issue to be decided. However, that seems to be the exigency of the combination of the provisions of s.105A(1) and (3) of the Disability Discrimination Act and the fact that it
takes time to bring a case to trial. In this matter there was the additional legal argument concerning the test to be applied by the Court when deciding whether to enforce an interim determination. As will be seen below, I think that the answer to these problems in the usual case (including this one) is to expedite the hearing of the application so that it is treated in all respects as if it were an application for an interlocutory injunction.
The Balance of Convenience
In my view, the balance of convenience falls in the applicant's favour. It is sufficient to refer to the imminent eviction, in the middle of winter, of the applicant, Mr Narkle and the five daughters, two of whom are under nine years of age. I have already referred to Mr Narkle's disability. The evidence points to the likelihood, in the event of eviction taking place, of Mr Narkle being admitted to a psychiatric institution. I accept the medical evidence in respect of the likely effect of such an eviction on the children and in particular the two younger children. It is not necessary to refer to the details.
Mr Jones, in his affidavit, acknowledges that the Housing Commission is the prime source of housing for a large portion of the Aboriginal population. However, he makes reference to alternatives available which he describes as being "within the wider community". I have considered those alternatives but the very fact that the applicant and her family would have to take their chances of finding shelter caused me to maintain my view that the balance of convenience lies in favour of the applicant.
Ms C Jenkins, counsel for the Housing Commission, submitted that the applicant was seeking an interim mandatory injunction and that the Court, before granting such an injunction, requires a greater degree of assurance that at trial it will appear that the injunction was rightly granted. I disagree. First, the injunction would simply restrain the Housing Commission from exercising its rights to evict the applicant. Secondly, even if a mandatory injunction were being sought, all that is required of the Court is that it not exercise its jurisdiction to grant the injunction without particular caution. However, the circumstances in which the Court's power to grant a mandatory injunction should be exercised is a matter for judicial discretion. The authorities are conveniently collected in Carson at pp.337-339. In common with Spender J in that case, I shall, in any event, proceed on the basis indicated by Gummow J in Businessworld Computers Pty Ltd v. Australian Telecommunications Commission (1988) 82 ALR 499 at p.503.
Next Ms Jenkins relied upon the fact that the Local Court warrant which the Housing Commission has obtained to obtain possession of the premises expires on 1 September 1996. At the hearing last Wednesday I asked to be directed to the provisions of the relevant legislation which might preclude either an extension of the warrant or an application for a new warrant. Counsel were unable to assist me. I have had regard to s.106 of the Local Courts Act 1904 (W.A.). However, it is by no means clear to me that if the warrant expires, the Housing Commission would be precluded from obtaining from the Local Court an order that a further warrant issue or a further order for possession.
The evidence on the matter of the balance of convenience is by no means completely in favour of the applicant. The balance is a relatively fine one. There is uncontradicted evidence that between 23 May 1996 (the day after the Local Court made the eviction order) and 10 July 1996 the Premises have been damaged. Two windows in the lounge room have been smashed. Two windows in the right rear bedroom have been smashed. One window in the toilet and both security doors have been extensively damaged. Further unspecified damage occurred on 6 July 1996 including the breaking of a further window. This is only externally-visible damage.
Furthermore, I have had regard to three affidavits, filed on behalf of the Housing Commission, sworn by residents of Lalor Road, in which the Premises are situated. I accept that the Housing Commission has a legitimate interest in the maintenance of good neighbourly relations between present and future tenants of the Premises and other residents of that street. There is also the public interest in residents of a suburban area being allowed to live undisturbed by their neighbours, should they choose. The contents of those three affidavits reflect behaviour by some members of the applicant's family and visitors to her home which nobody should be required to tolerate. The three residents concerned have lived in Lalor Road for fourteen years, twelve years and seven and a half years respectively. One of them deposes to the fact that prior to the Michael family moving into the Premises there have been two groups of Aboriginal tenants at that address with whom she has had friendly relations.
I appreciate that these three affidavits were filed as late as the 15th July 1996 and the deponents have not been cross-examined. The evidence is untested, but the same
applies to all of the evidence adduced at this stage. I should not be taken as suggesting that the occasion of the hearing of an application for enforcement of an interim determination should generally include cross-examination. In my view, that would be fairly unusual, just as it is fairly unusual in the case of applications for interlocutory injunctions in other matters.
The respondent submitted that an interim injunction should not be granted because this would amount to compelling the parties, so it was put, to enter into a contract which requires mutuality. It was said that the Housing Commission could not be protected from subsequent breaches of such an enforced "tenancy" except by resorting to the supervision of the Court. It was not practicable for the Court to supervise such an order. Again I disagree. If the Court were to make an order restraining the Housing Commission from exercising its legal rights to evict the applicant then, in my opinion, an appropriate order could be moulded, based, for example, on undertakings from the applicant to observe the terms of the Housing Commission's standard tenancy agreement, including the payment of an amount equivalent to rent. The Housing Commission's interests could be protected. Apart from the sanction of dissolving that injunction, there would also be such sanctions as may arise out of a breach of an undertaking to the Court.
Conclusion
The reasons which I have set out above are necessarily provisional in the sense that they are based upon the evidence and legal submissions made to date. In the usual case, the consequence of the weakness of the applicant's case and the fact that the balance of convenience was a fine one would be that interim relief would be refused and the substantive matter would proceed to hearing where the parties would be at liberty to adduce further evidence and make more detailed and less hurried submissions. Indeed the proceedings were conducted on 17 July 1996 on the basis that they were preliminary to a final hearing of the principal application.
But this is not the usual case. The refusal of interim relief will mean that the interim determination will not be enforced. The eviction will proceed. The body of principles developed in relation to the grant of interlocutory injunctions is intended only to guide the exercise of the exercise of the discretion to grant an interlocutory remedy. As Collins M.R. said in Re Coles and Ravenshear [1907] 1 K.B. 1 at p.4 (admittedly in a different context):
"... the relation of rules of practice to the work of justice is intended to be that of handmaid rather than mistress, and the Court ought not to be so far bound and tied by rules, which are after all only intended as general rules of procedure, as to be compelled to do what will cause injustice in the particular case."
The practical impact of an outcome which pre-empts the trial is a relevant factor when deciding whether to grant or refuse an interim injunction: see Seaman "Civil Procedure Western Australia" para. 52.1.8 and the cases there cited.
I have decided that the interests of justice will be served by taking the following steps:
Expedite the hearing of the substantive application so that it takes place on 1 August 1996. The evidence at that hearing will be by way of affidavit. The affidavit and other documentary evidence admitted in the course of the hearing, on
17 July 1996, for interim relief is to be evidence in the hearing of the principal application. In my view, other than directions in respect of filing of affidavits, there should be no other interlocutory steps.Order that:
(a)If the applicant wishes to file and serve further affidavits she may do so on or before 26 July 1996.
(b)The respondent may file and serve any further affidavits or affidavits in reply on or before 30 July 1996.
If the respondent is prepared to continue its undertaking not to evict the applicant or her family prior to 1 August 1996, I would not grant an interim injunction. Otherwise an injunction will issue so as to preserve the status quo until the conclusion of the hearing on 1 August 1996 and the delivery of judgment.
As mentioned above, the hearing will be on affidavit. I anticipate, given my view as to the nature of these proceedings that the deponents will not be cross-examined i.e. that leave will be granted under Order 14 rule 9(3) of the Federal Court Rules, but I will consider the question of cross-examination if and when it arises on 1 August 1996.
There will be orders accordingly.
I certify that this and the preceding thirty-three
(33) pages are a true copy of the Reasons for
Judgment of Justice Carr.
Associate:
Date: 19 July, 1996
Counsel for the Applicant: Dr J.L. Cameron
Solicitors for the Applicant: Lawton Gillon Tydde
Counsel for the Respondent: Ms C. Jenkins
Solicitors for the Respondent: Mr P. Apostolos Panegyres
Crown Solicitor for the
State of Western Australia
Dates of Hearing: 17 July, 1996
Date of Judgment: 19 July, 1996
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