Rana v University of South Australia
[2003] FMCA 525
•21 November 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RANA v UNIVERSITY OF SOUTH AUSTRALIA | [2003] FMCA 525 |
| HUMAN RIGHTS – Disability discrimination – Application under Human Rights and Equal Opportunity Commission Act 1986 and Racial Discrimination Act 1975 – where applicant did not sufficiently outline the nature of the claims made – where respondent brought an application for summary dismissal – where applicant’s affidavits prolix. |
Human Rights & Equal Opportunity Commission Act 1986, s.46PH(2)
Disability Discrimination Act 1992
Racial Discrimination Act1975
Federal Magistrates Court Rules 2001, r 4.04(1)(c), 13.10(a)
W v Flinders University of South Australia [1998] HREOCA 19
Universal Music Australia v Australian Competition & Consumer Commission [2003] FCAFC 193
Hamod v State of NSW [2001] FCA 157
Breyer Merchandisers v Nike Australia [2001] FCA 154
Ebber v Human Rights & Equal Opportunity Commission (1995) 129 ALR 455
McKellar v Container Terminal Management Services Limited (1999) 165 ALR 409
Re Morton; Ex parte Mitchell Products Pty Limited (1996) 21 ACSR 497
Jandruwanda v University of South Australia (No 2) [2003] FMCA 233
| Applicant: | RANJIT RANA |
| Respondent: | UNIVERSITY OF SOUTH AUSTRALIA |
| File No: | AZ 175 of 2003 |
| Delivered on: | 21 November 2003 |
| Delivered at: | Sydney |
| Hearing date: | 4 November 2003 |
| Judgment of: | Raphael FM |
REPRESENTATION
| For the Applicant: | Applicant in person |
| Solicitors for the Respondent: | Minter Ellison |
ORDERS
Application dismissed.
Applicant to pay respondent’s costs in the sum of $1,500.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
AZ 175 of 2003
| RANJIT RANA |
Applicant
And
| UNIVERSITY OF SOUTH AUSTRALIA |
Respondent
REASONS FOR JUDGMENT
On 5 August 2003 Mr Rana filed an application in this court against the respondent. The application indicated that it was an application under the Human Rights & Equal Opportunity Commission Act 1986 (“HREOC Act”) and that he sought the following orders:
i)The applicant be allowed to do MBA;
ii)The applicant be considered throug (sic) special entry program to do MBA;
iii)The applicant be considered from group work in a case by case basis.
The applicant also completed an information sheet of the type required in cases alleging unlawful discrimination. He indicated that the Acts under which the action he was complaining of were unlawful were the Disability Discrimination Act 1992 and the Racial Discrimination Act1975. He did not complete that part of the form which requires all sections of the Act relevant to the application to be stated. Mr Rana filed an affidavit which consisted of a handwritten document entitled “Notes for the Affidavit” of fourteen pages together with several pages of what were described as appendices. There is included among these documents the notice of termination under s 46PH(2) of the HREOC Act and the statement of reasons dated 1 August 2003. On 25 August 2003 the applicant filed additional documents to support his affidavit. These consisted of letters written on behalf of the applicant or about the applicant. One is from the Royal Nepalese Consulate General dated 24 June 1987, one is from the University of Adelaide, one is from Graham Ingerson MP and there is a press cutting about Mr Rana. There would appear to have been some problems about service so the matter was adjourned from its original first hearing date. That occurred before me on 9 September 2003. On that date I made orders requiring the respondent to file its response. I was advised that the respondent would also wish to consider making an application for summary dismissal. I suggested to Mr Rana that he file a further affidavit which might assist both the respondent and myself to understand the nature of his claims. Such further affidavit, which consisted of fifteen handwritten pages, was filed on 22 September 2003. The respondent filed its response together with an affidavit on the same day. The respondent determined to make an application for summary judgment and by consultation between the parties the hearing of the application was fixed for 4 November 2003.
The respondent’s application for summary dismissal was brought pursuant to Rule 4.04(1)(c) and Rule 13.10(a) of the Federal Magistrates Court Rules and was supported by an outline of argument and an affidavit of Ms Birss. The applicant filed an outline of argument which consisted of a twenty-three page handwritten document.
The respondent argued that the application should be dismissed on the ground that no reasonable cause of action had been disclosed and stated that this situation existed because the applicant had failed to abide by the rules of court, the application was lacking in merit and that it was unfair to put the respondent, a public institution, to the expense and difficulty of defending such general allegations of the applicant and responding to material which is irrelevant and prolix.
The respondent pointed out that the application was lacking in that it did not state any grounds on which orders were sought from the court, it did not state the sections of the legislation relevant to the application and failed to complete the form and certain other particulars. The respondent submitted that the applicant’s affidavit was lacking in the following respects:
“(a)The applicant has not pleaded the material facts necessary for the purpose of formulating a complete cause of action;
(b)The affidavit refers to documents which have not been annexed to the affidavit (regarding Flinders University);
(c)General allegations are made in the affidavit which lack sufficient particularity to enable the respondent to know in advance the case it has to meet;
(d)The applicant has failed to explain how his allegations amount to unlawful discrimination or victimisation;
(e)Some parts of the affidavit are unintelligible;
(f)The affidavit includes much irrelevant material;
(g)The affidavit is prolix and includes information which the respondent should not have to respond to.”
The respondent also argued that the applicant’s case lacked merit so that it disclosed no reasonable cause of action.
The factual background to this matter is most clearly set out in the decision letter from the Human Rights & Equal Opportunity Commission dated 1 August 2003. Having read all the submissions made by Mr Rana in affidavit form and otherwise I am satisfied that the history contained in this letter includes all the factors that would be relevant for consideration of a claim based (howsoever loosely) on an alleged breach of either the Disability or the Racial Discrimination Act. The relevant parts of the letter are set out below:
“You state that you are a graduate of the university and that prior to immigrating to Australia you worked in a variety of management positions in Asia, but you have not worked for several years due to the effects of your psychiatric condition. In July 2002 you applied for a place in the MBA but you would have been satisfied with an offer of a place in the Graduate Diploma course. You state that you had the qualifications and experience required for admission to the court but you did not have your recent employment references. When you submitted your application you included references that had been written for a course at a different university but you state that the university required you to obtain new references and to use a prescribed form.
You state that you discussed your situation with the Disability Liaison Officer, Mr Stephen Manson, who suggested that you apply through the special entry program for students with disabilities. You followed this advice and provided several medical reports to the university to verify that you had a disability. You state that on 29 August 2002 Ms Shard Lorenzo advised you that your application for special entry had been rejected.
On 20 September 2002 Professor Helen Thorne, Head of the International Graduate School of Management, informed you that your application to the school had not been successful. In her letter Professor Thorne referred to medical advice that you could not participate effectively in group work and to concerns about your referees. Professor Thorne advised that she was prepared to discuss the matter further with the Associate Dean – Academic in the Adelaide Graduate Business School, where you had previously completed a graduate certificate, or with your nominated referees.
You allege that the university unlawfully discriminated against you on the ground of psychiatric disability. You note that Professor Thorne referred in her letter to medical advice to the effect that you were unable to participate in group work and that Ms Lorenzo also referred to medical evidence that she relied upon in making her decision. The university was notified of the complaint on 12 November 2002. A response was received on 16 December 2002 and forwarded to you on 15 January 2003.
The university advised that you did not meet the criteria for entry to the MBA and graduate diploma. The first requirement was a bachelor’s degree, and the university does not dispute that you have a relevant degree. The second requirement was a minimum of two years business experience and the third requirement was two employment references.
The university confirms that you provided references that had been used at another university and claims that it could not be sure that the referees would be prepared to recommend you again for a different course. The university claims that your referees could not be contacted and the their companies were not listed in the Adelaide telephone directories. It also appeared that they lived at the same address, or at least in the same building, which led the university to suspect that you may have had a social relationship with them rather than an employment relationship. The university was also not satisfied that you had at least two years business experience. In forming this view the university appears to have relied on information about your employment history which was contained in the medical reports you provided.
The university provided a copy of its Policy for Students with Disabilities which permits course entry requirements to be varied in cases where an applicant demonstrates that they have a disability which has hindered their academic achievements or career progression.
The university confirms that you sought entry through the special entry program for applicants with disabilities and that your application was considered by Ms Lorenzo, in consultation with Professor Thorn. The university states that Professor Thorn did not think it appropriate to modify the entry criteria in your case because you met only one of three criteria and there was a question about your ability to participate in group work which was considered an essential part of the course. The university emphasises that two years relevant employment experience is a minimum requirement for applicants and you had been unable to show that you had any management or business experience. The university contends that you would have been unable to participate in the interactive teaching and learning environment where students share their work experiences and discuss practical applications of business theories. The university claims it would not have been fair to place you in a situation where you may have struggled with aspects of the course, and it may have detracted from the learning experience of other students. The university states that the decision was explained to you at the time by Ms Justene Knight.
The university confirms that it considered a report from your treating psychiatrist, Dr Carmine Pasquale, about your capacity to participate in group work. The initial advice from Dr Pasquale was that you could not undertake group work, but on
21 September 2002 you provided a report which stated that you could undertake group work. The university, concerned about the apparently contradictory reports, requested additional information from Dr Pasquale, and states that it was not satisfied with his response.”
The respondent’s arguments that the applicant’s case lacks merit starts on the basis that the applicant has no reasonable prospect of success in arguing that the respondent’s rejection of an application for entry into a university course on the grounds that the applicant failed to meet entry criteria for the course amounts to either direct or indirect discrimination. The respondents argue that the applicant has not in any of his lengthy documents addressed the question of how he has been treated less favourably than other applicants all of whom the respondent says were required to meet the entry criteria for the courses. The respondent goes on to argue that in order to establish that indirect disability discrimination had occurred, the applicant would need to establish that the respondent’s requirement that the applicant meets its entry criteria in order to be accepted for the MBA or graduate diploma course was not reasonable. Once again this has not been addressed by the applicant.
The respondent draws comfort from the decision of the Human Rights & Equal Opportunity Commission in W v Flinders University of South Australia [1998] HREOCA 19 where Commissioner McEvoy considered that Flinders University:
“…must maintain the academic integrity of all its courses and although it must provide appropriate accommodations to persons with disabilities so that they are not thereby precluded from undertaking such studies as they choose at university, this does not of course mean that the university is obliged to forego the academic requirements of its courses for people with disabilities. It is these considerations which must be taken into account in considering what is ‘reasonable having regard to the circumstances of the case.’
The circumstances of this case include the consideration that the requirement or the condition relates to assessment leading to the conferral of a degree. Among the circumstances to be taken into account therefore are those which relate to the issue of academic integrity… The maintenance of its academic integrity on a broad basis is absolutely fundamental to any university’s overall function and credibility.” [67]
The arguments put by the respondent for not permitting the applicant to enrol in its course were of two types. Firstly, the applicant failed to comply with the entry requirements including those for the provision of up to date and relevant referees. The second ground for rejection of the applicant as a candidate was that the university considered that he would be unable to comply with one of the inherent requirements of the course, namely the requirement to undertake group activity. The respondent relied upon the medical reports provided by the applicant himself which indicated that his psychiatric disorder would make this type of activity very difficult for him, at least when he was suffering regular relapses. There was also the problem that the applicant did not appear to have the necessary management or business experience and this might cause him to struggle as well as detract from the learning experience of other students.
The applicant appeared before me at the hearing on 4 November 2003. He spoke at length. Unfortunately, he did not really address the central issues in the matter. He had obviously done a considerable amount of legal research but it was not clear how the cases which he cited to me were relevant in the context of his own proceedings. A large number of the matters which he raised were irrelevant.
One of the things that has to be clearly understood about Australia’s federal anti-discrimination laws is that they are laws to prevent discrimination but not laws to create affirmative action. Universities are required not to discriminate against people with disabilities but they are not required to go out of their way to ensure that every person who suffers from a disability should be allowed to sit for a degree. This is the effect of the W v Flinders University decision previously quoted.
It is also well established that the length of an affidavit is no indicator of its relevance or of its persuasiveness. The same can equally be said for submissions. This is why the courts have declared prolixity to be
a vice. In Universal Music Australia v Australian Competition & Consumer Commission [2003] FCAFC 193 the Full Court said at [125]:
The large number of grounds of appeal in the notices filed by Universal and Warner render those notices almost useless, as a means of informing the Court and the other parties what the appeal is about. Prolixity of this order is unacceptable. It is not too much for the Court to expect lawyers who prepare a notice of appeal to subject the case, and the trial judge’s reasons, to a degree of analysis and to identify the issues critical to a successful appeal. We deplore the practice, which seems to be becoming increasingly common, of lawyers drafting notices of appeal that challenge virtually every observation of the trial judge, whether or not that observation played any part in the judge’s conclusion. The capacity to identify the critical elements of a case, and persuasively to address them, is the mark of a good advocate.”
See also Hamod v State of NSW [2001] FCA157 at [38] and Breyer Merchandisers v Nike Australia [2001] FCA 154 at [22].
In deciding whether or not to accede to the respondent’s request I have taken into account the fact that the applicant is self represented. I have also considered the likelihood of him being able to amend his application so that it indicates a prima facie case in order to comply with the requirement indicated by Drummond J in Ebber v Human Rights & Equal Opportunity Commission (1995) 129 ALR 455 at [468]:
“A complainant must therefore have at the outset of an inquiry into his complaints sufficient material; it need not be leqally 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 enquiry.”
I am mindful of the strictures against lightly making a decision to dismiss an application on the grounds that no reasonable cause of action is disclosed which are found in cases such as McKellar v Container Terminal Management Services Limited (1999) 165 ALR 409 at [416] to [417] or in Re Morton; Ex parte Mitchell Products Pty Limited (1996) 21 ACSR 497 at [513] to [515]. The applicant in these proceedings told me that he had assisted another litigant before me, Ms Jandruwanda whose case against the University of South Australia was dismissed (Jandruwanda v University of South Australia (No 2) [2003] FMCA 233. Ms Jandruwanda’s case was dismissed because after several attempts she was still unable to show a reasonable cause of action. Mr Rana has submitted to me three lengthy handwritten documents attempting to show that he had such an action. I am unable to be confident that if he was given a further opportunity he could produce anything better.
The applicant has rightly pointed out to me that the Federal Magistrates Court is not intended to be a court of strict pleading and it is designed to provide cheaper, quicker and simpler solutions. The difficulty is that I would anticipate that any proceedings that were allowed to run in relation to this matter would be neither simple nor quick and therefore not cheap. This is not so much because of the extent or the complexity of the discrimination alleged but rather the format of the allegations and the manner in which they are likely to be presented.
I am satisfied that the applicant has shown no case to answer under the Racial Discrimination Act and that he has shown no reasonable cause of action in respect of his complaints under the Disability Discrimination Act. As I said in Jandruwanda:
“I do not think that it is fair that the respondent, which is a public institution, should be required to continue to defend proceedings that have been articulated in the manner articulated….”
I dismiss this application pursuant to Part 13 Rule 13.10(a) of the Federal Magistrates Court Rules. I order that the applicant pay the respondent’s costs of the proceedings which I assess in the sum of $1,500.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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