O'Connor v Ross (No 1) - [2002] FMCA 210

FEDERAL MAGISTRATES COURT OF AUSTRALIA

O’CONNOR v ROSS & ANOR (No.1)

[2002] FMCA 210

HUMAN RIGHTS – Disability discrimination – alleged victimisation – application of limited application provisions of the Disability Discrimination Act – whether the alleged discrimination a matter of international concern – whether the applicant entitled to claim victimisation.

Disability Discrimination Act 1992 (Cth), ss.5, 12, 25, 42, 125
Federal Magistrates Court Rules 2001 (Cth)

Human Rights and Equal Opportunity Commission Act1986 (Cth), ss.3, 26, 46PH

Aleksovski v AAA [2002] FMCA 81
Allen v United Grand Lodge of Queensland (HREOC H98/56, 12 April 1999)
Font v Paspaley Pearls & Ors [2002] FMCA 142
Miller v Wertheim & Anor [2001] FMCA 103
Tadawan v State of South Australia [2002] FMCA 25

Applicant:

NICOLE O’CONNOR

First Respondent:

Second Respondent:

GRAHAM ROSS

JANICE ROSS

File No:

SZ369 of 2002

Delivered on:

23 October 2002

Delivered at:

Sydney

Hearing Date:

13 September 2002

Judgment of:

Driver FM

REPRESENTATION

Solicitors for the Applicant:

Mr D Hillard
Clayton Utz

Solicitors for the Respondent:

Mr A Abaza
Andrew Abaza, solicitor

THE COURT DIRECTS THAT

The matter is to be listed for hearing for one day at Sydney via videolink to Brisbane, commencing at 10.00am on Monday, 10 March 2003.
The applicant has leave to file and serve on the respondents any amended application or points of claim on or before 22 November 2002.
The respondents have leave to file and serve on the applicant any amended defence on or before 20 December 2002 .
The applicant is to file and serve on the respondents any further affidavits on which she proposes to rely on or before 29 November 2002.
The respondents are to file and serve on the applicants any affidavits on which they propose to rely on or before 3 January 2003.
The parties have liberty to apply for further directions or orders on five days notice.

THE COURT ORDERS THAT

The respondents’ objection to the competency of the application and the applicant’s points of claim is disallowed.
The respondents are to pay the applicant’s costs of the objection, fixed at $1,820.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ369 of 2002

NICOLE O’CONNOR

Applicant

And

GRAHAM ROSS

First Respondent

JANICE ROSS

Second Respondent

REASONS FOR JUDGMENT

Introduction

On 29 May 2002 Ms Nicole O’Connor filed an application in this Court against Mr Graham Ross and Ms Janice Ross seeking relief for alleged disability discrimination contrary to the Disability Discrimination Act 1992 (Cth) (“the DDA”). The application included a claim in respect of an alleged offence contrary to s.26(2) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”) and s.42 of the DDA. In an information sheet filed on the same day the applicant alleged discrimination contrary to ss.5, 25(1)(b), 25(2) and 42 of the DDA. The application was supported by two affidavits filed on the same day. The application was filed 28 days after the termination of a complaint made by the applicant to HREOC in which the applicant had made the same allegations of disability discrimination and victimisation.
In a response filed on 1 July 2002 the respondents sought that paragraph 3 of the application, which asserted the commission of offences, should be struck out. The response also asserted that the Court has no jurisdiction because the complaint has not been properly terminated by the President of HREOC under s.46PH as HREOC allegedly failed to conduct any mediation.
At a directions hearing on 24 June 2002 I made orders that included an order that the application be amended to vary proposed order 3 to delete reference to an offence. Subsequently, on 12 July 2002, the applicant filed an amended application, paragraph 3 which states that:
The respondents have victimised the applicants contrary to the HREOC Act and Disability Discrimination Act.
On 24 July 2002 I made further orders at a directions hearing to prepare the matter for hearing on 16 September 2002. Those orders included an order that the applicants (by that stage Mr Franck O’Connor had been joined as a second applicant) were to file and serve on the respondents points of claim relating to the application on or before 31 July 2002. Points of claim were filed by the applicants in compliance with that order on 31 July 2002. Between that date and 13 September 2002 the respondents sought further and better particulars of the application. The solicitor for the respondents (Mr Abaza) was dissatisfied with the answers to the request for particulars. In addition, on 3 September 2002, Mr Abaza filed points of defence on behalf of the respondents in which the respondents object in point of law to the whole of the amended application on the grounds that this Court does not have jurisdiction to hear the application. The defence asserts that the DDA has no application to the circumstances of this case, that no cause of action is disclosed by the points of claim and that the amended application continues to be an attempt to pursue criminal proceedings against the respondents in relation to the allegation of victimisation. The points of defence seek that the amended application be struck out. This amounts to an objection to the competency of the amended application.
I conducted a further directions hearing on 13 September 2002 in view of the preliminary issues raised by the respondents. I reserved judgment on those issues on that day and gave leave for the legal representatives to file written submissions. Both Mr Abaza and Mr Hillard, who appeared pro bono for the applicants, have filed written submissions. In his initial written submissions filed on 20 September 2002, Mr Abaza seeks orders striking out paragraph 3 of the amended application and the whole of the applicant’s points of claim, plus costs. Further submissions on behalf of the respondents were filed on 30 September 2002 and 2 October 2002. Additional written submissions were faxed to the Court by Mr Abaza on 21 October 2002. Mr Hillard made written submissions on 13 September 2002 and further submissions on behalf of the applicant were filed on 26 September 2002 and 3 October 2002.

Consideration and findings

The first issue raised by the respondents by way of defence to the amended application is that the DDA has no application in these proceedings. Section 12 of the DDA deals with the application of the Act. Section 12(8) provides that Divisions 1, 2 and 3 of Part 2 of the DDA (other than ss.20, 29 and 30) of the DDA have limited application consistent with the limits of Commonwealth constitutional power. The section provides that the limited application provisions have effect in defined circumstances including to the extent that the provisions:
e)relate to matters of international concern.
The applicant asserts that the relevant provisions of the DDA apply as they relate to matters of international concern. The applicant asserts discrimination contrary to s.25(1)(b) and s.25(2) of the DDA, which are limited application provisions. It follows that to the extent that the applicant relies upon those provisions the DDA only applies to the extent that the matters dealt with in those provisions relate to matters of international concern. Those provisions deal with discrimination in relation to accommodation. It is sufficient for the application to come within the purview of the DDA if discrimination in relation to accommodation for disabled persons can be found to be a matter of international concern. The applicant asserts broadly that the prohibition of discrimination against persons with a disability in the provision of accommodation relates to a matter of international concern and gives effect to the limited application provisions contained in s.25(1)(b) and s.25(2)(b) of the DDA. The applicant relies upon the following international references:
a)paragraph 6 of the Standard Rules on the Equalisation of Opportunities for Persons with Disabilities, adopted by the Resolution of the General Assembly of the United Nations on 4 March 1994;
b)the Declaration on the Rights of Disabled Persons, proclaimed by the General Assembly of the United Nations on 9 December 1975 and reproduced as Schedule 5 to the HREOC Act;
c)the proclamation by the General Assembly of the United Nations of 1981 as the International Year of Disabled Persons;
d)the adoption by the General Assembly of the United Nations of the World Program of Action Concerning Disabled Persons on 3 December 1982. The United Nations notes at paragraph 6 of the Standard Rules on the Equalisation of Opportunities for Persons with Disabilities, that both the World Program of Action and the International Year of Disabled Person “emphasised the right of person with disabilities to the same opportunities as other citizens”;
e)the General Assembly of the United Nations declaration of 1983-1992 as the International Decade of Disabled Persons;
f)the observance of an International Day of Disabled Persons on 3 December each year, “with a view to the achievement of the full and equal enjoyment of human rights and participation in society by persons with disabilities” – United Nations High Commission for Human Rights resolution 1993/29, 5 March 1993;
g)the General Assembly of the United Nations Resolution 56/168, “Comprehensive and integral international convention to promote and protect the rights of persons with disabilities”, 19 December 2001, has been given direction by the conduct of an Expert Group Meeting in Mexico City in June 2002, and the establishment of an Ad Hoc Committee, meeting in New York in August 2002;
h)by Resolution 2002/61, the United Nations Commission on Human Rights recalled that “all persons with disabilities have the right to protection against discrimination” and encouraged governments to “take account of the right of persons with disabilities to housing”;
i)the existence and role of numerous international non-governmental organisations advocating for the need for a comprehensive UN Convention on the Rights of People with Disabilities. For example:
i)Disabled Peoples’ International has membership in 160 countries, and consultative status with the United Nation’s Economic and Social Council, the World Health Organization, United Nations Educational, Scientific and Cultural Organization (UNESCO) and International Labor Organization and other international bodies;
ii)The Beijing Declaration on the Rights of Persons with Disabilities in the New Century, adopted on 12 March 2000 at the World NGO Summit on Disability.
I have perused those documents. In Resolution 2002/61 the United Nations Commission on Human Rights recognises that any violation of the fundamental principle of equality or any discrimination or other negative differential treatment of persons with disabilities is inconsistent with the standard rules on the equalisation of opportunities for persons with disabilities and is an infringement of the human rights of persons with disabilities. The resolution calls upon the Secretary-General to maintain the integrity of programs within the United Nations system relating to persons with disabilities, including the United Nations’ voluntary fund on disability, in order to promote the rights and the equalisation of opportunities and full inclusion within societies of persons with disabilities. In addition, and perhaps more particularly, article 9 of the declaration of the Rights of Disabled Persons proclaimed by the General Assembly of the United Nations, resolution 3447(xxx) of 9 December 1975 provides that:
Disabled persons have the right to live with their families or with foster parents and to participate in all social, creative or recreational activities. No disabled person shall be subjected, as far as his or her residence is concerned, to differential treatment other than that required by his or her condition or by the improvement which he or she may derive therefrom. If the stay of a disabled person in a specialised establishment is indispensable, the environment and living conditions therein shall be as close as possible to those of the normal life of a person of his or her age.
In my view, the above declaration is in itself sufficient to establish that the equal access of disabled persons to accommodation with able bodied persons has been, since 1975, and remains a matter of international concern. I adopt, with respect, the views expressed by the hearing commissioner in Allen v United Grand Lodge of Queensland (HREOC H98/56, 12 April 1999) concerning the demonstration of international concern which United Nations Resolutions of the kind referred to demonstrate:
Clearly the United Nations Resolution and the Rules annexed evidence the joint concern of Member States to promote the equalisation of opportunities for persons with disabilities. The corollary of that proposition is that discrimination by one person against another on the ground of the latter’s disability has to be rejected. The equalisation of opportunities for the disabled is the very antithesis of regime which condones discrimination on the ground of one’s disability. Therefore one can only conclude that the equalisation of opportunities for the disabled and the avoidance of discrimination on the ground of disability has become a matter of international concern.
With all due respect to Mr Abaza, nothing has been raised in his written submissions that could dissuade me from that view. I find that the limited application provisions relied upon by the applicant in these proceedings do apply in these proceedings.
The respondents properly objected to the assertion in the original application that they had been guilty of criminal offences. The jurisdiction of this Court is to deal with complaints of discrimination that HREOC has been unable to resolve. The jurisdiction of this Court does not extend to the hearing of charges for alleged offences against the DDA or the HREOC Act. It was for that reason that I ordered that the application be amended to delete reference to an offence. That has been done. Mr Abaza submits that the amended application remains objectionable because it continues to assert victimisation contrary to either or both of s.42 of the DDA and s.26 of the HREOC Act. This objection indicates a partial misunderstanding. The DDA provides that it is an offence for a person to commit an act of victimisation. Where victimisation is dealt with as an offence, it will be prosecuted by the Director of Public Prosecutions in a court of competent jurisdiction other than this Court. However, a person may also make a complaint of victimisation to HREOC which the Commission will attempt to resolve by conciliation. Where conciliation is unsuccessful, the matter will then be referred for hearing by this Court or the Federal Court if application is made. Section 3(1) of the HREOC Act defines unlawful discrimination as acts, omissions or practices that are unlawful under Part 2 of the DDA and specifically includes any conduct that is an offence under Division 4 of Part 2 of the DDA. It follows that the applicant was entitled to make a complaint of victimisation to HREOC and that this Court has jurisdiction to consider the claim in respect of victimisation where HREOC has been unable to resolve the complaint by conciliation and the President has issued a notice of termination. This Court has dealt with such claims on a number of occasions: Tadawan v State of South Australia [2001] FMCA 25; Aleksovski v AAA [2002] FMCA 81; and Font v Paspaley Pearls & Ors [2002] FMCA 142. I add, for completeness, that my conclusions on this issue have taken into account s.125 of the DDA. The applicant’s right of civil action derives from the HREOC Act, not the DDA.
In my view, however, the complaint of victimisation must be limited to victimisation contrary to s.42 of the DDA. The definition of “unlawful discrimination” in s.3(1) of the HREOC Act does not include conduct that is an offence under s.26 of the HREOC Act. It follows that the applicant is only entitled to pursue her claim of victimisation to the extent that it relies upon s.42 of the DDA. The respondents’ assertion that paragraph 3 of the amended application and paragraph 7 of the points of claim should be struck out lacks substance to the extent that the applicant relies upon s.42.
In his initial written submissions Mr Abaza broadens his attack upon the amended application and points of claim to seek orders striking out the balance of the points of claim. This appears to be an assertion that the remaining parts of the points of claim do not disclose a cause of action. I disagree. This appears to be a request to the Court to exercise its power to strike out a process pursuant to rule 13.10(a) of the Federal Magistrates Court Rules 2001. I dealt with the operation of this rule in Miller v Wertheim & Anor [2001] FMCA 103 (affirmed on appeal). In order to succeed in this defence as a preliminary issue, the respondents must establish that the points of claim really disclose no question to be tried. I have already found that the limited application provisions of the Act apply and that the applicant is entitled to pursue a claim of victimisation based upon the DDA. Further, the points of claim filed by the applicant disclose an arguable case of disability discrimination in connection with accommodation. Mr Abaza is dissatisfied with the specificity of the points of claim but that is not a reason to strike them out. This is not a court of strict pleading, as has been noted in earlier human rights proceedings: Font v Paspaley Pearls at paragraph 166. The points of claim filed by the applicant are sufficient to identify the essential elements of the case. Beyond that, it is up to the applicant to build and sustain her case by evidence. Accordingly, I will not strike out any part of the points of claim.
Mr Abaza had earlier raised an issue of anshun estoppel in relation to the amended application but he appears not to pursue this in his written submissions. In any event, for completeness, I adopt paragraphs 12-19 of the written submissions of the applicant on this issue, filed on 13 September 2002.
If there was any issue of estoppel it was limited to the application of the former second applicant, Mr Franck O’Connor. No issue of estoppel arises in relation to the application of the first applicant, Ms Nicole O’Connor. I have given leave for the application to be amended to delete Mr Franck O’Connor as an applicant. Now that that has been done, no issue of estoppel remains.
Mr Abaza had earlier sought an indemnity costs award against the solicitors for the applicant. I made clear at the directions hearing on 13 September 2002 that I saw no basis for any award of costs being made against the solicitors for the applicant on an indemnity or any other basis. In his written submissions Mr Abaza seeks an order that the applicant pay the respondents’ costs thrown away, fixed at $3,412.50, within seven days. The respondents have established no basis for an award of costs in their favour to this point. The preliminary objections to the amended application and points of claim have been unsuccessful and the matter should now proceed to trial. In addition, no costs have been thrown away by the conduct of the applicant. The applicant had filed evidence up to 13 September 2002 and was apparently ready for trial on the following Monday. No evidence had been filed on behalf of the respondents, who chose instead to mount a preliminary legal defence. That preliminary legal defence has been heard and determined.
The objection raised by the respondents to the amended application and points of claim has been resolved in favour of the applicant. She is entitled to an order for costs in her favour in respect of the hearing of that objection. The issue has been dealt with as a discrete event as a stage 2 proceeding under Schedule 1 to the Federal Magistrates Court Rules and the applicant is entitled to receive costs in accordance with the scale. For the sake of certainty I will fix the amount of costs to be paid.

I will give directions for the further preparation of this matter for trial.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 23 October 2002