Rainsford v Victoria

Case [2005] FCAFC 163

FEDERAL COURT OF AUSTRALIA

James Rainsford v State of Victoria & Anor [2005] FCAFC 163

HUMAN RIGHTS AND EQUAL OPPORTUNITY — appeal from Federal Magistrates Court — Federal Magistrate ordered separate questions for decision in the proceeding after another Judge had conducted a trial but resigned from the Court before giving judgment —mixed questions of fact and law — Federal Magistrate answered separate questions in the absence of any findings of fact or agreed statement of facts — answers hypothetical — error in seeking to answer questions without first making factual findings — nature of appropriate orders in the circumstances considered

DISCRIMINATION LEGISLATION — indirect discrimination on ground of disability alleged — appellant serving a sentence of incarceration — transport and accommodation as “services” in issue — requirement or condition in issue — nature of “services” discussed

COSTS — appropriate costs order in the circumstances

WORDS AND PHRASES — “services”

Disability Discrimination Act 1992 (Cth), ss 4, 6, 24
Federal Proceedings (Costs) Act 1981 (Cth), s 10
Federal Magistrates Act 1999 (Cth)
Federal Court of Australia Act 1976 (Cth), s 28
Corrections Act 1986 (Vic), ss 4, 8A, 8B, 9A, 17, 21, 23, 47

Corrections Regulations 1998 (Vic), reg 22

Federal Magistrates Court Rules 2001 (Cth), Pt 17, r 17, Div 8 Pt 6
Federal Court Rules 1979 (Cth), O 29 r 2
Supreme Court Rules (NSW) 1970 Pt 31
Supreme Court (General Civil Procedure) Rules 1996 (Vic), O 4, r 47

IW v City of Perth (1997) 191 CLR 1, referred to
Waters v Public Transport Corporation (1992) 173 CLR 349, referred to
Rohini Pty Ltd v Krizaic (1991) 30 FCR 300, referred to
Catholic Education Office v Clarke (2004) 131 FCR 121, referred to
Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334, discussed
Director of Fisheries (Northern Territory) v Arnhem Land Aboriginal Land Trust (2001) 109 FCR 488, discussed

Anderson v Wilson (2000) 97 FCR 453, referred to
Jacobson v Ross [1995] 1 VR 337, discussed
Rajski v Carson (1988) 15 NSWLR 84, referred to
Australian Ocean Line Pty Ltd v West Australian Newspapers Limited (1983) 47 ALR 497, referred to
Menhaden Pty Ltd v Citibank NA (1984) 1 FCR 542, referred to
Malpas v Malpas (1885) 11 VLR 670, referred to
Stewart v McKinley (1885) 11 VLR 802, referred to
Brownlie v Overend [1979] VR 283, referred to
Mutual Life and Citizens’ Assurance Co Ltd v Evatt (1970) 122 CLR 628, referred to

JAMES ERNEST RAINSFORD v STATE OF VICTORIA AND GROUP 4 CORRECTION SERVICES PTY LTD (ACN 050 069 255)

VID 1376 OF 2004
VID 1377 OF 2004

HILL, FINN AND KENNY JJ
17 AUGUST 2005
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 1376 OF 2004
VID 1377 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:

JAMES ERNEST RAINSFORD
APPELLANT

AND:

STATE OF VICTORIA
FIRST RESPONDENT

GROUP 4 CORRECTION SERVICES PTY LTD
(ACN 050 069 255)

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AGLC
James Rainsford v State of Victoria [2005] FCAFC 163
Case
[2005] FCAFC 163
Decision Date

CaseChat Overview and Summary

The case of Rainsford v Victoria involved the appellant, Mr Rainsford, appealing against the Federal Magistrates Court's decision to refuse leave to amend his description of certain requirements and conditions given in his written contentions. The appeal centred around the separate questions procedure under the Federal Magistrates Act 1999, which aims to facilitate the efficient and economical resolution of proceedings. The Federal Magistrate had declined to grant leave to amend the description, stating that the new case Mr Rainsford sought to argue was entirely different from the previous one, necessitating a re-opening of the matter and abandonment of previous arguments.

The legal issues before the court were whether the use of the separate questions procedure in the Federal Magistrates Court was appropriate in the circumstances, and if the Federal Magistrate had correctly exercised his discretion in refusing leave to amend the description of the requirements and conditions. The court had to consider the objectives of the Federal Magistrates Act, the rules governing the separate questions procedure, and the principles established in relevant case law, particularly Bass v Permanent Trustee Co Ltd.

The court held that the use of the separate questions procedure in this case had not been conducive to the efficient and economical resolution of the proceedings, as the questions posed were hypothetical and not based on facts judicially determined or agreed by the parties. This was in line with the principles established in Bass, where the High Court held that answering hypothetical questions that do not necessarily lead to the final determination of the parties' rights was not conducive to the efficient administration of justice. The court also found that the Federal Magistrate had not erred in exercising his discretion in refusing leave to amend the description of the requirements and conditions, as the new case Mr Rainsford sought to argue was entirely different from the previous one.

Accordingly, the consolidated appeal was allowed, the Federal Magistrates Court's judgment and orders were set aside, and the matter was remitted to the Federal Magistrates Court for further hearing and determination according to law. The costs of the said proceedings were reserved to a Federal Magistrate pending the further hearing and determination of the proceedings, and there was no order as to the costs of the appeal.

Orders

Orders of the court

1. The consolidated appeal be allowed.

2. (a) The judgment and orders given and made by Federal Magistrate Raphael on 19 October 2004; and

(b) the orders made by Federal Magistrate Raphael on 1 November 2004.

be set aside.

3. In lieu thereof:

(a) the two separate questions ordered for decision in the Federal Magistrates Court proceedings both be answered “Inappropriate to answer”; and

(b) the costs of the said proceedings be reserved to a Federal Magistrate pending the further hearing and determination of the proceedings.

4. The matter be remitted to the Federal Magistrates Court for further hearing and determination according to law.

5. There be no order as to the costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

HILL, FINN AND KENNY JJ
About a fortnight after the hearing on the separate questions, by notice of motion dated 9 September 2004, Mr Rainsford sought leave again to amend his description of the requirements and conditions given in his written contentions of 9 August 2004. In the case of the transport arrangements, he sought to add to the alleged requirement or condition the words “to be transported without access to conditions which would protect his back from injury”. Similarly, in the case of the Charlotte accommodation, he sought to add to the alleged requirement or condition the words “to be in the Charlotte Unit cell without access to conditions which would protect his back from injury”. On this occasion, his Honour refused to grant the leave sought, stating, amongst other things, that the case that Mr Rainsford now sought to argue was “an entirely different case to that which came before me”. His Honour added, “I have little doubt that the whole matter would have to be re-opened, the previous arguments abandoned and the new case heard”: see Rainsford v State of Victoria and Another [2004] FMCA 620 at [6].the decision of the federal magistrate At [6] of his reasons for judgment ([2004] FMCA 707), the Federal Magistrate set out his approach to deciding the separate questions, saying:The matter … proceeded on the usual basis upon which separate questions are considered, that is that the evidence of the applicant was taken at its highest. It was not necessary for me to hear any further evidence but I was taken to relevant evidence by each of the parties. Under the heading “The background facts”, in relation to Mr Rainsford’s complaint about the transport arrangements, his Honour said, at [8]:So far as I understand the evidence there were no specific medical recommendations relating to the provision of exercise facilities for Mr Rainsford nor to the provision of special facilities for him upon being transported from place to place. The evidence does, however, appear to corroborate Mr Rainsford’s complaints that the transport arrangements involved him being in uncomfortable vehicles for long journeys without much in the way of support so that his back was liable to jarring and he was liable to slipping around. Mr Rainsford made a number of complaints about the transport arrangements which he claimed resulted in him suffering severe pain, aching and limitation of movement following any lengthy journey. At [9], the Federal Magistrate accepted that Mr Rainsford’s imprisonment in the Charlotte Management Unit lasted for nine days, but stated that there was no medical evidence that Mr Rainsford suffered any exacerbation of his back condition “in relation to this nine day period”. His Honour answered the two separate questions in the negative and against Mr Rainsford. After noting, at [18], that Mr Rainsford had restricted his claim to “the provision of services in the management and control of the prison” and, at [19], that the decision of the High Court of Australia in IW v City of Perth (1997) 191 CLR 1 (“IW v City of Perth”) did “not provide much assistance to the lower court decision maker dealing with the matter on the cusp of the definition”, his Honour said, also at [19]:If the provision of something of benefit to the recipient is an indicator of the existence of a service then it is obviously arguable that the provision of cell accommodation and motor transport come within the definition. But it does not seem to me that the argument is an attractive one in this case.

Ratio Decidendi

Legal Principle Established

Established by: HILL, FINN AND KENNY JJ

In further submissions, in relation to which leave was sought, both respondents opposed the appellant’s proposal that the Court should invite the parties to agree on the facts. The second respondent observed, “the scope of the facts relied on by counsel for the appellant as relevant to the issues raised by the separate question has changed over time and it is unlikely that agreement on more detailed facts could now be achieved”. It added:The determination of new separate questions by the Full Court on the basis of facts agreed for the first time on appeal would be inappropriate, given the appellate nature of the Full Court’s jurisdiction in this matter. It would involve not an appeal from the Federal Magistrates Court, but a trial of a separate question by the Full Federal Court. consideration of the procedure adopted by the federal magistrate The main object of the Federal Magistrates Act 1999 (Cth) (“the FMA”) is to create the Federal Magistrates Court (s 3(1)) but its other objects include “to enable the Federal Magistrates Court to operate as informally as possible” and “to use streamlined procedures” (s 3(2)). Division 8 of Pt 6 of the FMA confers power on the Federal Magistrates to make rules of Court (s 81). The object of the FMC Rules is “to assist the just, efficient and economical resolution of proceedings” (r 1.03(1)) as well as help the Court, amongst other things, to operate informally and to use streamlined procedure (r 1.03(2)). Part 17, which provides for the separate decision on a question in a proceeding, creates a mechanism that may, in an appropriate case, facilitate the object of these Rules The procedure in Pt 17 of the FMC Rules has counterparts in O 29 of the Federal Court Rules 1979 (Cth), Pt 31 of the Supreme Court Rules 1970 (NSW), and r 47.04 of Ch I of the Supreme Court (General Civil Procedure) Rules 1996 (Vic). There is a wealth of authority concerning the use of separate questions procedure under these counterpart provisions. Whilst the use of the separate questions procedure can, in some circumstances, avoid delay and lessen the expense in resolving a proceeding, the cases show that there can also be significant difficulties in adopting the procedure, “especially where no findings of fact have been made and the questions are capable of different interpretations”: see Anderson v Wilson (2000) 97 FCR 453 at 461 [28] per Black CJ and Sackville J. In order for a court exercising federal jurisdiction to utilise the separate questions procedure, either the parties must agree upon the relevant facts or the court must determine the facts before seeking to decide the question. This much is clear from the decision of the High Court of Australia in Bass v Permanent Trustee Co Ltd (1991) 198 CLR 334 (“Bass”). In Bass, the High Court was concerned with a number of separate questions, which had been formulated by a judge of this Court and referred to a Full Court of this Court. The Full Court answered the questions, even though there were no findings of fact and the parties had not agreed upon the facts. On appeal, the majority (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ) held that, save in one respect, it was inappropriate to answer the questions because, in the absence of facts judicially determined or agreed by the parties, the questions were hypothetical. At 355 [45], the majority observed that “[t]he purpose of a judicial determination … is the notion that such a determination includes a conclusive or final decision based on a concrete and established or agreed situation which aims to quell a controversy”. In Bass, the majority said, at 357 [49]:As the answers given by the Full Court and the declaration it made were not based on facts, found or agreed, they were purely hypothetical. At best, the answers do no more than declare that the law dictates a particular result when certain facts in the material or pleadings are established. What those facts are is not stated, nor can they be identified with any precision. They may be all or some only of the facts. What facts are determinative of the legal issue involved in the question asked is left open. Such a result cannot assist the efficient administration of justice. It does not finally resolve the dispute or quell the controversy. Nor does it constitute a step that will in the course of the proceedings necessarily dictate the result of those proceedings. Since the relevant facts are not identified and the existence of some of them is apparently in dispute, the answers given by the Full Court may be of no use at all to the parties and may even mislead them as to their rights. Courts have traditionally declined to state — let alone answer — preliminary questions when the questions will neither determine the rights of the parties nor necessarily lead to the final determination of their rights. The efficient administration of the business of courts is incompatible with answering hypothetical questions which frequently require considerable time and cause considerable expense to the parties, expense which may eventually be seen to be unnecessarily incurred. For the reasons that follow, the present case exemplifies the force of the last sentence in the above passage. As the respondents’ submissions make clear, the second respondent proposed, and the first respondent supported, the use of the separate questions procedure in an attempt to limit the expense involved in resolving the proceeding. As it turns out, however, the use of the procedure in this case has not been conducive to the efficient and economical resolution of the proceedings.