Neate v Totally and Permanently Incapacitated Veterans' Assoc. of NSW
[2007] FMCA 488
•2 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NEATE v TOTALLY & PERMANENTLY INCAPACITATED VETERANS’ ASSOC. OF NSW LIMITED | [2007] FMCA 488 |
| HUMAN RIGHTS – Summary dismissal – no reasonable prospect of the applicant succeeding on the application. |
| Federal Magistrates Act 1999 (Cth), s.17A Federal Magistrates Court Rules 2001 (Cth) Disability Discrimination Act 1992 (Cth), ss.5, 6, 45 Human Rights and Equal Opportunity Commission Act 1986 (Cth), ss.46PH, 46PO Veterans’ Entitlements Act 1986 (Cth), s.24 |
| Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572 New South Wales Department of Housing v Moskalev [2007] FCA 353 Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92 Vivid Entertainment LLC & Ors v Digital Sinema Australia Pty Ltd & Ors [2007] FMCA 157 |
| Applicant: | PETER ALFRED NEATE |
| Respondent: | TOTALLY AND PERMANENTLY INCAPACITATED VETERANS’ ASSOCIATION OF NEW SOUTH WALES LIMITED |
| File Number: | SYG2760 of 2006 |
| Judgment of: | Driver FM |
| Hearing date: | 4 April 2007 |
| Delivered at: | Sydney |
| Delivered on: | 2 May 2007 |
REPRESENTATION
| Solicitors for the Applicant: | Mr W Purdon William Purdon, Solicitor |
| Counsel for the Respondent: | Ms C Ronalds SC |
| Solicitors for the Respondent: | John M Fitzgerald & Associates |
INTERLOCUTORY ORDERS
The application under s.46PO of the Human Rights and Equal Opportunity Act 1986 (Cth) is dismissed summarily pursuant to s.17A(2) of the Federal Magistrates Act 1999 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2760 of 2006
| PETER ALFRED NEATE |
Applicant
And
| TOTALLY AND PERMANENTLY INCAPACITATED VETERANS’ ASSOCIATION OF NEW SOUTH WALES LIMITED |
Respondent
REASONS FOR JUDGMENT
(As Corrected)
Introduction and background
Mr Neate is a former member of the Totally and Permanently Incapacitated Veterans’ Association of New South Wales Limited (“the Association”). On 26 September 2006 he applied, pursuant to s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”) for relief in relation to asserted disability discrimination. On 13 March 2007 the Association applied to have Mr Neate’s application summarily dismissed. In this judgment I deal with that interlocutory application.
The Association seeks the summary dismissal of the application on the basis that Mr Neate has no reasonable prospects of success for the purposes of s.17A(2) of the Federal Magistrates Act 1999 (Cth) (“the Federal Magistrates Act”), that s.45 of the Disability Discrimination Act 1992 (Cth) (“the DDA”) operates as an effective bar to the claim and that Mr Neate’s application seeks relief which is unavailable in the Court’s associated or accrued jurisdiction.
The following statement of background facts is taken from paragraphs 1 to 3 and 8 to 11 of the respondent’s outline of submissions. The applicant, Mr Peter Neate, lodged a complaint of disability discrimination against the Association. The complaint was terminated by the delegate of the President of the Human Rights and Equal Opportunity Commission by letter dated 31 August 2006 on the basis that the complaint was lacking in substance and within s.46PH(1)(c) of the HREOC Act.
The claim relates to two acts of suspension and then an act of expulsion from membership of the Association during the course of 2002 to 2004.
As the name of the respondent indicates, membership of the Association is limited to veterans in receipt of the Special Rate Pension pursuant to s.24 of the Veterans’ Entitlements Act 1986 (Cth) (“the Veterans’ Entitlements Act”), that is, veterans who are totally and permanently incapacitated.
To be eligible for a Special Rate Pension, pursuant to the terms of s.24, a veteran must have not yet turned age 65 and:
(a) either:
(i)the degree of incapacity of the veteran from war‑caused injury or war‑caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b)the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war‑caused injury or war‑caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c)the veteran is, by reason of incapacity from that war‑caused injury or war‑caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; …
The membership restriction means that only veterans with a disability can become members of the Association. This eligibility requirement is narrower than other organisations that all veterans can join such s returned services clubs or Vietnam veterans associations. In the latter category, the veteran does not need to have a disability to become a member.
For the purposes of the summary dismissal application, both parties rely upon Mr Neate’s affidavit filed on 26 September 2006 and the substantial bundle of documents exhibited to that affidavit. They also rely upon the amended form of Mr Neate’s application filed on 29 November 2006. I gave leave for the Association to amend its reply to the application. The amended reply was filed on 13 March 2007.
Both parties took the opportunity to file detailed submissions and also made oral submissions on 4 April 2007. Notwithstanding that Mr Neate’s solicitor had advised me on 15 February 2007 that Mr Neate was ready to proceed with the determination of his application (his preference was to dispense with the need for an oral hearing but that was not agreed to by the respondent) and that all relevant evidence had been filed, Mr Neate now seeks to introduce into evidence documents annexed to his written submissions on the summary dismissal application. That is opposed by the Association.
The applicable legislation and Court rules
Section 17A(2) of the Federal Magistrates Act provides as follows:
(2)The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is defending the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
Rule 13.10 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) provides as follows:
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b)the proceeding or claim for relief is frivolous or vexatious; or
(c)the proceeding or claim for relief is an abuse of the process of the Court. …
Sections 5 and 6 of the DDA provide as follows:
5(1) 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.
(2)For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability.
6For 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 the discriminator requires the aggrieved person to comply with a requirement or condition:
(a)with which a substantially higher proportion of persons without the disability comply or are able to comply; and
(b)which is not reasonable having regard to the circumstances of the case; and
(c)with which the aggrieved person does not or is not able to comply.
Submissions
The Association contends that Mr Neate’s application is doomed to fail for a number of reasons. First, the Association contends that the points of claim and the evidence supporting them do not establish that Mr Neate suffers from Post Traumatic Stress Disorder (PTSD), as he asserts, and that there is no reliable evidence that he suffers from any particular behavioural problems linked to that PTSD. The Association asserts that documents annexed to Mr Neate’s written submissions that go to those issues are inadmissible. Secondly, the Association contends that, even if Mr Neate could establish that he suffers from PTSD with the behavioural implications that he asserts, his application must fail. In that regard, the Association contends that the material does not identify in any coherent way the base group against whom the asserted treatment of Mr Neate is to be compared for the purposes of the direct discrimination claims. In addition, the Association contends that the available material does not identify in any coherent way the condition, requirement or practice with which Mr Neate must establish he could not comply in order to establish a claim of indirect discrimination. Also, the points of claim are said to muddle the concepts of direct and indirect discrimination in paragraph 11.
Further, the Association contends that even if the problems in pleadings could be overcome, Mr Neate cannot succeed in the face of the decision of the High Court in Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92. The Association contends that the documentary record merely establishes that Mr Neate’s membership in the Association was suspended because of his behaviour and that he was subsequently expelled from the Association for failing to comply with that suspension. The Association contends that there is no link in the evidence between the conduct complained of by Mr Neate and his asserted PTSD.
The Association also contends (although its counsel Ms Ronalds conceded that the argument was not its best one) that s.45 of the DDA represents an effective bar to Mr Neate’s application because the Association was acting to protect the interests of the membership as a whole when it suspended and then expelled Mr Neate, in order to ensure that the special needs of the membership offered through the activities of the Association were able to be enjoyed free of the level of unacceptable conduct engaged in by Mr Neate.
Finally, the Association contends that Mr Neate’s application substantially seeks relief which the Court cannot grant either under the HREOC Act or under the Court’s accrued or associated jurisdiction. It is apparent that Mr Neate regards his suspension and expulsion from the Association as unfair and unlawful by reference to the Constitution and rules of the Association and seeks relief in the nature of private administrative law proceedings.
For his part, Mr Neate contends that there is a common substratum of facts relating to his suspension and expulsion and the circumstances leading up to those acts which supports the exercise by the Court of associated jurisdiction in order to grant the relief sought against the Association to, in effect, reverse those decisions. Further, Mr Neate contends that if he is permitted to introduce the additional evidence annexed to his submissions he will be able to establish that he suffers from PTSD and that his condition is severe with consequences relating to his behaviour. He contends that the available material establishes that officers of the Association, in the knowledge of his condition and the behaviour that stemmed from it, took advantage of his condition at a meeting of the Association on 22 October 2002. In effect, Mr Neate contends that he was “set up” so that he would misbehave to an extent where he could be suspended. He contends that a second suspension and ultimate expulsion are all connected to the initial suspension and should be seen as part of a common scheme.
Reasoning
I dealt with the relevant principles relating to summary judgment in Vivid Entertainment LLC & Ors v Digital Sinema Australia Pty Ltd & Ors [2007] FMCA 157 at [18]-[30]. I apply in this case the principles therein set out, in particular at [30]. Even if Mr Neate were given the opportunity to amend his pleading and introduce the additional documentary evidence to establish his disability and the behavioural consequences of it, only one conclusion can be said to be reasonable on his application, and that is that he was not suspended and expelled because of his PTSD. I so find. My reasons follow.
I see no prospect that Mr Neate could be successful in his application. In order to succeed on his claim of direct disability discrimination, Mr Nate must establish that he was treated less favourably because of his disability than people without the disability would have been treated. The first difficulty is that in order to be a member of the Association one must be in receipt of a pension which is dependent upon having a disability. All members of the Association must be taken to suffer from a disability for the purposes of the DDA. The available material indicates that in excess of half the members of the Association suffer from PTSD. The evidence filed by Mr Neate includes evidence to the effect that he is the only member of the Association who has been suspended or expelled. I pressed his solicitor to define the base group against which Mr Neate would be compared. He ultimately settled upon members of the Association who did not suffer from a severe form of PTSD to the same degree as Mr Neate. In order to be sure I requested confirmation from the solicitor of that formulation and he gave it.
In my view, for the purposes of identifying a comparator s.5 of the DDA does not distinguish between a disability which is severe and a disability which is less severe. The comparison must be between an applicant who has a particular disability and others who do not. Mr Neate has not established a proper base group that the treatment of him can be assessed against.
Secondly, as is obvious from the material, there is a long history of conflict between Mr Neate and certain officers of the Association that has no apparent connection to a disability. There have been allegations of physical violence and attempts to obtain apprehended violence orders. Mr Neate has been in conflict with officers of the Association over issues of the financial management of the Association, among others. It is obvious that there has been hostility between Mr Neate and certain officers of the Association. Mr Neate places emphasis on a statement made at the meeting on 22 October 2002 that he was given the opportunity to speak at that meeting so he could “hang himself”. Mr Neate contends that that shows that there was a scheme to induce him to behave badly because of his PTSD. I see no substance in that assertion. Officers of the Association may have been anxious to rid the Association of Mr Neate because of animosity or for a number of other reasons. It may have been anticipated that if Mr Neate was given the opportunity to speak at the meeting, what he said and the manner in which he said it would turn the membership against him. That appears to have been what occurred. Mr Neate was suspended, and his suspension was subsequently extended, because of his behaviour[1]. It is obvious from the material that Mr Neate ignored those suspensions and that he was subsequently expelled from the Association, which expulsion was confirmed by a meeting of the members of the of the Association.
[1] See the document headed “Details and Particulars of Charges Against Peter Neate Arising From the Meeting of Members Held Tuesday 22 October 2002” at pages 16 and 17 of the annexures to Mr Neate’s affidavit filed on 26 September 2006.
In my view, the available material does not, and cannot, establish any link between the suspension and expulsion of Mr Neate and his PTSD. Rather, it establishes that those actions were taken on account of Mr Neate’s behaviour. Because of that, the decision of the High Court in Purvis provides an insuperable obstacle to Mr Neate’s application.
Likewise, the claim of indirect discrimination must fail. The relevant condition, requirement or practice that Mr Neate was required to meet was the condition that he conduct himself in a manner becoming members of the Association. That he failed to do. As Mr Neate himself says, he is the only member of the Association who has been suspended and expelled. Over half the members of the Association are said to suffer from PTSD. It cannot be seriously contended that Mr Neate’s PTSD prevented him from complying with the condition, requirement or practice imposed on him. The rest of the membership, including those with PTSD, were apparently able to comply with it.
In relation to the claim in the Court’s associated or accrued jurisdiction, the Federal Court has provided guidance in New South Wales Department of Housing v Moskalev [2007] FCA 353 at [17]-[34]. The orders sought by Mr Neate could only be made if the Court were to make a finding of unlawful discrimination, which is not open to it in this matter, or if the Court has available to it additional jurisdiction to support the making of those orders. A claim may only be made in the Court’s associated or accrued jurisdiction if a claim is reasonably and properly made in the Court’s principal jurisdiction[2] (in this case the jurisdiction arising under the HREOC Act). As there is no substance to Mr Neate’s claim under the HREOC Act and the DDA and that claim is an insubstantial part of the real dispute (which is whether Mr Neate was lawfully suspended and expelled in accordance with the Association’s Constitution), his claim for relief in the Court’s associated or accrued jurisdiction should not be entertained. Should he wish to pursue those matters further, he should do so in a State court having jurisdiction in relation to the conduct of the affairs of the Association. That is the more appropriate forum for the resolution of the real dispute.
[2] Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572 in particular at [84] and [87]
I will order that Mr Neate’s application under the HREOC Act be dismissed summarily.
I will hear the parties as to costs.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 9 May 2007
CORRECTIONS
The word “Limited” has been added to the title of the respondent.
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