Rana v Housing SA
[2008] FMCA 1720
•24 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RANA v HOUSING SA & ORS | [2008] FMCA 1720 |
| HUMAN RIGHTS – Disability Discrimination Act – whether there is a genuine Federal claim – whether Court’s accrued jurisdiction is enlivened – proceeding dismissed with costs. |
| Crown Proceedings Act (SA), ss.5 and 6 Disability Discrimination Act 1992 (Cth), ss.5 and 6 Federal Magistrates Court Rules 2001 (Cth), r.41.02A(2) Judiciary Act 1903 (Cth), s.79 Mental Health Act 1993 (SA), s.12 |
| Burgundy Royale Investments Pty Ltd v Westpac (1987) 8 FCR 212 “Federal Jurisdiction and the Jurisdiction of the Federal Court of Australia in 2002” by Allsop J (2002) 23 Aust Bar Review 29 |
| Applicant: | RANJIT RANA |
| First Respondent: | HOUSING SA (FORMERLY CALLED THE HOUSING TRUST OF SOUTH AUSTRALIA) |
| Second Respondent: | SOUTH AUSTRALIA POLICE |
| Third Respondent: | ROYAL ADELAIDE HOPSITAL – CENTRAL NORTHERN HEALTH SERVICE |
| File Number: | ADG 2 of 2008 |
| Judgment of: | Simpson FM |
| Hearing date: | 15 February 2008 |
| Date of Last Submission: | 15 February 2008 |
| Delivered at: | Adelaide |
| Delivered on: | 24 December 2008 |
REPRESENTATION
| The Applicant: | In Person |
| Counsel for the Respondents: | Mr Keane |
| Solicitors for the Respondents: | Crown Solicitor's Office |
ORDERS
The proceedings be dismissed.
The applicant pay the respondent’s costs of the proceedings.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADG 2 of 2008
| RANJIT RANA |
Applicant
And
| HOUSING SA (FORMERLY CALLED THE HOUSING TRUST OF SOUTH AUSTRALIA) |
First Respondent
| SOUTH AUSTRALIA POLICE |
Second Respondent
| ROYAL ADELAIDE HOSPITAL – CENTRAL NORTHERN HEALTH SERVICVE |
Third Respondent
REASONS FOR JUDGMENT
The proceedings
On 3 January 2008 Mr Ranjit Rana commenced this proceeding by filing an application naming Housing SA (then called the Housing Trust of South Australia) as first respondent, South Australia Police (“SA Police”) as second respondent and Royal Adelaide Hospital - Central Northern Health Service (“RAH”) as third respondent. The applicant stated in his application that he relied on ss.5 and 6 of the Disability Discrimination Act 1992 (Cth) (“DD Act”), ss.5 and 6 of the Crown Proceedings Act (SA) and s.79 of the Judiciary Act 1903 (Cth) to give the Court jurisdiction to deal with the proceeding.
The applicant sought final orders as follows:
1. The applicant be compensated for (sic) $250,000.
2.All the respondents be restrained from calling the applicant psychotic unless and otherwise proven by medical evidence.
Unfortunately, the applicant failed to comply with the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”) and thereby made this proceeding unnecessarily complex. Chapter 5 of the Rules as it was on 3 January 2008 required that proceedings alleging unlawful discrimination be commenced using the approved form. The approved form was an Application – General Federal Law including a form 167 (see r.41.02A of the Rules). The applicant filed the approved form but, contrary to r.41.02A(2) of the Rules, also filed a Statement of Claim and an affidavit (“the Applicant’s First Affidavit”). The Rules required that the applicant provide brief grounds in the application. He failed to do so and instead stated in the application: “SEE THE STATEMENT OF CLAIM AND AFFIDAVIT”.
As the applicant is self represented I have thought it appropriate to consider all of the material filed by the applicant to determine the respondent’s application that the proceedings be struck out on the basis that there is no genuine Federal aspect to the proceeding..
The Statement of Claim as originally filed included actions for negligence against each of the respondents which were said by the applicant to be properly brought “… per accrued and associated jurisdiction of the federal court of australia act (sic) and rules”. There is no plea in the Statement of Claim concerning any cause of action pursuant to the DD Act against any of the respondents.
The Applicant’s First Affidavit comprised two bound books: Book 1 Contained the body of the affidavit together with Exhibit “A” to the affidavit. Book 2 contained Exhibit “B” to the affidavit. Exhibit “A” comprised various documents apparently obtained by the applicant pursuant to a subpoena addressed to SA Police. Exhibit “B” comprised an affidavit of the applicant sworn 15 November 2007 and filed in Action Number 7912 of 2007 in the Magistrates Court of South Australia in which the applicant was plaintiff and Dr T Tafari was, at least initially, defendant. I am informed that the State of South Australia was later substituted as defendant in place of Dr Tafari. The affidavit annexed to the Applicant’s First Affidavit itself annexed numerous exhibits.
Neither the Statement of Claim nor the Applicant’s First Affidavit filed in this action achieved the object of briefly stating the grounds of the application as was required by the Rules. This was particularly true of what purported to be the Federal aspect of the proceeding. Further, it did not achieve the object of putting the respondents on reasonable notice of the cases that they each had to meet. It is by no means clear what fact contained in the material are relied upon to comprise the cause (or causes) of action against each of the respondents. The respondents’ predicament became even more difficult on 17 January 2008 when, without the Court’s leave, the applicant filed an Amended Statement of Claim. This new pleading alleged causes of action:
·against Housing SA for negligence, false imprisonment and breach of lease; and
·against each of SA Police and Royal Adelaide Hospital for negligence and false imprisonment.
On 25 January 2008, again without leave of the Court, the applicant filed a further affidavit (“the Applicant’s Second Affidavit”) sworn on 23 January 2008. This affidavit purported to provide further details of the applicant’s complaints against each of the respondents.
On 13 February 2008 the matter came before the Court for the first time. Counsel for the respondents indicated that the respondents wished to make application to strike out the applicant’s claim. The matter was listed for argument on 15 February 2008.
At the hearing of the interim application for strike out on 15 February 2008 the applicant made an application that I disqualify myself. After hearing the applicant’s submissions I declined to do so and gave reasons. There has been no appeal against that decision. I then heard the parties’ submissions in relation to the respondents’ applications to strike out.
Submissions on application to strike out claim
The respondents submit that there is no genuine Federal aspect to the applicant’s claim and therefore matters that would generally be sought to be determined pursuant to the Court’s powers to deal with accrued and associated matters has not been enlivened. The applicant submits that if there is any deficiency in his claim he should be given the opportunity to re-plead his cause of action against the three respondents in an attempt to address the matters raised by Counsel for the respondents.
The following material has been considered by me:
a)Application – General Federal Law with Form 167 filed 3 January 2008;
b)Statement of Claim filed 3 January 2008;
c)Affidavit of applicant filed 3 January 2008;
d)Amended Statement of Claim filed 17 January 2008;
e)Affidavit of applicant filed 25 January 2008; and
f)Applicant’s Outline of Submissions filed 14 February 2008.
Background
It is helpful to have some understanding of the background to this litigation. This summary is based substantially on the applicant’s version of events as gleaned from the documents filed by him in this action.
The applicant acknowledges that he has a long standing psychiatric disability. He suffers from paranoid schizophrenia.
The applicant has been a tenant of Housing SA since 1992. From 1 June 2006 he was a tenant of their property at Unit 1/25 Hackney Road, Hackney. Soon after moving into the Hackney property he became involved in conflict with his neighbours.
The applicant says that thereafter Housing SA took steps to have him evicted. I have previously referred to this conflict with neighbours and attempts by Housing SA to have the applicant evicted in earlier proceedings[1].
[1] Rana v Libraries Board of South Australia & Ors [2008] FMCA 911.
The applicant complains that on 6 June 2007 an employee of Housing SA contacted SA Police or the Royal Adelaide Hospital (“RAH”) or both (it is not clear from the materials) and stated that the applicant’s psychiatric illness made him a danger to himself or others. The applicant says that as a result police officers took him into custody and placed him in the care of representatives of the RAH for psychiatric examination and care. He was an inpatient at the RAH from 6 June 2007 to 13 June 2007 and was detained by the hospital pursuant to a detention order under s.12 of the Mental Health Act 1993 (SA). This was obtained on the recommendation of a psychiatrist, Dr T Tafari, who was employed by the RAH. The detention order was revoked on the recommendation of Dr Marcia Fogerty, a psychiatrist who was also employed by the RAH.
On 21 June 2007 the applicant filed a complaint with the Human Rights and Equal Opportunity Commission (“HREOC”) alleging that Housing SA was guilty of unlawful discrimination on the basis of disability and race. The applicant later amended his complaint to HREOC to also allege disability and racial discrimination by SA Police and the RAH. On 19 December 2007 a delegate of the President of HREOC decided to terminate the complaints of disability discrimination as lacking in substance. At the same time the complaints of racial discrimination were dismissed on the ground that there was no reasonable prospect of the matter being settled through conciliation. The applicant has since abandoned his complaints of racial discrimination against each respondent.
Is there a genuine Federal claim
The question whether there is a genuine Federal claim in the application is not to be confused with the question whether the applicant has a weak or even hopeless case. In deciding whether the matter has a genuine Federal aspect it is proper to consider whether the discrimination claims were made for the purpose of “fabricating” jurisdiction.[2] The strength or weakness of the Federal aspect to the applicant’s claim is a matter to take into account in deciding whether this aspect of the proceeding has been brought bona fides for proper purpose[3] and not merely to fabricate jurisdiction. If it is clear that there is no Federal jurisdiction properly invoked then there can be no accrued jurisdiction.[4]
[2] Burgundy Royale Investments Pty Ltd v Westpac (1987) 8 FCR 212 at 219.
[3] See article “Federal Jurisdiction and the Jurisdiction of the Federal Court of Australia in 2002” by Allsop J (2002) 23 Aust Bar Review 29 at p.45.
[4] Carlton & United Breweries Ltd v Castlemaine Tooheys Ltd (1986) 161 CLR 543 at 553 cited with approval in Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 at p.598 per French J as he then was.
Neither the Statement of Claim nor the Amended Statement of Claim properly plead a discrimination claim against any of the respondents. In the portions of the claim pleaded against Housing SA and the RAH the only reference to discrimination is a referral to the Applicant’s First Affidavit which he says is an “affidavit of the disability discrimination component”. The portion of the claim pleaded against SA Police makes no reference at all to a discrimination claim.
The Applicant’s First Affidavit attempts to explain the events that gave rise to his claims against each of the respondents for disability discrimination. It fails to do so. Doing the best that I can using all the material filed but particularly the Applicant’s First Affidavit in conjunction with the reasons of the Delegate of the President of 19 December 2007, I concluded that the applicant’s complaint raises two matters of supposed disability discrimination by Housing SA. These are that Housing SA:
a)Sought to have the applicant evicted; and
b)Sought to have the applicant detained under the Mental Health Act.
The applicant’s complaints of supposed disability discrimination against each of the other respondents, SA Police and the RAH, are that they each sought to have him detained under the Mental Health Act.
In relation to the two aspects of the alleged disability discrimination by Housing SA referred to above, neither stands up to close scrutiny. As previously mention, the applicant has already brought unsuccessful proceedings against Housing SA for alleged breach of contract for bringing eviction proceedings against him in the Residential Tenancies Tribunal. The applicant should not be permitted to re-litigate those events in the context of the DD Act[5]. In addition there is no allegation in the Amended Statement of Claim or the Applicant’s First Affidavit that the applicant was treated less favourably than a person without a disability. The allegations that the applicant makes in relation to attempts to have him evicted do not give rise to any question of unlawful discrimination under the DD Act.
[5] See Rana v University of South Australia [2008] FCA 1903 para. 43 and the cases referred to therein.
In relation to the remaining area of supposed disability discrimination against each of the respondents, namely, their alleged actions in having the applicant detained under the Mental Health Act, for reasons that follow, it is my opinion that the applicant’s case is without any merit. Other than a reference to ss.5 and 6 the applicant has not identified which section or sections of the DD Act are relied upon for this aspect of the matter. The only possible section is s.24 which provides:
(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.
The applicant’s complaint that he should not have been referred to, certified or detained by the RAH under s.12 of the Mental Health Act could not on a plain reading of this section be unlawful discriminatory conduct. Further, there is again no allegation by the applicant that he was treated less favourably than a person without the disability. No proper claim for disability discrimination can be identified from the material nor on the facts as I understand them could such a claim arise.
The documents filed by the applicant suggest that his main claims are for false imprisonment and negligence. The disability discrimination claims have, in my opinion, been included in an attempt by the applicant to find a Federal cause of action so that proceedings can be brought in this Court. I consider that there is no genuine Federal aspect to the proceedings and that the Federal aspect has been fabricated and not included for a proper purpose. It follows that the accrued jurisdiction of the Court has not been enlivened.
The proceeding should be dismissed and the applicant ordered to pay the respondent’s costs. I make the orders to be found at the beginning of these reasons.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Simpson FM
Associate: J. Semler
Date: 24 December 2008
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