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Reisner v Bridge Housing Ltd

Reisner v Bridge Housing Ltd

Case [2021] FCA 279 29 March 2021

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FEDERAL COURT OF AUSTRALIA
Reisner v Bridge Housing Ltd [2021] FCA 279

File number: NSD 1163 of 2020

Judgment of: FLICK J

Date of judgment: 29 March 2021

Catchwords:
HUMAN RIGHTS – application to maintain status quo pending resolution of complaint to the Australian Human Rights Commission – no complaint lodged – no jurisdiction

PRACTICE AND PROCEDURE – applications for interlocutory relief – application for stay – application refused – application for reconstitution of the Court – alleged reasonable apprehension of bias – application refused – application for Pro Bono assistance – application refused

Legislation:
Australian Human Rights Commission Act1986 (Cth) ss 46PP, 46PO

Federal Court of Australia Act 1976 (Cth) s 32

Judiciary Act 1903 (Cth) s 78B

Federal Court Rules 1979 (Cth) O 80, r 4

Federal Court Rules2011 (Cth) r 4.12

Cases cited:
ADF15 v Minister for Immigration and Border Protection [2018] FCA 1099

Carlsson v Ford [2019] FCA 584, (2019) 371 ALR 382

Daccache v BOC Limited [2020] FCA 485

Dowling v Fairfax Media Publications Pty Ltd (No. 2) [2010] FCAFC 28

Fuller v Toms [2012] FCA 27, (2012) 247 FCR 440

Johnson v Johnson [2000] HCA 48, (2000) 201 CLR 488

Kolya v Tax Practitioners Board [2012] FCA 492, (2012) 88 ATR 471

NADR v Minister for Immigration & Multicultural Affairs [2002] FCA 361

Nand v Fuji Xerox Australia Pty Ltd [2014] FCA 995

Re Bridge Housing Ltd; Reisner v Bridge Housing Ltd [2021] NSWCAT

Re JRL; Ex parte CJL (1986) 161 CLR 342

Re Minister for Immigration and Multicultural Affairs; ex parte AB (2000) 177 ALR 225

SZOMF v Minister for Immigration and Citizenship [2011] FCA 57

Taylor v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 319

Von Reisner v Commonwealth [2007] FCA 1959

Von Reisner v Commonwealth (No 2) [2008] FCA 430

Von Reisner v Commonwealth (No 3) [2008] FCA 1028

Von Reisner v Commonwealth of Australia [2009] FCAFC 97, (2009) 177 FCR 531

Wilson v Britten-Jones [2019] FCA 747

Division: General Division

Registry: New South Wales

National Practice Area: Administrative and Constitutional Law and Human Rights

Number of paragraphs: 64

Date of hearing: 23 March 2021

Counsel for the Applicant: The Applicant appeared in person

Counsel for the Respondents: Mr J O’Connor

Solicitor for the Respondents: Bridge Housing Ltd

ORDERS

NSD 1163 of 2020

BETWEEN:
KOIDU REISNER

Applicant

AND:
BRIDGE HOUSING LTD

First Respondent

THEO POSUMAH

Second Respondent

ORDER MADE BY:

FLICK J

DATE OF ORDER:

29 MARCH 2021

THE COURT ORDERS THAT:
1.The application for a stay is refused.
2.The application for the reconstitution of the Court is rejected.
3.The application for the appointment of Pro Bono Counsel is rejected.
4.The Application under the Australian Human Rights Commission Act 1986 (Cth) filed on 22 October 2020 is dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
FLICK J:

On 22 October 2020, the Applicant in the present proceeding, Ms…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Reisner v Bridge Housing Ltd

Details

AGLC: Reisner v Bridge Housing Ltd [2021] FCA 279
Case: [2021] FCA 279
Decision Date

CaseChat Overview and Summary

Reisner v Bridge Housing Ltd is a case in which Ms Reisner, the plaintiff, claims to have been exposed to unlawful discrimination and a violation of her human rights. The dispute involves various allegations of disability and disadvantage, which the plaintiff believes stem from actions taken by Bridge Housing Ltd, the defendant. The case was heard in a court of competent jurisdiction. Ms Reisner sought various orders, including a stay of proceedings, the reconstitution of the Court, the appointment of Pro Bono Counsel, and an order under the Australian Human Rights Commission Act 1986 (Cth). The court was required to determine the validity of these claims and whether the plaintiff was entitled to the relief she sought.

The court examined the legal issues presented in the case, including the application for a stay of proceedings, the request for the reconstitution of the Court, the application for the appointment of Pro Bono Counsel, and the substantive application invoking s 46PP of the Human Rights Commission Act. The court considered the arguments presented by both parties and assessed whether the plaintiff's claims were substantiated and whether the orders sought were justified.

In its reasoning, the court found that Ms Reisner had not provided sufficient evidence to support her claims of unlawful discrimination and human rights violations. Furthermore, the court noted that Ms Reisner had effectively participated in the court process despite not having legal representation. Consequently, the court rejected the plaintiff's application for a stay of proceedings, the reconstitution of the Court, and the appointment of Pro Bono Counsel. The substantive application invoking s 46PP of the Human Rights Commission Act was also dismissed.

The court issued orders dismissing the plaintiff's application for a stay of proceedings, rejecting the application for the reconstitution of the Court, and dismissing the application for the appointment of Pro Bono Counsel. Additionally, the court dismissed the plaintiff's substantive application invoking s 46PP of the Human Rights Commission Act. The question of costs was reserved, and the court indicated that if an application for costs was made, it would be resolved on the papers.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Notwithstanding the variety of ways in which Ms Reisner claims to have been exposed to unlawful discrimination and a violation of her “human rights”, and her claims to have suffered and to suffer disability or disadvantage, it should finally be noted that she has effectively participated in the processes of this Court. Although a lawyer on her behalf would have unquestionably presented a far more focussed presentation of the facts, Ms Reisner did not present as a litigant lacking the ability to present her case. CONCLUSIONS It has been concluded that Ms Reisner has been unsuccessful in seeking an order that the Court be reconstituted or an order for the appointment of Pro Bono Counsel. Her substantive application invoking s 46PP of the Human Rights Commission Act has also been unsuccessful. The question of costs will be reserved. If an application is made for costs, that will be resolved on the papers. THE COURT ORDERS THAT:1.The application for a stay is refused. 2.The application for the reconstitution of the Court is rejected.3.The application for the appointment of Pro Bono Counsel is rejected. 4.The Application under the Australian Human Rights Commission Act 1986 (Cth) filed on 22 October 2020 is dismissed.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Reisner v Bridge Housing Ltd [2021] FCA 279

Most Recent Citation

Chadwick v State of New South Wales [2022] FCA 918

Cases citing this decision · 1 of 1 shown

Chadwick v State of New South Wales
[2022] FCA 918 Para 17

…2019] FCA 584; 371 ALR 382, 390 at [28]; cited with approval in Summers v Qantas Airways Limited [2021] FCA 391 at [71]; Reisner v Bridge Housing Ltd [2021] FCA 279 at [50]; and Daccache v BOC Limited [2020] FCA 485 at [29].…

View all 1 citing cases →

Cases cited in this decision · 20 of 20 shown

Daccache v BOC Limited
[2020] FCA 485 Para 4

…The purpose of the section is “ to protect the complaint-making and resolution process ”: Daccache v BOC Limited [2020] FCA 485 (“ Daccache v BOC ”). Justice McKerracher there relevantly observed: [30] I consider that the purpose of s 46PP is to protect the complaint-making and resolution process. The mediation r…
Wilson v Britten-Jones
[2019] FCA 747 Para 3

…concerned cannot, as a condition of granting the interim injunction, require a person to give an undertaking as to damages. In Wilson v Britten-Jones [2019] FCA 747, Nicholas J summarised the effect of this provision as follows: [42] Section 46PP(1) is the source of the Court’s jurisdiction to grant an interim in…
Venerable Dr Peter Carlsson v Right Reverend John Ford
[2019] FCA 584 Para 4

…ed outcome are pursued. His Honour there also previously referred with approval to the following observations of Besanko J in Carlsson v Ford [2019] FCA 584, (2019) 371 ALR 382 at 390: [28] … It seems to me that the two powers (ie, ss 46PO(6) and 46PP) operate in two different contexts. Section 46PP is designed t…
ADF15 v Minister for Immigration and Border Protection
[2018] FCA 1099 Para 13

…to warrant a referral for legal assistance ”: ADF15 v Minister for Immigration and Border Protection [2018] FCA 1099 at [29] per Flick J. It was there observed that the “ existence of a pro bono referral system, and the fact that members of the bar are prepared to offer their services for free, is a resource whic…
Nand v Fuji Xerox Australia Pty Ltd
[2014] FCA 995 Para 13

…ners Board [2012] FCA 492 at [25], (2012) 88 ATR 471 at 477 per Foster J; Nand v Fuji Xerox Australia Pty Ltd [2014] FCA 995 at [4] per Gleeson J (when sitting as a Judge of this Court). The “ mere fact that a party is unrepresented ”, however, “ is not a sufficient reason of itself to warrant a referral for lega…
Kolya v Tax Practitioners Board
[2012] FCA 492 Para 13

…certificate could be refused “ where a case is patently hopeless ”. See also: Kolya v Tax Practitioners Board [2012] FCA 492 at [25], (2012) 88 ATR 471 at 477 per Foster J; Nand v Fuji Xerox Australia Pty Ltd [2014] FCA 995 at [4] per Gleeson J (when sitting as a Judge of this Court). The “ mere fact that a party…
Fuller v Toms
[2012] FCA 27 Para 13

…The discretion as now conferred is “ very broad ” and unconstrained by the prior limitation: Fuller v Toms [2012] FCA 27, (2012) 247 FCR 440. Although a referral certificate was there refused, Barker J made the following observations in relation to the width of the power conferred (at 457 to 458): [92] It may be…
SZOMF v Minister for Immigration and Citizenship
[2011] FCA 57 Para 7

…rs [2002] FCA 361 at [16] per Emmett J). Such an allegation must be “ strictly proved ”: SZOMF v Minister for Immigration and Citizenship [2011] FCA 57 at [24] per McKerracher J.…
Dowling v Fairfax Media Publications Pty Ltd (No 2)
[2010] FCAFC 28 Para 8

…no litigant should be hesitant in making a properly formulated and well-founded allegation: cf. Dowling v Fairfax Media Publications Pty Ltd (No. 2) [2010] FCAFC 28 at [106] per Logan and Flick JJ.…
von Reisner v Commonwealth
[2009] FCAFC 97 Para 21

…y made were varied. An appeal by Ms Reisner of the March 2008 orders and judgment was successful: Von Reisner v Commonwealth of Australia [2009] FCAFC 97, (2009) 177 FCR 531. The order previously made that Ms Reisner was not to commence any further proceeding without the leave of the court was set aside.…
Von Reisner v Commonwealth (No 3)
[2008] FCA 1028 Para 21

…at [14]. The matter again came back before the Court and a further judgment was published in July 2008: Von Reisner v Commonwealth (No 3) [2008] FCA 1028. On that occasion orders as previously made were varied. An appeal by Ms Reisner of the March 2008 orders and judgment was successful: Von Reisner v Commonwealth…
Von Reisner v Commonwealth (No 2)
[2008] FCA 430 Para 21

…efore the Court in March 2008 when the Applicant sought to file an Amended Application and Statement of Claim : Von Reisner v Commonwealth (No 2) [2008] FCA 430. The Applicant again met with failure. It was then concluded ( inter alia ) that “ the proposed amended application [went] beyond the scope of any amendm…
Von Reisner v Commonwealth
[2007] FCA 1959 Para 21

…m that had been filed by Ms Reisner, naming as Respondents the Commonwealth of Australia and the State of New South Wales: Von Reisner v Commonwealth [2007] FCA 1959. It was concluded that the “ proceedings against the Commonwealth [were] but a colourable attempt to attract the jurisdiction of this Court ” and tha…
Taylor v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 319 Para 13

…n more force in relation to the current r 4.12(1): see generally Taylor v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 319 at [10] and Rivera v Minister for Home Affairs [2008] FCA ( Rivera ) at [8]. [94] It should also be noticed that by r 4.13, a party has no right to apply for a…
NADR v Minister for Immigration and Multicultural Affairs
[2002] FCA 361 Para 7

…Kirby J) and any finding as to actual bias is “ a grave and exceptional matter ” (cf. NADR v Minister for Immigration & Multicultural Affairs [2002] FCA 361 at [16] per Emmett J). Such an allegation must be “ strictly proved ”: SZOMF v Minister for Immigration and Citizenship [2011] FCA 57 at [24] per McKerracher…
Johnson v Johnson
[2000] HCA 48 Para 19

…as is an objective one and one founded upon the necessity for public confidence in the integrity and impartiality of the judiciary: Johnson v Johnson [2000] HCA 48, (2000) 201 CLR 488 at 492 to 493. Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ there summarised the position as follows: [11] … It has been esta…
Re JRL; Ex parte CJL
[1986] HCA 39 Para 20

…founded upon a Judge’s participation in other proceedings involving one of the litigants, must be “ firmly established ”: Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 (“ Re JRL ”). Mason J (as his Honour then was) there observed: It seems that the acceptance by this Court of the test of reasonable apprehension of…
Livesey v New South Wales Bar Association
[1983] HCA 17 Para 20

…prehension of bias in such cases as [ Reg. v Watson; Ex parte Armstrong (1976) 136 CLR 248] and [ Livesey v New South Wales Bar Association (1983) 151 CLR 288] has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on a…
R v Watson; Ex parte Armstrong
[1976] HCA 39 Para 20

…seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as [ Reg. v Watson; Ex parte Armstrong (1976) 136 CLR 248] and [ Livesey v New South Wales Bar Association (1983) 151 CLR 288] has led to an increase in the frequency of applications by litigants that judicial officer…
R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group
[1969] HCA 10 Para 20

…prejudgment and this must be “firmly established”: Reg. v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [(1969) 122 CLR 546 at 553 to 554]; [ Reg. v Watson; Ex parte Armstrong (1976) 136 CLR at 262]; [ R v Lusink; Ex parte Shaw (1980) 55 ALJR 12 at 14, (1980) 32 ALR 47 at 50 to 51]. Alt…

Legislation cited in this decision · 5

Australian Human Rights Commission Act 1986 (Cth)
46PO, 46PP 3 mentions (from Para 1)
Federal Court of Australia Act 1976 (Cth)
32 3 mentions (from Para 13)
Federal Court Rules 2011 (Cth)
4.12 2 mentions (from Para 12)
Judiciary Act 1903 (Cth)
78B 2 mentions (from Para 19)
Federal Court Rules 1979 (Cth)
1 mention (from Para 12)

File number:	NSD 1163 of 2020
Judgment of:	FLICK J
Date of judgment:	29 March 2021
Catchwords:	HUMAN RIGHTS – application to maintain status quo pending resolution of complaint to the Australian Human Rights Commission – no complaint lodged – no jurisdiction PRACTICE AND PROCEDURE – applications for interlocutory relief – application for stay – application refused – application for reconstitution of the Court – alleged reasonable apprehension of bias – application refused – application for Pro Bono assistance – application refused
Legislation:	Australian Human Rights Commission Act1986 (Cth) ss 46PP, 46PO Federal Court of Australia Act 1976 (Cth) s 32 Judiciary Act 1903 (Cth) s 78B Federal Court Rules 1979 (Cth) O 80, r 4 Federal Court Rules2011 (Cth) r 4.12
Cases cited:	ADF15 v Minister for Immigration and Border Protection [2018] FCA 1099 Carlsson v Ford [2019] FCA 584, (2019) 371 ALR 382 Daccache v BOC Limited [2020] FCA 485 Dowling v Fairfax Media Publications Pty Ltd (No. 2) [2010] FCAFC 28 Fuller v Toms [2012] FCA 27, (2012) 247 FCR 440 Johnson v Johnson [2000] HCA 48, (2000) 201 CLR 488 Kolya v Tax Practitioners Board [2012] FCA 492, (2012) 88 ATR 471 NADR v Minister for Immigration & Multicultural Affairs [2002] FCA 361 Nand v Fuji Xerox Australia Pty Ltd [2014] FCA 995 Re Bridge Housing Ltd; Reisner v Bridge Housing Ltd [2021] NSWCAT Re JRL; Ex parte CJL (1986) 161 CLR 342 Re Minister for Immigration and Multicultural Affairs; ex parte AB (2000) 177 ALR 225 SZOMF v Minister for Immigration and Citizenship [2011] FCA 57 Taylor v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 319 Von Reisner v Commonwealth [2007] FCA 1959 Von Reisner v Commonwealth (No 2) [2008] FCA 430 Von Reisner v Commonwealth (No 3) [2008] FCA 1028 Von Reisner v Commonwealth of Australia [2009] FCAFC 97, (2009) 177 FCR 531 Wilson v Britten-Jones [2019] FCA 747
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	64
Date of hearing:	23 March 2021
Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondents:	Mr J O’Connor
Solicitor for the Respondents:	Bridge Housing Ltd

ORDER MADE BY:	FLICK J
DATE OF ORDER:	29 MARCH 2021