Rana v Hyatt Regency Hotel Ltd
[2007] SASC 7
•19 January 2007
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
RANA v HYATT REGENCY HOTEL LTD
[2007] SASC 7
Judgment of The Honourable Justice David
19 January 2007
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal against the decision of a magistrate to summarily dismiss the appellant’s claims pursuant to s 52 of the Trade Practices Act 1974 (Cth) and the Misrepresentation Act 1972 (SA) – the claims arose from the alleged fact that the appellant was invited to attend the respondent’s hotel, but was subsequently refused entry – magistrate found that the pleadings did not disclose a proper cause of action and dismissed the claims, the appellant having refused to amend the pleadings – whether there was actual or apparent bias on the part of the magistrate – whether the magistrate erred in summarily dismissing the appellant’s claim – held, appeal allowed – a fair-minded observer would not have suspected that the magistrate pre-judged the claim – appellant should have raised bias concerns before the magistrate – s 7 of the Misrepresentation Act 1972 only provides remedies for misrepresentation where a contract was actually formed – as the appellant did not plead the existence of a contract, this claim fails – s 51A of the Trade Practices Act 1974 shifts the onus in s 52 claims involving “representations with respect to a future matter” such that a representation is deemed misleading unless the corporation adduces evidence that it had reasonable grounds for making the representation – given that the appellant was self-represented, the magistrate should have applied s 51A notwithstanding that the appellant did not refer to the provision – applying s 51A, the appellant’s claim pursuant to s 52 had a possibility of success, and should not have been summarily dismissed.
Trade Practices Act 1974 (Cth) s 51A, s 52; Misrepresentation Act 1972 (SA) s 4, s 6, s 7, s 8, referred to.
Battiste v Mulvaney (Unreported S6419, Supreme Court of South Australia, Doyle CJ, 7 November 1997); Bill Acceptance Corporation v GWA (1983) 50 ALR 242; Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594; Corporate Affairs Commission v Solomon (Unreported, New South Wales Court of Appeal, Mahoney AP, 1 November 1989); Cummins v Lewis (1993) 113 ALR 285; Davis v The Commonwealth (1986) 61 ALJR 32; Empire Shipping v Shin Kobe Maru (1991) 32 FCR 78; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; Global Sportsman v Mirror Newspapers (1984) 55 ALR 25; Johnson Tiles v Esso Australia (2000) 104 FCR 564; Morton v Vouris (1996) 21 ACSR 497; Mr Bankrupt Secondhand Goods v Richards (2000) 209 LSJS 278; Rajski v Scitec (Unreported, New South Wales Court of Appeal, 16 June 1986); Ting v Blanche (1993) 118 ALR 543; Webb v The Queen (1994) 181 CLR 41; Wentworth v Rogers (No 5) (1986) 6 NSWLR 534; Western Australia v Bond Corp Holdings Ltd (1990) 99 ALR 125, applied.
RANA v HYATT REGENCY HOTEL LTD
[2007] SASC 7Magistrates Appeal
David J.
Background
This is an appeal against the decision of a magistrate to dismiss a claim by the appellant on the basis that “the pleadings do not disclose a cause of action known to law, at least as based on the facts as asserted”.
Question of Leave to Appeal
Leave was not sought in this case, and both parties put to me in argument that leave was not required. Subsequent to hearing the appeal, the respondent provided supplementary submissions for consideration. These submissions reversed the respondent’s position on the appellant’s need to seek leave to appeal. I have determined not to consider the submissions because of the potential prejudice to the appellant at this late stage in the proceedings. Consistent with the original position of the parties, I deal with the appeal upon its merits.
Background Facts
The appellant claims that at 7.57 am on 21 April 2006 the respondent’s security manager left the him a message inviting him to attend a function organised by the dating service RSVP. The function was to be held later that evening at a venue operated by the respondent, the Waves nightclub.
The appellant claims that he attended the nightclub at the scheduled time, but was stopped at the entrance by a security guard. He claims that the security guard told him that he was a “trouble maker” and that he “had been banned for life for attempting to murder a taxi driver … and trying to rape white girls”. The appellant left the venue.
The appellant claims that the General Manager of the respondent sent him an email on 3 May 2006 confirming that he was not welcome at the respondent’s hotel.[1]
[1] Exhibit to Affidavit of Ranjit Rana, 17 July 2006.
The appellant claims that he regularly attended the respondent’s nightclub prior to the events of 21 April 2006. He refers to an incident at the respondent’s hotel on 31 March 2006 which he says relates to the present dispute.[2] He makes a series of allegations against people including a taxi driver, two security officers apparently employed by the respondent, an ex-girlfriend and a former neighbour. I will not repeat these allegations. I do not believe that these matters advance the appellant’s claims, and I disregard them for this appeal.
[2] Affidavit of Ranjit Rana, 17 July 2006.
The appellant alleges that the security officer made other allegations to the South Australia Police and to the agency RSVP. Again, I do not believe that this fact supports either of the appellant’s claims, and I disregard it.
The Applications
The appellant, who is self-represented, claimed the sum of $16,000 in damages against the respondent for alleged misleading and deceptive conduct in breach of s 52 of the Trade Practices Act 1974 (Cth) (“the Trade Practices Act”) and misrepresentation in breach of the Misrepresentation Act 1972 (SA) (“the Misrepresentation Act”). That claim is detailed in the appellant’s Particulars of Claim filed in the Magistrates Court of South Australia on 26 April 2006. I set out the pertinent parts:
1.The defendant (Hyatt Regency Hotel) is and at all material times is/was a corporation within the meaning of the Trades Practices Act 1974 (Cth) (“the Act”), being incorporated under Corporations Law.
2.On 21st April 2006, the defendant, in trade or commerce, engaged in the following conduct (“the defendant’s conduct”) in contravention of s 52 of the Act:
(i) The defendant’s security manager Phillip on or about 7:57 AM had left a message as a delegate of the Hotel Manager confirming that the plaintiff could attend the organised function for dating in the Waves night club of the defendant.
(ii) Phillip also indicated that he could find no misconduct of the plaintiff inside or outside the precinct of the hotel located at North Terrace, Adelaide before 21/4/2006.
(iii) Phillip also confirmed that the Restaurant Manager of the Waves had approved the presence of the plaintiff for the function.
(iv) The defendant provides hospitality and entertainment services to public and organizer like RSVP in terms of trade and commerce.
3.The defendant’s conduct was misleading and deceptive in that (vicariously) as of point 2, the plaintiff was okayed to attend the function on 21/4/206 [sic] at about 7:30 PM. However, when the plaintiff was at the gates of Waves, another security officer approached the plaintiff and told him that he was a trouble maker and has been banned for life for attempting to murder a taxi driver … and trying to rape white girls.
Paragraphs 4 and 5 of the Particulars of Claim concern the alleged statements made to RSVP and the South Australia Police. The respondent submitted, and I agree, that these allegations do not support the appellant’s claim. They will be disregarded for the purposes of this appeal. The claim continues:
6.The defendant’s conduct induced the plaintiff to come to the RSVP function on 21st April 2006 after getting approval from Phillip in order to find a lady for dating, dining and dancing at 7:30 PM at the gates of the Waves night club located in the ground floor of the Hyatt Regency Hotel.
7.The plaintiff has suffered loss or damage by the defendant’s conduct, that he suffered humiliation, embarrassment and loss of face with all the members of the Adelaide based RSVP members. This was based on the banning by the security officer at 7:45 PM outside the Waves night club captured by the security camera footage. The plaintiff has forgone further contacts with RSVP and seeking medical treatment arising low self esteem after this incident. The plaintiff claims A$16,000 in its entire totality for loss and damages for being banned on false grounds.
8.The plaintiff seeks injunction for restraining the security officer in question never ever to intimidate or harass or interfere with the private life of the plaintiff per s 87 of the Act.
9.Damages
10.Interest
11.Costs
The misrepresentation claim is as follows:
Representation
1.On 21/4/2006, Phillip a security manager as a delegate of the Hotel represented to the plaintiff that he was approved by the Hotel and the Waves night club to attend the RSVP function starting at &:30 PM. [sic]
2.The precise terms of the representation was that the Hotel and Waves could find no problems with the plaintiff and there was no reason why he could not attend the RSVP public function.
The falsity of the representation
3.The representation was false in that when the plaintiff attended the function on 21/4/2006 at 7:45 PM another security officer of the defendant as a delegate of the Hotel Manager banned the plaintiff who had relied on the morning phone message of Phillip.
4.The true situation which the plaintiff intends to establish at trail [sic] is that the plaintiff never had problems with the hotel, its staff, customers, Waves, RSVP and/or its members. The hotel security officer who banned him for life targeted the plaintiff because of his race and ethnicity.
5.The true situation was that on a previous occasion of as RSVP function, a bizarre taxi driver false claimed that the plaintiff tried to rob him to the same security that later went to ban him [sic]. Further, in that occasion while the plaintiff was having a nice time another security officer took wallet of the plaintiff for checking if the plaintiff was a drug dealer and never returned it. The defendant represented that the security officer in question never did this and they have entire night’s security video to prove it.
6.The plaintiff seeks loss and damages as of points 7 to 11 in the cause of action for breaches of s 52 of the Trade Practices Act.
On 16 May 2006, the respondent applied pursuant to r 8 of the Magistrate Court (Civil) Rules 1992 to have the action dismissed or, in the alternative, to have the appellant’s pleadings struck out. The respondent’s supporting affidavit, dated 16 May 2006, contended that the appellant’s action “discloses no cause of action”, “does not comply with the Rules as to pleadings”, “fails to properly identify the basis for and method of calculation of the monetary sum claimed”, “is scandalous, frivolous, oppressive and vexatious”, and “is otherwise an abuse of process of the Court”.
On 19 May 2006, the appellant responded with a counter-application that sought orders including the dismissal of the respondent’s application. In the event, the counter-application was overtaken by the magistrate’s ultimate decision to grant the respondent’s application and dismiss the appellant’s claim. The parties put to me that the counter-application is not before me, and I will not consider it further.
On 1 August 2006, the magistrate heard from both parties in relation to these applications. The magistrate told the appellant that there were serious defects in his pleadings. On more than one occasion the magistrate invited the appellant to amend his pleadings to address these concerns. He went to the point of offering the appellant a blank template on which to base his pleadings. He also encouraged the appellant to seek legal advice. The appellant refused these invitations and invited the magistrate to dismiss his claim. I make it clear that this invitation by the appellant is not necessarily fatal to his appeal, as he was self‑represented. I will consider the appeal upon its merits.
The magistrate granted the respondent’s application and dismissed the appellant’s claim and counter-application. He awarded costs to the respondent. As they are brief, I set out the magistrate’s reasons in full:
The plaintiff has invited me to dismiss his claim, even though I have given the opportunity to present him with a blank template upon which he could re-write the pleadings in this matter so that the factual matters are correctly pleaded and the causes of action identified and so that a sensible decision can be made by me as to whether or not I have jurisdiction. For example the submission of defence counsel at paragraph 12 refers to a matter that is potentially not within the court’s jurisdiction. That is by reference to Mr Rana’s pleading at the second paragraph 4 on page 2 of his particulars of claim:
“The hotel security officer who officer who banned him for life targeted the plaintiff because of his race and ethnicity.”
Now that, by any other name, is an allegation of racial discrimination and I am mindful of the fact that this court has no jurisdiction to entertain that aspect. That is a matter under Equal Opportunities legislation, whether that be Commonwealth or State.
I accept the cogency of the defendant’s arguments. The plaintiff declines to take the opportunity to revisit his pleadings and to seek legal advice, despite my strenuous urgings and I grant the defendant’s application and I dismiss this action on the basis that the pleadings do no disclose a cause of action known to law, at least as based on the facts as asserted. I therefore grant the defendant’s application in those terms. In respect of the plaintiff’s counter-application, that is dismissed.
I award costs in favour of the defendant on the usual scale as being a successful defence to a claim for the amount sought, i.e. $16,000 on the usual party/party scale under the Third Schedule to the Magistrates Court Rules.
The appellant submits the magistrate erred in so ruling. The appellant is self‑represented, and his grounds of appeal are confused. From his written and oral submissions, I will attempt to summarise them as best I can:
1.the magistrate was biased against the appellant’s cause or gave the appearance of being so; and
2.the magistrate erred in summarily dismissing the appellant’s claim and in finding that the appellant’s pleadings did not make out satisfactory causes of action pursuant to the Misrepresentation Act and the Trade Practices Act.
Apprehended or Actual Bias
I first address the appellant’s claim that the magistrate was biased against his cause or gave the appearance of being so. The law relating to bias is summarised by Mason CJ and McHugh J in Webb v the Queen:[3]
When it is alleged that a judge has been or might be actuated by bias, this Court has held that the proper test is whether fair-minded people might reasonably apprehend or suspect that the judge has prejudged or might prejudge the case.
[3] (1994) 181 CLR 41, 47 (Mason CJ, McHugh J)
The appellant says that the magistrate’s manner suggested that he had “already made up his mind” and was an “advocate for the defendant”.[4] The facts before me do not support this. To the contrary, the magistrate made considerable allowances for the appellant, and it was as a last resort that he granted the respondent’s application.
[4] Notice of Appeal, 15 August 2006.
The appellant claims that the magistrate did not read the whole court file. I note the affidavit dated 25 October 2006 of Ms Demaria, counsel at first instance for the respondent. She attests to the fact that the magistrate stated at the commencement of the hearing on 1 August 2006 that “he had read all of the court file”. The appellant’s allegation can be no more than speculation against which I weigh the magistrate’s statement that he did read the file. I find that this allegation is without substance.
The appellant claims that the magistrate ruled against him in past proceedings involving a restraining order, and that he should have disqualified himself.[5] If the appellant had concerns about the magistrate’s involvement in past proceedings, then he should have raised these before the magistrate. It is unsatisfactory for the appellant to keep these concerns in reserve and only raise them after the magistrate decided against him.[6] Where concerns are not raised before the judge concerned, an appeal judge can expect “a clear statement of why the allegation was not made”.[7] No explanation was given, and accordingly this ground of appeal fails.
[5] Notice of Appeal, dated 15 August 2006.
[6] Rajski v Scitec (Unreported, New South Wales Court of Appeal, 16 June 1986).
[7] Ibid 16 (Kirby P).
I conclude that a fair-minded observer would not reasonably suspect bias.
Summary Dismissal of the Appellant’s Claim
I turn now to the more substantive ground of appeal, that the magistrate erred in summarily dismissing the appellant’s claim on the basis that it did not disclose a satisfactory cause of action.
The respondent’s application to have the appellant’s Particulars of Claim struck out was brought pursuant to r 8 of the Magistrates Court (Civil) Rules 1992 which states:
8. (1) Where a party wishes to obtain –
(a)summary judgment in, or the disposal of the whole or part of, an action;
or
(b)immediate relief,
he or she may do so on application accompanied by an affidavit specifying –
(c)why the other party does not have a good action or defence on the merits on any possible view of the facts or law;
or
(d)why such relief should be granted.
(2) The Court may -
(a)enter judgment accordingly;
(b)grant the whole or part of the relief sought, and order that the action continue in relation to the part not disposed of;
(c)make an order for an early trial;
or
(d) make any other order.
(3) …
In Battiste v Mulvaney,[8] Doyle CJ commented that an application pursuant to r 8 is “an application of the well-known type, intended to deal with cases so clear that, as a matter of convenience and justice, the matter should not go to trial.”[9] The approach in cases such as this is well settled. Barwick CJ sets out the various expressions of judicial caution in General Steel Industries Inc v Commissioner for Railways (NSW):[10]
The test to be applied has been variously expressed; “so obviously untenable that it cannot possibly succeed”; “manifestly groundless”; “so manifestly faulty that it does not admit of argument”; “discloses a case which the Court is satisfied cannot succeed”; “under no possibility can there be a good cause of action”; “be manifest that to allow them” (the pleadings) “to stand would involve useless expense”.
At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or “so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument”; “so to speak apparent at a glance”.
[8] (Unreported S6419, Supreme Court of South Australia, Doyle CJ, 7 November 1997).
[9] Ibid 4; see also Mr Bankrupt Secondhand Goods v Richards (2000) 209 LSJS 278.
[10] General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, 129; see also Davis v The Commonwealth (1986) 61 ALJR 32, 35; Morton v Vouris (1996) 21 ACSR 497, 513 (Sackville J)
In forming a view as to whether a statement of claim can make out a reasonable cause of action, the court should accept allegations of fact in the pleadings at face value and assume that they can be made out at trial.[11]
[11] Empire Shipping v Shin Kobe Maru (1991) 32 FCR 78, 80; Johnson Tiles v Esso Australia (2000) 104 FCR 564, 586.
Particular care should be taken when a party is self-represented. In Wentworth v Rogers (No 5),[12] Kirby P noted:
Persons unfamiliar with the rules of pleading and the technicalities which surround the drafting of a statement of claim in adequate and permissible legal form are inevitably, if unrepresented, at a disadvantage. Court should approach the peremptory termination of the litigation with special care to ensure that, within the possibly ill expressed and unstructured statement of the legal claim sought to be ventilated, there is no viable cause of action which, with appropriate amendment of the pleading and a little assistance from the court, could be put into proper form. If this can be done, the court should avoid the summary termination of the proceedings for this will prevent the Court from examining any merits of the case, once the statement of claim is struck out.
With these observations in mind, I turn to examine the central question of whether the appellant’s pleadings founded a satisfactory cause of action. The appellant purported to make two claims: one pursuant to the Misrepresentation Act and another under s 52 of the Trade Practices Act for misleading or deceptive conduct.
Misrepresentation Act Claim
[12] Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 536; see also Rajski v Scitec Corporation Pty Ltd (Unreported, New South Wales Court of Appeal, 16 June 1986); Corporate Affairs Commission v Solomon (Unreported, New South Wales Court of Appeal, 1 November 1989, Mahoney AP)
The appellant did not identify a particular provision of the Misrepresentation Act so a brief exercise in elimination is necessary. Proceedings under Pt 2 of the Misrepresentation Act may only be commenced with the consent of the Attorney-General.[13] No such consent has been given. Section 6 permits recision of a contract because of misrepresentation in certain circumstances, and s 8 restricts the use of exclusion clauses. Neither applies to the present case.
[13] Misrepresentation Act 1972 (SA), s 4(9)
Only s 7 of the Misrepresentation Act remains. Sections 7(1) provides as follows:
(1)Where a contracting party is induced to enter into a contract by a misrepresentation made -
(a) by another party to the contract; or
(b) by a person acting for, or on behalf of, another party to the contract; or
(c) by a person who receives any direct or indirect consideration or material advantage as a result of the formation of the contract,
and any person (whether or not he or she is the person by whom the misrepresentation was made) would, if the misrepresentation had been made fraudulently, be liable for damages in tort to the contracting party subjected to the misrepresentation in respect of loss suffered by him or her as a result of the formation of the contract, that person is, subject to subsection (2), so liable to that contracting party, in all respects as if the misrepresentation had been made fraudulently and were actionable in tort.
Section 7 has received little judicial attention. In my opinion, the section has a relatively narrow focus. It does not provide remedies for misrepresentation at large. Rather, the references in s 7(1) to “a contracting party”, “another party to the contract” and the “formation of the contract” show that, properly constructed, the section only provides remedies in circumstances where a contract has actually been formed.
A bald but accurate summary of the appellant’s claim pursuant to the Misrepresentation Act is that a representation was made and that the representation was false. The appellant did not plead that a contract was formed giving rise to liability under the Misrepresentation Act. Therefore, the claim, as pleaded, must fail.
Trade Practices Act Claim
The appellant’s claim pursuant to s 52 of the Trade Practices Act has more substance. Section 52 provides:
52.Misleading and deceptive conduct
(1) A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
(2) Nothing in the succeeding provisions of this Division shall be taken as limiting by implication the generality of subsection (1).
The making of statements may constitute misleading and deceptive “conduct” for the purposes of s 52.[14]
[14] Bill Acceptance Corporation v GWA (1983) 50 ALR 242, 246.
The phrase “in trade or commerce” encompasses:[15]
… promotional activities in relation to, or for the purposes of, the supply of goods or services to actual or potential customers, be they identified persons or merely an unidentifiable section of the public.
This squarely describes the conduct of the security manager as pleaded by the respondent.
[15] Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594, 604.
Was the conduct alleged misleading or deceptive? Counsel for the respondent submitted that the appellant’s pleadings are defective in that they do not allege that the representations were, at the time they were made, misleading or deceptive. Rather, the appellant’s case is that the security manager’s conduct was rendered misleading and deceptive by the respondent’s later actions in refusing the appellant entry. Counsel for the respondent referred to the case of Global Sportsman v Mirror Newspapers:[16]
The non-fulfilment of a promise when the time for performance arises does not of itself establish that the promisor did not intend to perform it when it was made or that the promisor’s intention lacked any, or any adequate, foundation.
[16] (1984) 55 ALR 25, 31.
In Bill Acceptance Corporation v GWA,[17] the appellant claimed that a representation by the respondent that it would pay a fee to the appellant if certain transactions took place was rendered misleading and deceptive by the fact that it was later not fulfilled. In summarily dismissing the claim, Lockhart J made the following observations:[18]
Whether statements or representations of this type are misleading or deceptive must be determined at the time they were made, although this may be determined by reference to later events. For example, what a person does tomorrow may have a real bearing on whether he held a particular belief today.
The mere fact that representations as to future conduct or events do not come to pass does not make them misleading or deceptive notwithstanding that the applicant has relied on them and has altered his position on the faith on them.
Lockhart J found that the appellant needed to allege that the respondent, at the time of the representations, knew that the representations were false or was recklessly indifferent as to their accuracy. Without pleading that the respondent possessed such a state of mind, the claim was doomed to fail, and Lockhart J summarily dismissed the claim.
[17] (1983) 50 ALR 242.
[18] Ibid 250.
The statements in Bill Acceptance and Global Sportsman[19] appear fatal to the appellant’s case. However, the position has changed with the insertion of s 51A of the Trade Practices Act. Section 51A provides:
(1)For the purposes of this Division, where a corporation makes a representation with respect to any future matter (including the doing of, or the refusing to do, any act) and the corporation does not have reasonable grounds for making the representation, the representation shall be taken to be misleading.
(2)For the purposes of the application of sub-section (1) in relation to a proceeding concerning a representation made by a corporation with respect to any future matter, the corporation shall, unless it adduces evidence to the contrary, be deemed not to have had reasonable grounds for making the representation.
(3)…
The words “representation with respect to a future matter”[20] have a wide scope, and they cover the representations in the present case.
[19] Bill Acceptance Corporation v GWA (1983) 50 ALR 242; Global Sportsman v Mirror Newspapers (1984) 55 ALR 25.
[20] Ting v Blanche (1993) 118 ALR, 543, 552 (Hill J).
In Ting v Blanche, Hill J described the practical effect of s 51A:[21]
What s 51A does, in a practical sense, in cases where it applies, is to case the burden of proof upon the respondent corporation who has made a representation about a future matter to show that in making that representation it had reasonable grounds for doing so.
[21] Ibid.
The test in s 51A calls for reasonable grounds, not honest belief. In Cummins v Lewis, Sheppard and Neaves JJ observed:[22]
… the fact that a person may honestly believe in a particular state of affairs does not necessarily mean that he has reasonable grounds for his belief that the statement he makes is correct.
The provision is important to the present case, because it means that the appellant’s claim may succeed even if the security manager honestly believed that the representations were true. The respondent bears the onus to show that the security manager had reasonable grounds for making the representations.
[22] (1993) 113 ALR 285, 294 (Sheppard, Neaves JJ).
The appellant did not plead the use of s 51A, nor did parties refer to the provision in submissions before me. The law is unresolved on the question of whether a party must plead the use of s 51A. On the one hand, some cases emphasise the potential prejudice that a respondent may suffer if not put on notice of the burden to prove “reasonable grounds”.[23] On the other hand, cases such as Cummings and Lewis[24] suggest that given the provision is essentially an evidentiary provision, pleading its application is not only unnecessary, but potentially impermissible. I do not propose to express a general opinion on the matter except to say that in circumstances such as this, where the appellant is self-represented, a strict requirement to plead s 51A is inappropriate. In the circumstances the magistrate should have applied s 51A, and subject to submissions from the respondent on the issue, should have concluded that the appellant’s claim pursuant to s 52 had a possibility of success.
[23] Western Australia v Bond Corporation Holdings Ltd (1990) 99 ALR 125
[24] (1993) 113 ALR 285, 294 (Sheppard, Neaves JJ).
Claim for Racial Discrimination
Paragraph 4 on the second page of the appellant’s Particulars of Claim states:
The true situation which the plaintiff intends to establish at trail [sic] is that the plaintiff never had problems with the hotel, its staff, customers, Waves, RSVP and/or its members. The hotel security officer who banned him for life targeted the plaintiff because of his race and ethnicity.
The magistrate wrote that “by any other name, is an allegation of racial discrimination and I am mindful of the fact that this court has no jurisdiction to entertain that aspect.” Such a claim would be governed by State and Federal discrimination legislation and heard in either the Federal Court or the Equal Opportunity Tribunal.
The allegation in para 4 might somehow support the appellant’s other claims, however, the magistrate is quite right that he did not have jurisdiction to consider the allegation in its own right.
Conclusion
As stated, the power of summary dismissal should be exercised with caution, and only when it is clear that the case as pleaded must fail.
The magistrate was confronted with pleadings that were inadequate. The appellant is to be under no illusion in this regard. The pleadings were confused and frequently referred to irrelevant matters. They included a claim with respect to the Misrepresentation Act that was hopeless. The magistrate gave the appellant repeated opportunities to address these issues, but the appellant refused.
Because of the effect of s 51A of the Trade Practices Act, I find that the claim pursuant to s 52 cannot at this stage be categorised as one that could not possibly succeed. I appreciate the difficulty of the magistrate’s position in that there was no reference in argument to s 51A. Nonetheless I find that he should not have summarily dismissed that aspect of the claim.
I order that the matter be remitted to the Magistrates Court.
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