Oorloff & Anor v Lee & Ors

[2004] FMCA 893

FEDERAL MAGISTRATES COURT OF AUSTRALIA

OORLOFF & ANOR v LEE & ORS [2004] FMCA 893

HUMAN RIGHTS – Disability discrimination – unlawful discrimination – application for summary dismissal of claim/proceedings – whether no reasonable course of action – whether abuse of the process of the court – recognition of public interest in litigation being finalised – whether respondents should have to face more than one set of proceedings arising from the same factual scenario, and raising the same allegations – where continuation of the proceedings would be manifestly unfair to the respondents – where applicant’s case is unarguable and doomed to fail – application dismissed.

Human Rights and Equal Opportunity Commission Act 1986
Disability Discrimination Act 1992 (Cth)

Administrative Decisions (Judicial Review) Act 1997 (Cth)
Federal Magistrates Court Rules 2001 (Cth)
Federal Court of Australia Rules 1979 (Cth)

SZBBL v MIMIA (2004) FMCA 185
McKellar v Container Terminal Management Services Limited (1999) 165 ALR 409

Webster v Lampard (1993) 177 CLR 598
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125

Lee v Minister for Immigration [2002] FMCA 279

Applicant A135/2002 v Minister for Immigration [2003] FCA 708 (9 July 2003)

Applicant A163 of 2002 v Minister for Immigration [2003] FCA 677

Xie v Immigration Department [1999] FCA 365

Fancourt v Mercantile Credits Ltd (1963) 154 CLR 87

Murex Diagnostics Australia Pty Ltd v Chiron Corp [1995] FCR 194

SZBWF v Minister for Immigration [2004] FMCA 83

Chung v University of Sydney [2001] FMCA 94

Yo Han Chung v University of Sydney [2002] FCA 186

Kosi v Minister for Immigration [2003] FMCA 340 (8 August 2003)

Travers obo Travers v New South Wales [2000] FCA 1565

Vintila v Federal Attorney-General [2001] FMCA 110
Paramasivam v Grant & Anor [2001] FCA 758
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125.
Webster v Lampard (1993) 177 CLR 598.

Assal v Department of Health, Housing & Community Services(unreported, HREOC, Sir Ronald Wilson, 26 September 1990). Extract at [1992] EOC 92-409.
Re Morton; Ex Parte Mitchell Products Pty Ltd (1996) 21 ASCR 497
Corporate Affairs Commission v Solomon, NSW Court of Appeal, unreported, 1 November 1989
Rajski v Scitec (Unreported, NSW Court of Appeal, 16 June 1986)
Ebber v Human Rights and Equal Opportunity Commission (1995) 129 ALR 455

Paramasivam v Wheeler & Ors [2000] FCA 1559

Barnes v Northern Land Council & Ors [2002] FMCA 54 [35]
Hunter v Chief Constable of the West Midands Police (1982) AC 529

Applicants:

GERALD MORRISON OORLOFF &

BENITA KATHLEEN OORLOFF

First Respondent: ELIZABETH LEE

Second Respondent: ROBYN MICHELLE ARMSTRONG

Third Respondent: MICHAEL DAMIAN MURPHY

Fourth Respondent: RAGU APPUDURAI

Fifth Respondent: JOANNE LEED

Sixth Respondent: HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

File No: MZ 190 of 2003

Delivered on: 7 December 2004

Delivered at: Melbourne

Hearing date: 19 September 2003

Judgment of: Walters FM

REPRESENTATION

Counsel for the Applicants: In person

Counsel for the First Respondent: Mr Redd

Solicitors for the First Respondent: Middletons Lawyers

Counsel for the Second Respondent: No appearance

Counsel for the Third Respondent: In person

Counsel for the Fourth Respondent: Mr Phillips

Counsel for the Fifth Respondent: No Appearance

Counsel for the Sixth Respondent: No Appearance

Solicitors for the Sixth Respondent: HREOC

ORDERS

1. Mr Oorloff’s application filed 25 February 2003 be dismissed pursuant to the provisions of Rule 13.10 of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 190 of 2003

GERALD MORRISON OORLOFF &
BENITA KATHLEEN OORLOFF

Applicants

And

ELIZABETH LEE, ROBYN MICHELLE ARMSTRONG, MICHAEL DAMIAN MURPHY, RAGU APPUDURAI and HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

Respondents

REASONS FOR JUDGMENT

Introduction

1. Mr and Mrs Oorloff have commenced proceedings in this Court under the provisions of the Human Rights and Equal Opportunity Commission Act (1986) (“HREOCA”). They allege that each of the respondents discriminated against them (in different ways) on the ground of a disability of Mr Oorloff. Mr Oorloff’s disability has been described as “ill health” and an anxiety condition.

2. The respondents all deny that they have discriminated against Mr and Mrs Oorloff on the ground of Mr Oorloff’s alleged disability (or on any other ground). They go further. In effect, they argue that the claim made by Mr and Mrs Oorloff should be dismissed at the outset. They argue that it is clearly lacking in substance and cannot succeed. And they are correct.

Background

1. Mr and Mrs Oorloff’s claims have their genesis in two sets of legal proceedings. The first set of proceedings was between Mr Oorloff and his former employer, the Public Transport Corporation (formerly the Melbourne and Metropolitan Tramways Board). The second set of proceedings was between Mr and Mrs Oorloff and the Jennings Group Limited.

2. I shall refer to the first set of proceedings as “the PTC case” and the second set of proceedings as “the Jennings case”.

The PTC Case

1. The PTC case was conducted in the Human Rights and Equal Opportunity Commission (“HREOC”).

2. Mr Oorloff commenced proceedings against his former employer, in HREOC, in or about 1992. He alleged that he had been subjected to racial harassment in the course of his employment. He also alleged that the conduct of his employer — when it offered him an inferior position as a tram conductor (with no other option apart from dismissal) — constituted discrimination in employment on the grounds of his race.

3. For various reasons, the PTC case took a long time to come to trial in HREOC.

4. On the day before the trial (10 October 1995), PTC offered to settle the case on the basis that it pay $5,000.00 to Mr Oorloff. The offer was rejected.

5. On the morning of the hearing (11 October 1995), further discussions took place. This time, PTC offered $10,000.00. Mr Oorloff accepted the offer, and the PTC case came to an end.

6. Mr Oorloff argues, however, that he was, in effect, coerced into accepting the offer of $10,000.00. He says that he was forced to accept the offer by his own legal team — comprising his then solicitor (Ms Lee) and his barrister (Mr Murphy).

7. According to Mr Oorloff, Ms Lee and Mr Murphy took advantage of his disability to coerce him into accepting the settlement. Ms Lee and Mr Murphy strenuously deny that they placed any inappropriate pressure on Mr Oorloff to settle the PTC case. They say that PTC’s offer was reasonable in all the circumstances — and particularly when regard is had to the fact that, late on 10 October 1995, PTC’s lawyers disclosed certain material that was likely to have a significant adverse effect on Mr Oorloff’s case. Ms Lee and Mr Murphy believe that the settlement reached was a good outcome.

8. Shortly after the PTC case was settled, Mr and Mrs Oorloff wrote to their GP, complaining about the behaviour of Ms Lee and Mr Murphy. The GP, in turn, wrote to the then president of HREOC about the matter. About a month later, the then president of HREOC responded to the GP to the effect that such matters “ … should properly be dealt with by the Law Institute of Victoria or the Victoria Bar Council”.

9. In June 1996, a Mr Anderson wrote to the Victorian Bar (on behalf of Mr Oorloff) complaining about Mr Murphy’s behaviour at the time that the PTC case was settled. Mr Murphy responded to the complaint in a letter dated 18 July 1996. A letter from Ms Lee was forwarded to the Victorian Bar on the same day.

10. In August 1996, the Ethics Committee of the Victorian Bar wrote to Mr Anderson advising him that “ … the facts did not disclose that Mr Murphy may have committed any disciplinary offence  … ” and that it was therefore resolved to dismiss the complaint. The letter informed Mr Anderson that Mr Oorloff could complain further — to the Lay Observer — if he was minded to do so.

11. Mr Oorloff did complain to the Lay Observer, who refused to interfere with the Ethics Committee’s decision.

12. On 10 October 1997, Mr Oorloff lodged a complaint with HREOC claiming that Ms Lee and Mr Murphy took advantage of his disability to coerce him into settling the PTC case.

13. The October 1997 complaint included matters arising out of the Jennings case. It is appropriate, therefore, that I now make reference to that case.

The Jennings Case

1. The Jennings case was conducted in the (State) Magistrates Court of Victoria.

2. Mr and Mrs Oorloff commenced proceedings against the Jennings Group Limited in or about 1992. The Jennings Group had sold Mr and Mrs Oorloff a block of land in May 1985, and had built a home for them on the block. Mr and Mrs Oorloff alleged, amongst other things, that they were mistaken as to the true content and effect of the building contract, and that the house was not constructed “ … in a proper and workmanlike manner, using good and proper materials”.

3. It would appear that Mr Oorloff first sought advice in relation to the problems associated with the house and the building contract in 1989. He was dissatisfied with the services of the solicitor that he retained at that stage, and did not change solicitors until some time in or about 1991.

4. Mr and Mrs Oorloff eventually instructed Macpherson & Kelley, solicitors, to represent them in the Jennings case.

5. The Jennings case was listed for a pre-hearing conference on 28 July 1993. Macpherson & Kelley briefed Mr Appudurai, a barrister, to attend the pre-hearing conference.

6. It would appear that Mr Appudurai first met Mr and Mrs Oorloff at court, shortly before the pre-hearing conference. According to Mr Appudurai, he took instructions from Mr and Mrs Oorloof, and advised them of his view of their prospects of success in the proceedings.

7. The pre-hearing conference took place as scheduled, but did not result in the Jennings case being settled. The Jennings Group did, however, make an offer to settle the case. They offered to pay Mr and Mrs Oorloff a total of $5,000.00.

8. The pre-hearing conference ended on the basis that the Jennings Group’s offer of $5,000.00 was to remain open for seven days so that Mr and Mrs Oorloff could consider their position. The pre-hearing conference was then adjourned to a telephone mention on 5 August 1993.

9. Mr Appudurai had no further contact with Mr and Mrs Oorloff after 28 July 1993.

10. On a date subsequent to 28 July 1993 (but before the end of September 1993) the Jennings Group offered to pay Mr and Mrs Oorloff $7,500.00 in full and final settlement of the Jennings case.

11. It seems that the Jennings case came to an end when Mr and Mrs Oorloff accepted the offer of $7,500.00 in October or November 1993 (and, at the same time, signed a release that had been amended in accordance with instructions that they had given to Macpherson & Kelley).

12. It is difficult to identify the true nature of Mr and Mrs Oorloff’s complaint against Mr Appudurai. It would appear that their argument is to the effect that Mr Appudurai forced them to accept a settlement which was less than they would have been awarded, and that Mr Appudurai “acted in collusion” against them in full knowledge that Mr Oorloff “suffers from a severe disability”. The fact of the matter is, however, that the case did not settle at the pre-hearing conference on 28 July 1993 and it is difficult to see, therefore, how Mr Appudurai forced them to do anything.

13. Mr Appudurai strenuously denies that he placed any inappropriate pressure on Mr and Mrs Oorloff to settle the Jennings case. His view is that the offer that was made at the pre-hearing conference was a reasonable one, given certain evidentiary difficulties that Mr and Mrs Oorloff faced.

14. At some stage prior to December 1994, Mr Oorloff complained to the Victorian Bar about Mr Appudurai’s behaviour. In late December 1994, the secretary of the Ethics Committee of the Victorian Bar wrote to Mr Appudurai, and to Mr and Mrs Oorloff, advising that the complaint had been dismissed — without the need for a response from Mr Appudurai. It appears that Mr Appudurai did not know that a complaint had been made against him until he received the letter from the Ethics Committee.

15. Once again, Mr and Mrs Oorloff were informed that, if they were unhappy with the Victorian Bar’s decision, then they could refer the matter to the Lay Observer.

16. Mr Appudurai apparently heard nothing further regarding the Jennings case until early 2003.

1997 Complaint to HREOC

1. Events associated with the PTC case and the Jennings case became the subject of a complaint which Mr and Mrs Oorloff made to HREOC on 10 October 1997. A copy of the actual complaint lodged on that day is not part of the material now before the court.

2. On 4 August 1998, however, the then president of HREOC wrote to Mr and Mrs Oorloff. The letter is part of exhibit MDM3 to the affidavit of Mr Murphy sworn 11 August 2003, and reveals that Mr and Mrs Oorloff had complained to HREOC about Ms Lee, Mr Murphy and Mr Appudurai. It also reveals that the delegate of the Disability Discrimination Commissioner ceased inquiring into the complaints, and that Mr and Mrs Oorloff wrote a further letter to HREOC on 6 May 1998 endeavouring to persuade the president to overrule the delegate’s decision.

3. The relevant parts of the letter dated 4 August 1998 from the then president of HREOC to Mr and Mrs Oorloff are as follows:

   I have given close consideration to your complaints and have carefully reviewed all documentation in the Commission’s files. I have taken into account the matters that you put before me in your letter of 6 May 1998. However, I am in agreement with the delegate that each claim is out of time and has been adequately dealt with elsewhere within the meaning of the Disability Discrimination Act 1992 (Cth).

   I realise that you have attempted to seek redress through other avenues in relation to the conduct you complain about and that Mr Oorloff has been ill for some of this period. I have taken into account your submission that your complaints were lodged on 10 October 1997. However, each complaint is still substantially out of time, being brought either two or over four years after the events described occurred. I also realise that the outcomes of the Lay Observer’s investigations were not satisfactory to you. However, I am unable to conclude that the Lay Observer did not adequately deal with the matters. Taking both of these factors into account, I have decided to dismiss the above complaints … .

   While I sympathise with your frustration, you will appreciate that I have a duty in the public interest to ensure that proceedings that have been dealt with elsewhere and that have been lodged after a long time period are not unduly prolonged and, accordingly, I dismiss the above claims.

4. In March 1999, Mr and Mrs Oorloff sought a review of the president’s decision of 4 August 1998. They were advised, however, that HREOC could not review its president’s decision and that the complaints had been “finalised and closed”. Mr and Mrs Oorloff were informed, however, that they could apply to the Federal Court under the provisions of the Administrative Decisions (Judicial Review) Act 1997 (Cth) for a review of the president’s decision. They were also advised that the time limit for such an application was 28 days.

5. It is not possible to ascertain from the material now before the court what happened between March 1999 and October 2002. Suffice it to say that, on 13 October 2002, Mr Oorloff lodged a further complaint, in HREOC, against Mr Murphy, Ms Lee and Mr Appudurai.

2002 Complaint

1. On 13 October 2002, Mr Oorloff (alone) lodged a further complaint with HREOC against Mr Murphy, Ms Lee and Mr Appudurai. The complaint provides very few details, but refers to various attachments.

2. The complaint also contains the following comment:

   Delays attributable to files being held up in Federal MP’s office despite reassurance they had been despatched to HREOC a long time ago which was untrue and unjust!

3. In answer to the questions in the complaint form “What do you want to achieve by making this complaint? What kind of outcome would satisfy you?”, Mr Oorloff wrote:

   The sums of money which we lost and for which we sued and claimed in protracted actions — lost to us because of barristers’ abuse of my disability. Please refer attachments.

4. On 30 January 2003, the delegate of the president of HREOC wrote two letters to Mr Oorloff. The first letter dealt with the complaint against Ms Lee and Mr Murphy arising out of the PTC case. The second dealt with the complaint against Mr Appadurai arising out of the Jennings case.

5. In both letters, the delegate wrote:

   I have carefully considered the information you have provided to the Commission and I have decided to terminate your complaint pursuant to section 46PH(1)(b) of the HREOCA, on the basis that the complaint was lodged more than twelve months after the alleged unlawful discrimination took place. I have also decided to terminate your complaint pursuant to sections 46PH(1)(d) and 46PH(1)(f) of the HREOCA, on the basis that the complaint has been adequately dealt with by the Bar Council of Victoria and the Human Rights and Equal Opportunity Commission.

6. Both letters were accompanied by formal Notices of Termination.

7. Copies of the two letters, and of the Notices of Termination, are attached to these Reasons.

8. On 25 February 2003, Mr and Mrs Oorloff filed an application in this court. The application was signed by Mr Oorloff (alone) and was accompanied by an affidavit sworn by Mr Oorloff. Under the heading “Final Orders Sought by Applicant” in the application, Mr Oorloff wrote:

   I seek compensation for the loss of earnings, etc I was deprived of over the years and vide ruling of Sir Ronald Wilson dated 11 May 1994 that the Tramways Board erred in offering me an inferior position to that held by me.

9. Under the heading “Interim or Procedural Orders Sought” in the complaint, Mr Oorloff wrote:

   We therefore seek compensation from Mr Murphy and (Ms Lee) and co for coercing us to accept much less than they had claimed and we agreed upon and similarly (Mr Appadurai) briefed by Macpherson & Kelley who abused my disability to accept less than was claimed in the complaint against Jennings knowing full well that such pittance would barely cover rectification of defects and our costs.

Summary Dismissal of Claim — Principles

1. The principles which apply to an application to dismiss proceedings at the outset were summarised by Driver FM in SZBBL v MIMIA (2004) FMCA 185:

   Part 4, rules 4.01 and 4.02 of the Federal Magistrates Court Rules relevantly provide that an application to the Court must state precisely and briefly the orders sought and the basis on which the orders are sought. Rule 4.05(1) provides that an applicant must file an affidavit in support of an application, whether seeking final, interim or procedural orders.

   Part 13, rule 13.10(a) of the Federal Magistrates Court Rules deals with the dismissal of a proceeding or claim for relief if that proceeding or claim discloses no reasonable cause of action.

   The power to strike out or dismiss an application on the basis that there is no reasonable cause of action disclosed should only be exercised where it is inevitable that the proceeding will fail[1] and should be exercised with exceptional caution, especially where the ultimate outcome depends on the resolution of disputed facts.[2] 

   An order for summary dismissal should only be made where the claims are clearly untenable and cannot succeed[3] or where it is clear that there is really no question to be tried,[4] that the grounds for the application are unarguable[5] or it is a hopeless case with no chance of success[6].

   In circumstances where an applicant is self-represented, it has been held that the Court should independently consider whether an arguable case based on the material could be made out by the applicant[7].

   [1] See Webster v Lampard (1993) 177 CLR 598 at [611], per Mason CJ, Deane and Dawson JJ

   [2] See General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at [129]-[130], per Barwick CJ

   [3] See Lee v Minister for Immigration [2002] FMCA 279 at [24] per Hartnett FM; Applicant A135/2002 v Minister for Immigration [2003] FCA 708 (9 July 2003) per Finn J at [3]-[6]; Applicant A163 of 2002 v Minister for Immigration [2003] FCA 677 at [1] per Selway J, and; Xie v Immigration Department [1999] FCA 365 at [20] per Carr J

   [4] Fancourt v Mercantile Credits Ltd (1963) 154 CLR 87 at [99]

   [5] Murex Diagnostics Australia Pty Ltd v Chiron Corp [1995] FCR 194

   [6]SZBWF v Minister for Immigration [2004] FMCA 83 per Barnes FM at [25]

   [7] Chung v University of Sydney [2001] FMCA 94 at [14] per FM Driver; upheld on appeal in Yo Han Chung v University of Sydney [2002] FCA 186. See also: Kosi v Minister for Immigration [2003] FMCA 340 (8 August 2003) per FM Driver, where immigration proceedings were summarily dismissed on the basis that no reasonable cause of action was disclosed

1. I also agree with the summary of the law in relation to this subject set out in paragraphs 1 to 12 of the written submissions prepared by Mr Redd (on behalf of Ms Lee):

   1.The power of the Federal Magistrates Court to summarily dismiss an application derives from Rule 13.10 of the Federal Magistrates Court Rules 2001 (Cth) (‘the Rules’), which is worded in terms similar to Order 20, Rule 2 of the Federal Court of Australia Rules 1979 (Cth).

   2.The general principles for summary dismissal were explained by Weinberg J in McKellar v Container Terminal Management Services Limited[8]… At 415, Weinberg J noted ‘[i]t is clearly established that the jurisdiction of the court to dismiss a claim upon the basis that it discloses no reasonable cause of action is to be sparingly invoked.’

   [8] (1999) 165 ALR 409, especially at 415-17.

   3.After surveying the authorities on the law of summary dismissal, Weinberg J concluded at 416 that:

   They confirm that a proceeding should not be dismissed summarily merely on the ground that it appears, at the early stage of the hearing of the motion brought for that purpose, to advance a highly implausible claim which will very probably fail, but only where the claim may properly be described as unarguable, and almost incontestably bad, or where the claim is otherwise objectionable as an abuse of process of the court.

   4.In the context of discrimination legislation, both the Federal Magistrates Court and Federal Court have emphasised that the power to summarily dismiss a matter must be exercised with ‘exceptional caution’[9] and be ‘sparingly invoked’.[10] In particular, the power should be used with great care when the litigant is unrepresented.[11]

   [9] Paramasivam v Grant & Anor [2001] FCA 758, [14] applying General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125.

   [10]Chung [7].

   [11] Ibid [9].

   5.The Federal Court has also held, however, that

   Whilst circumspection is appropriate, if the evidence before the Court establishes that if the matter were to go to trial in the ordinary way the application must fail then a case for summary dismissal of the proceedings is made out.[12]

   [12] Paramasivam v Grant & Anor [2001] FCA 758, [14] applying Webster v Lampard (1993) 177 CLR 598.

   6.Lehane J in Travers obo Travers v New South Wales[13] affirmed the view of Sir Ronald Wilson in the HREOC decision of Assal v Department of Health, Housing & Community Services[14] that:

   [13] [2000] FCA 1565 (‘Travers’).

   [14] (unreported, HREOC, Sir Ronald Wilson, 26 September 1990). Extract at [1992] EOC 92-409.

   it is in the public interest, as well as the interests of both parties, that the hearing of a complaint which is clearly shown to be lacking in substance should be summarily terminated. Certainly, it is no kindness to a complainant to shrink from the exercise of the power … in circumstances where that exercise is clearly warranted.

   7.Lehane J added:

   That is especially so, perhaps, in this Court where an unsuccessful litigant, if proceedings are protracted, may face what can be the considerable burden of a costs order.[15]

   [15]Travers [19].

   8.Special considerations apply in applications for summary dismissal with an unrepresented litigant. Sackville J in Re Morton; Ex Parte Mitchell Products Pty Ltd[16] surveyed the authorities and noted that the Court:

   [16] (1996) 21 ASCR 497.

   must … have regard not merely to the litigant in person but also to the position of the other party or parties concerned and to what is required, in justice, to prevent the unnecessary expenditure of public and private resources.[17]

   [17] Ibid, 514 quoting Corporate Affairs Commission v Solomon, NSW Court of Appeal, unreported, 1 November 1989, Mahoney AP.

   9.In conclusion, at 514 Sackville J quoted with approval the words of Mahoney JA in Rajski v Scitec:[18]

   Where a party appears in person, he will ordinarily be at a disadvantage. That does not mean that the court will give to the other party less than he is entitled to. Nor will it confer upon the party in person advantages which, if he were represented, he would not have. But the court will, I think, be careful to examine what is put to it by a party in person to ensure that he has not, because of lack of legal skill, failed to claim rights or put forward arguments which otherwise he might not have done.

   10.Both the Federal Magistrates Court and the Federal Court have made it clear that the onus in a summary dismissal application is on the respondent, who must establish ‘a high measure of satisfaction in the Court that the proceedings are of a character that they should be dismissed.’[19]

   11.In determining whether there is an arguable case, the Court is not limited to considering the arguments put before it by the party defending the application, but may look at all the material to assess independently whether an arguable case based on the material could be made out.[20]

   12.Drummond J in Ebber v Human Rights and Equal Opportunity Commission (1995) 129 ALR 455 at 468 noted that:

   A complainant must therefore have at the outset of the inquiry into his complaint sufficient material, it need not be legally admissible evidence, … to show that he has more than a remote possibility of a well-founded claim if he is to defeat an application for summary dismissal of the case that can be made out at the start of the inquiry.

   [18] (Unreported, NSW Court of Appeal, 16 June 1986).

   [19]Paramasivam v Wheeler & Ors [2000] FCA 1559, [8].

   [20]Chung [14]; Barnes v Northern Land Council & Ors [2002] FMCA 54 [35]. (‘Barnes’).

Written Submissions Were Filed

1. Detailed submissions were presented to the court on behalf of Ms Lee, Mr Murphy and Mr Appadurai, and Mr Oorloff was given an opportunity to respond to those submissions.

Discussion — General Approach

1. I have read all the material filed by or on behalf of Mr Oorloff and the respondents. Set out in the schedule attached to these Reasons is a list of all the documents provided to the Court. Some of the documents are primary documents presented to the court as part of a party’s case (such as that party’s formal response or affidavit), whilst others are contained within annexures to affidavits or (for example) within a bundle provided by Mr Oorloff.

2. At the hearing of the application for summary dismissal of Mr Oorloff’s claim, none of the parties objected to the court reading all of the material provided to it by each of the parties.

3. In the following sections of these Reasons, I have dealt with such matters as I consider are necessary to determine the application now before the Court.

Mrs Oorloff

1. To the extent that the application filed 25 February 2003 amounted to a claim for relief by Mrs Oorloff, it must be dismissed.

2. This court lacks jurisdiction to hear a complaint by Mrs Oorloff against the respondents. That is so because Mrs Oorloff has not had a complaint against the respondents (or any of them) terminated by the president of HREOC under s.46PE or 46PH of the HREOCA. Under s.46PO of the HREOCA, only a person who has had a complaint terminated by the president of HREOC may apply to this court alleging discrimination by a respondent to the complaint.

3. The 2002 complaint to HREOC was lodged by Mr Oorloff alone.

Mr Oorloff’s Complaint is Out of Time

1. Under s.46PO(2) of the HREOCA, an application to this court must be made within 28 days after the termination of a complaint — or within such further time as the court allows.

2. Mr Oorloff first lodged a complaint of disability discrimination against the respondents in October 1997. That complaint was dismissed by the then president of HREOC, Dr Tay, by letter dated 4 August 1998. Even then, the complaints were substantially out of date.

3. Mr Oorloff took no formal steps to have Dr Tay’s decision reviewed in a court of competent jurisdiction — notwithstanding that he was advised of his rights in that regard in the letter from HREOC to him dated 11 March 1999.

4. Mr Oorloff’s complaint dated 13 October 2002 raised the same issues as those that had formed the subject of the 1997 complaint. The two Notices of Termination dated 30 January 2003 give three reasons for bringing the 2002 complaint to an end:

   a)it was lodged more than twelve months after the alleged unlawful discrimination took place;

   b)it had already been adequately dealt with by the Bar Council of Victoria; and

   c)the subject matter of the complaint had already been adequately dealt with by HREOC.

5. The third of the above grounds makes it clear that HREOC was of the view that Mr Oorloff was seeking to reagitate a matter that had been disposed of some years earlier.

6. Mr Redd submitted that “ … there is no legislative portal by which HREOC cannot accept a complaint, or can declare one invalid on (grounds such as those set out in the Termination Notice). Rather, it can only issue a Termination Notice”.

7. Mr Redd also submitted as follows:

   A new Termination Notice regarding a complaint previously terminated by the president of HREOC cannot reenliven the jurisdiction of the Federal Court and the Federal Magistrates Court by granting a further 28 days in which a complainant can lodge an application to the court. If it were so, all applicants could circumvent the intended effect of section 46PO(2), no matter how much time had elapsed since the president of HREOC had terminated a complaint lodged by them by simply lodging another complaint in identical terms with HREOC. The president of HREOC would then be obliged to issue a fresh Termination Notice, despite having issued one previously on the same complaint. In these circumstances, it is submitted that only the first — and not subsequent — Termination Notices activates the 28 days within which a complaint may apply to the Federal Magistrates Court or the Federal Court.

8. There is some substance in Mr Redd’s submission in this regard. But the issue — in the present case — is a broader one. In all of Mr Oorloff’s documentation, he has not provided an adequate reason for the substantial delay that occurred between the dismissal of the 1997 complaint and the filing of 2002 complaint. Although Mr Oorloff’s application to this court is not technically out of time (as it purports to relate to the complaint terminated by the Notice of Termination dated 30 January 2003), and notwithstanding that, in any event, this court could (in its discretion) extend the time limit referred to in s.46PO(2), the substantial delays referred to in all the respondents’ submissions and Mr Oorloff’s obvious attempt to have “a second bite at the cherry” (to use a colloquialism) add considerable weight to the argument that Mr Oorloff’s claim for relief amounts to an abuse of the process of the Court.

No Reasonable Course of Action, Frivolous or Vexatious Claim and Abuse of Process

1. I have read Mr Oorloff’s application (filed 25 February 2003) and supporting affidavit (sworn 23 February 2003) carefully. I have also read all the other material provided to the court by Mr Oorloff (or by the Respondents). That material does not disclose any evidentiary ground for a claim of disability discrimination against any of the respondents. As Mr Redd submitted, the documents “ … only outline a series of allegations, more in the nature of misconduct … ”.

2. In my opinion, it is important to keep in mind the distinction between what may or may not have been the merits of Mr Oorloff’s claims against PTC and Jennings in the PTC case and the Jennings case, and the merits of Mr Oorloff’s claims against the respondents in the 1997 and 2003 complaints. It is simply not to the point that the then president of HREOC (Sir Ronald Wilson) may have suggested to Mr Oorloff in 1994 “ … that the Tramways Board erred in offering (Mr Oorloff) an inferior position to that held by him”. That comment (in whatever form it was made, and if it was made) clearly relates to the merits of Mr Oorloff’s substantive action against PTC — but has no relevance to Mr Oorloff’s complaint of disability discrimination against the respondents. Indeed, Mr Oorloff’s claim against PTC was a claim of race discrimination, and not disability discrimination.

3. The letter dated 11 May 1994 from Sir Ronald Wilson as president of HREOC to the Race Discrimination Commissioner refers to evidence submitted by Mr Oorloff in the substantive proceedings against PTC. It is that evidence which Sir Ronald considered (at that stage) was “cogent and/or believable and prima facie shows that the complainant was subject to racial harassment whilst in the employment of (PTC)….” Nowhere has Sir Ronald (or any other officer of HREOC) suggested that the evidence submitted by Mr Oorloff in relation to his complaint against his legal advisers is cogent and/or believable, or that it raises a prima facie case that Mr Oorloff was the subject of disability discrimination.

4. Unfortunately, Mr Oorloff seems to have chosen to ignore the letter from Sir Ronald Wilson to Mr Oorloff’s GP (Dr Hargreaves) dated 21 November 1995. The letter was written by Sir Ronald, as the then president of HREOC, about the PTC case. The letter contains the following:

   I am familiar with Mr Oorloff’s case, having presided over a conciliation meeting between the parties to the Inquiry earlier in the year. On that occasion, I tried very hard to secure an agreed outcome to the complaint because while I appreciated that it would help relieve Mr Oorloff’s obsession if he could tell his story in a formal hearing, the chances of a successful outcome were very slim. This was primarily because of the many years that have elapsed since the alleged discrimination and the very difficult task of clearly relating that discrimination to his race as distinct from performance related issues.

   I feel deeply for Mr Oorloff and hope very much that the treatment you can offer him may help him to close this sad chapter of his life and get the most he can from the years that lie before him. Unfortunately, I am unable to suggest any other avenues of redress that could be pursued with any prospect of success.

   In any event, the issues which you raise in your letter relate to the conduct of Mr Oorloff’s legal advisers in this Inquiry and these are matters which should properly be dealt with by the Law Institute of Victoria or the Victorian Bar Council.

   Regrettably, there is nothing further which the Human Rights and Equal Opportunity Commission can do to assist Mr Oorloff in relation to this Inquiry.

5. It follows from the above, that whatever Sir Ronald Wilson (as the then president of HREOC) might have thought about the merits of Mr Oorloff’s substantive claim against PTC, he did not consider that Mr Oorloff had a claim (under the HREOCA) against his legal advisers.

Where is the Disability Discrimination?

1. It is not possible to identify from the 2002 complaint to HREOC, or from the application and supporting material filed by Mr Oorloff in this Court, particulars of the manner in which the respondents’ alleged behaviour amounts to “disability discrimination”. HREOC treated Mr Oorloff’s complaint as an allegation of a possible breach of sections 5, 6 and 24 of the Disability Discrimination Act 1992. I concur with that approach. The provisions of those sections (so far as they are relevant) are as follows:

   Section 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.

   Section 6

   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 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.

   Section 24

   (1)It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's disability or a disability of any of that other person's associates:

   (a)by refusing to provide the other person with those          goods or services or to make those facilities available to the other person; or

   (b)in the terms or conditions on which the first-mentioned person provides the other person with those goods or    services or makes those facilities available to the other   person; or

   (c)in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.

   (2)    This section does not render it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services, or making facilities   available, would impose unjustifiable hardship on the person who provides the goods or services or makes the facilities available.

2. Given the provisions of the above sections, I am unable to identify how the Court could fairly conclude that any of the respondents had discriminated against Mr Oorloff on the ground of a disability even giving full weight to all the material produced by Mr Oorloff and ignoring the respondents’ version of events.

3. Mr Oorloff has failed to bring himself within the provisions of the Disability Discrimination Act (1992). That such is the case is not entirely surprising — given that, in my opinion, Mr Oorloff’s complaints were not really about “discrimination” at all. At their core, Mr Oorloff’s complaints amount to fairly straightforward allegations of unprofessional conduct. And those allegations have been considered by the appropriate professional body.

4. Although Mr Oorloff asserts that his substantive claims against PTC and the Jennings Group were likely to have succeeded if the matters had continued to trial, the fact of the matter is that the President of HREOC at the time (Sir Ronald Wilson) was of the view that Mr Oorloff’s “chances of a successful outcome (in the case against PTC) were very slim”[21] and Mr Oorloff himself conceded that the “Court Registrar” told him (in relation to the Jennings case) that “if you go through with the trial you will definitely lose out”. At the end of the day, however, Mr Oorloff’s prospects of success in the PTC case and the Jennings case are irrelevant to the question of whether or not his legal advisors in those proceedings discriminated against him.

   [21] See letter dated 21 November 1995 from HREOC to Dr Hargreaves.

5. I would also add the following:

   1.The Jennings case did not settle at the pre-hearing conference attended by Mr Appudurai. It follows that, even if pressure was applied by Mr Appudurai (and I make no finding that it was), that pressure did not have the outcome suggested by Mr Oorloff. Mr Oorloff settled the Jennings case well after the pre-hearing conference, and for more than the Jennings group had offered at that time.

   2.To the extent that Ms Armstrong may be or have remained a party to the proceedings before this Court, there is no evidence to suggest that her conduct amounted to discrimination against Mr Oorloff on the ground of a disability.

Conclusion

1. Bearing in mind the legal principles set out earlier in these Reasons, I conclude as follows:

   a)Mr Oorloff’s application against the respondents in this Court is doomed to fail. Put another way, it is inevitable it will fail.

   b)Mr Oorloff’s claims against the respondents — as set out in his application and supporting material — are clearly untenable, and his case is unarguable.

   c)Given that Mr Oorloff is self-represented, I have considered whether an arguable case based on his material could be made out. It cannot.

   d)To allow the proceedings to continue beyond this point would be manifestly unfair to the respondents. Further, it would bring the administration of justice into disrepute amongst right thinking people.[22]

   e)There is clearly a public interest in the finality of litigation, and it is oppressive for the respondents to have to concern themselves with two or more sets of proceedings dealing with, in essence, exactly the same matters.[23]

   [22] See Hunter v Chief Constable of the West Midands Police (1982) AC 529 at 536.

   [23] See Johnson v Gore Wood & Co (2002) 2 AC 1.

2. Overall, therefore, it appears to me that –

   a)no reasonable cause of action has been disclosed in relation to Mr Oorloff’s claim for relief; and

   b)because there is a public interest in litigation being finalised, because the respondents should not have to face more than one set of proceedings arising from the same factual scenario and raising the same allegations, and because of the long history of this matter (as described elsewhere in these Reasons), it appears to me that Mr Oorloff’s application filed 25 February 2003 can fairly be described as an abuse of the process of the court.

3. It follows from the above that Mr Oorloff’s application filed 25 February 2003 must be dismissed pursuant to the provisions of Rule 13.10 of the Federal Magistrates Court Rules 2001.

I, Barbara Mendleson, certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Walters FM

Deputy Associate: 

Date:  26 November 2004

SCHEDULE OF DOCUMENTS

Date  Description of document

04/11/1992	Letter from Commissioner for Equal Opportunity (Victoria) to Ministry of Transport
13/05/1993	Amended Complaint (Mr & Mrs Oorloff v Jennings Group Ltd)
28/07/1993	Mr Appudurai’s Brief backing sheet
21/09/1993	Release document (between Jennings Group Ltd and Mr & Mrs Oorloff) — signed on behalf of Jennings Group,but not signed by on behalf of Mr & Mrs Oorloff
28/10/1993	Letter from McPherson & Kelley to Mr & Mrs Oorloff
01/11/1993	Letter from Mr Oorloff to Dr Sadler, solicitor
04/11/1993	Letter from McPherson & Kelley to Mr & Mrs Oorloff
05/11/1993	Letter from Mr Oorloff to Dr Sadler, solicitor
11/05/1994	Letter from the President of HREOC to the Race Discrimination Commissioner
20/12/1994	Letter from the Secretary of the Ethics Committee of the Victorian Bar to Mr Appudurai
07/01/1995	Letter from Mr Oorloff to the Secretary of the Ethics Committee of the Victorian Bar
20/06/1995	Letter from Baker & Armstrong to Public Transport Corporation
09/10/1995	Handwritten note from Dr Hargreaves headed “To Whom it May Concern”
11/10/1995	Handwritten document executed at time of settlement of PTC case
13/10/1995	Letter from Mr & Mrs Oorloff to Dr Hargreaves
23/10/1995	Letter from Dr Hargreaves to the President of HREOC
21/11/1995	Letter from the President of HREOC to Dr Hargreaves
01/06/1996	Letter from Mr Oorloff to Mr Anderson
17/06/1996	Letter from Mr Anderson to the Chairman of the Victorian Bar
18/07/1996	Letter from Mr Murphy to the Victorian Bar
18/07/1996	Letter from Ms Lee to the Secretary of the Ethics Committee of the Victorian Bar
02/08/1996	Letter from the Secretary of the Ethics Committee of the Victorian Bar to Mr Anderson
04/08/1998	Letter from the President of HREOC to Mr & Mrs Oorloff
11/03/1999	Letter from HREOC to Mr & Mrs Oorloff
05/06/2002	Letter from Mr & Mrs Oorloff to Director of Legal Services, HREOC
13/10/2002	Complaint to HREOC
00/01/2003	Letter from HREOC to Baker & Armstrong
30/01/2003	Notice of termination #1
30/01/2003	Notice of termination #2
30/01/2003	Letter #1 from HREOC to Mr Oorloff
30/01/2003	Letter #2 from HREOC to Mr Oofloff
30/01/2003	Letter from HREOC to Mr Appudurai
22/02/2003	Information Sheet in relation to Mr Oorloff’s application to the Federal Magistrates Court of Australia
23/02/2003	Affidavit of Mr Oorloff
25/02/2003	Mr Oorloff’s application to Federal Magistrates Court of Australia
01/08/2003	Mr Murphy’s response
11/08/2003	Affidavit of Mr Murphy
13/08/2003	Ms Lee’s response
13/08/2003	Affidavit of L.V. O’Donnell
13/08/2003	Mr Appudurai’s Response
13/08/2003	Affidavit of Mr Appudurai
26/08/2003	Mr Oorloff’s written statement regarding Mr Appudurai’s response
01/09/2003	Further affidavit of Mr Murphy
11/09/2003	Mr Murphy’s written submission
11/09/2003	Mr Murphy’s chronology
12/09/2003	Ms Lee’s outline of submissions
12/09/2003	Mr Murphy’s supplementary written submission
12/09/2003	Outline of submissions of Mr Appudurai
12/09/2003	Supplementary affidavit of Mr Appudurai
12/09/2003	Letter from Mr Appudurai to Mr & Mrs Oorloff
26/10/2003	Statutory declaration of Mr Oorloff regarding Ms Lee’s response
26/10/2003	Statutory declaration of Mr Oorloff regarding Mr Murphy’s response
(undated)	Legal Ombudsman Complaint Form (complainant: Mr Oorloff)