Saddi v Active Employment and Ors.
[2001] FMCA 73
•14 September 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
SADDI v ACTIVE EMPLOYMENT & ORS [2001] FMCA 73
DISCRIMINATION – disability discrimination – application for extension of time refused – no prima facie case of discrimination – no evidence to draw inference of discrimination from.
COSTS – no order as to costs where application dismissed early in proceedings.
Human Rights and Equal Opportunity Act 1986 (Cth) ss 46 PH, 46 PO
Disability Discrimination Act1992 (Cth) ss 5, 21, 24
Disability Services Act1986 (Cth) ss 5, 20 (1), 26
Lan Low v Australian Taxation Office [2000] FMCA 6 followed.
TNT v Brooks (1979) 23 ALR 345 referred to.
| Applicant: | AWAD SADDI |
| Respondents: | ACTIVE EMPLOYMENT BREAK THRU PERSONNEL INC |
| File Nos: | SZ 411/01 SZ 412/01 |
| Delivered on: | 14 September 2001 |
| Delivered at: | Sydney |
| Hearing Date: | 7 September 2001 |
| Judgment of: | Raphael FM |
REPRESENTATION
| For the Applicant: | Mr A Saddi in person |
| Counsel for the first, second and third Respondents: | Mr R Lewis |
| Solicitors for the first, second and third Respondents: | Schrader & Associates |
| Counsel for the fourth Respondent: | Mr A Markus |
| Solicitors for the fourth Respondent: | Australian Government Solicitor |
ORDERS
Application for extension of time in each matter refused.
Each application dismissed.
No orders for costs.
FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY
SZ 411 of 2001
SZ 412 of 2001
SZ 413 of 2001
SZ 414 of 2001
AWAD SADDI
Applicant
And
ACTIVE EMPLOYMENT
CARE EMPLOYMENT
BREAK THRU PERSONNEL INC
COMMONWEALTH OF AUSTRALIA
Respondents
REASONS FOR JUDGMENT
On 12 June 2001 Mr AWAD SADDI commenced separate proceedings against each of the respondents in the Federal Court of Australia. On 23 July 2001 each of the matters were transferred by Hill J to this Court. They have never been officially consolidated, but as they arose out of similar facts and circumstances they were all dealt with together at the interlocutory stage, and if the matter was to proceed to trial would in all probability be the subject of orders that they be heard consecutively.
Mr Saddi suffers from the combined effects of schizophrenia and delayed mental development. The complaint against the first three respondents is that as employment agencies they did not assist in obtaining employment for him, and as against the fourth respondent, it did not accept him into a rehabilitation and training scheme.
The proceedings were brought pursuant to s 46 PO of the Human Rights and Equal Opportunity Commission Act following a notice of termination issued pursuant to s 46 PH (2) of the Act terminating each of Mr Saddi’s four complaints on the ground that the President was satisfied that the complaint was misconceived.
Section 46 PO of the HREOC Act provides that if a complaint has been terminated by the President under s 46 PH, any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Magistrates Court alleging unlawful discrimination by one or more of the respondents to the terminated complaint. The time limit for that application is set out in s 46 PO (2):
46 PO (2) [Time limit]
The application must be made within
28 days after the date of issue of the notice under subsection 46 PH (2), or within such further time as the Court concerned allows.
As the dismissal of Mr Saddi’s complaints occurred on 26 April 2000 he would have been obliged to make his application to the Federal Court or this Court within 28 days thereof, i.e. by 24 May 2000. In fact the applications were not made until 12 June 2001, over a year later. In an affidavit filed with each of the applications Mr Saddi said:
“I was unable to file my discrimination complaint on time because I started working and had to move house. (Attached is the letter of appointment from employer).
I am a person with a disability and have no other source of income except the disability support pension.”
The matter first came before me on 15 August 2001 for directions. I made the following orders:
1. The applicant file any affidavits in support of his application for extension of time by 22 August 2001.
2. The respondent to file any affidavits in respect of the applicant’s application for extension of time by 3 September 2001.
3. The applicant’s application for extension of time be listed for hearing at 9:30 a.m. on 5 September 2001.
The date of 5 September was later vacated and there was substituted for it 7 September 2001.
When the matter came before me on 7 September 2001 the applicant had filed no additional affidavits.
In each of his applications Mr Saddi alleged discrimination contrary to the Disability Discrimination Act1992 (Cth) and sought an apology and unspecified compensation. Each application was incomplete in that it did not state all sections relevant to the applicant’s application as required by paragraph 11 of form 167, which is the standard form used in these matters. The application was also deficient in that although it contained an affidavit (being the one referred to in paragraph 4 hereof) it cannot be said to have been an affidavit in support of the substantive application. The only “evidence” which was before me in respect of the substantive application consisted of the papers provided by HREOC when it dismissed the complaint. Paragraph 12 of form 167 clearly indicates the need for such an affidavit.
In Lan Low v Australian Taxation Office [2000] FMCA 6, Federal Magistrate Driver dealt with a matter in which a similar application for an extension of time needed to be made. He stated in his judgment:
“The Human Rights and Equal Opportunity Commission Act does not make provision as to when an extension of time should be granted. In my view, the Court should apply general principles to the question and should have regard to the fact that the legislation in issue is remedial and that applicants pursuing action under the legislation are commonly, as in this case, unrepresented. In my view, the court should grant an extension of time where there is a reasonable explanation for the delay in filing the application for relief, where the balance of convenience as between the parties favours the granting of an extension of time and where the application discloses an arguable case.”
This paragraph of the learned Federal Magistrate’s Judgment was the subject of consideration by his Honour Marshall J sitting as the Full Bench on the appeal in the matter (Low v Commonwealth of Australia [2001] FCA 702). His Honour at para 11 said:
“Save for the reference to “balance of convenience” I agree with his Honour’s approach. I believe a more appropriate substitute for balance of convenience would be “in the interests of justice”. However, it should be acknowledged that the prima facie position is that applications should be lodged within time. Furthermore, as a pre-condition to granting an application for extension of time there should be some acceptable explanation for the delay.”
I proceeded to consider these four matters on the basis approved by Marshall J. The first three respondents were represented by Mr Lewis. The fourth respondent was represented by Mr Markus, and I heard argument from them separately. Their submissions contained important differences, so I will deal with each in turn.
In support of his application Mr Saddi told me that one month after his claim had been dismissed he started work in a warehouse and he worked there for a year. Details of this employment with Cumberland Industries Limited are contained in a letter from that company attached to Mr Saddi’s affidavit dated 30 May 2000. There does not appear to be any issue between the parties as to the existence of that employment, which was continued after the three-month probationary period. Mr Saddi received $90 per fortnight, that is $9 for each day worked. It would therefore appear that very shortly after Mr Saddi’s employment terminated he commenced the proceedings.
Mr Saddi also told me that he was currently going to TAFE and was doing a typing course four days a week which would finish in December. He said that when he finished the typing course he was going to ask all the respondents to help him again, and he really wanted an extension of time until after December 2001. He also referred me to a medical certificate dated 28 May 2001, which was contained in the papers and which indicated that he was fit for work.
Given Mr Saddi’s difficulties and disabilities, and the fact that he appeared in person, I am prepared in each case to give the papers filed and the submissions made the most favourable interpretation possible to him.
I am prepared to find that Mr Saddi is bringing his claims under s 5 of the Disability Discrimination Act.
5 (1) [Less favourable treatment] For the purposes of this Act, a person (“discriminator”) discriminates against another person (“aggrieved person”) on the ground of disability of the aggrieved person if, because of the aggrieved person’s disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.
I also find that in respect of the first three named respondents Mr Saddi would be proceeding under s 21 of the DDA.
21 (1) [Refusal, terms and conditions of service] It is unlawful for an employment agency to discriminate against a person on the ground of the person’s disability or a disability of any of the person’s associates:
(a)by refusing to provide the person with any of its services;
(b)in the terms or conditions on which it offers to provide the person with any of its services; or
(c)in the manner in which it provides the person with any of its services.
21 (2) [Inability to carry out work] This section does not render it unlawful for an employment agency to discriminate against a person of the ground of a person’s disability, if taking into account the person’s past training, qualifications and experience relevant to the work sought, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability, would be unable to carry out the inherent requirements of the work sought.
I also find that in respect of the fourth respondent, and to the extent necessary, the first three respondents, he is proceeding under s 24 of the DDA.
24 (1) [Refusal, terms or conditions, manner of provision] 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.
24 (2) [Where provision would impose unjustifiable hardship] This section does not render it unlawful to discriminate against a person on the ground of the person’s disability if the provision of the goods or services, or making facilities available, would impose unjustifiable hardship on the person who provides the goods or services or makes the facilities available.
I would be prepared, for the purposes of this application only, i.e. for the purposes of considering whether or not Mr Saddi has disclosed an arguable case, to find that as of 29 November 1999, Mr Saddi could, in accordance with the report of Dr Bishay:
“Work part-time simple light duties work”.
Mr Lewis, for the first three respondents, described their organisations as follows.
ACTIVE EMPLOYMENT, the respondent to matter SZ 411/01, is a competitive employment agency dealing with people with impairment who can work eight hours per week. The persons must fall within the Minister’s guidelines (being the guidelines required by s 5 of the Disability Services Act1986 (Cth). They do not deal with persons who have multiple disabilities.
BREAKTHROUGH PERSONNEL INC, the respondent to matter SZ 412/01, is contracted to the Department of Employment and the Department of Community Services. It was a competitive employment agency providing training and placement for persons with mild to moderate disabilities. It conducted assessments of applicants, but it did not deal with psychiatric disorders.
CARE EMPLOYMENT, the respondent to matter SZ 413/01, is funded by the Commonwealth of Australia and was also an employment agency. It did not deal with people whose primary disability was developmental. It also had geographical restrictions.
Mr Lewis argued that the admitted disabilities which Mr Saddi had took him outside the scope of any of these three agencies. He added that in addition Mr Saddi was outside the geographic limitation of Care Employment. This first was a finding which had been made by HREOC, and was the reason why the President considered that the complaints had been misconceived.
In the absence of any further evidence from Mr Saddi, I am obliged to find that nothing in the papers provides any sort of prima facie or arguable case of discrimination by any of these three respondents. Even if I accepted that Mr Saddi was a person who was able to be assisted by any of them, there is absolutely no evidence, or even a hint of evidence that the reason they did not assist him arose from the existence of his disabilities other than to the extent that they excluded him from each respondent’s criteria for assistance.
Cases may be proved either directly from the evidence or from inferences available from the evidence.
“The principle to be applied was stated by this Court in Bradshaw v McEwans Pty Limited (1951; unreported) in a passage cited in Luxton v Vines (1952) 85 CLR 352 at 358: “… The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts much be such as to exclude reasonable hypotheses consistent with innocence, while in the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture …” (TNT v Brooks (1979) 23 ALR 345 at 349 per Gibbs J).
In the instant cases against the first three respondents no evidence whatsoever has been filed which would allow me to draw any inference that the respondents acted in breach of the Disability Discrimination Act. I include in this definition of evidence the information provided by HREOC, although there may well be dispute as to whether or not it is properly admissible. It is not sufficient to establish the existence of a disability and the existence of disadvantage. The applicant must go further and, in an application such as this one, establish at least an arguable case of connection between the two. Mr Saddi has failed to do this.
The case against the COMMONWEALTH OF AUSTRALIA – SZ 414/01 – was originally commenced against the Commonwealth Rehabilitation Service, which is the former name of the provider of services under the Disability Services Act1986. The CRS is not an employment agency. Its job is to provide services which can get persons under a disability ready for employment.
Mr Markus, who appeared on behalf of the Commonwealth, filed an affidavit to which he annexed the guidelines prepared by the Minister pursuant to the requirement of s 5 of the Disability Services Act. He stated that the provision of services to the applicant was governed by s 20 (1) of the DSA, which relevantly states as follows:
20 (1) Subject to section 21, if the Secretary is satisfied that the provision of a rehabilitation program for a person in the target group would:
(a)result in the person having a substantially increased capacity to:
(i) obtain or retain paid employment (whether or not the employment would be unsupported); or
(ii) live independently; and
(b)comply with guidelines (if any) formulated under section 5 that relate to this section;
the Secretary may, on the Commonwealth’s behalf, approve the provision of the rehabilitation program for the person, together with any follow-up program that the Secretary considers necessary or desirable.
The Commonwealth accept that Mr Saddi is a person who falls within the “target group”. I was informed that if the case was to be heard it would be argued that Mr Saddi was assessed and found not to comply with the guidelines. This assessment was made by specialist officers. Mr Markus argues that there is nothing in what Mr Saddi has alleged which suggests or gives any hint of CRS having discriminated against him in respect of any of the provisions of the DDA under which he may have sued. Mr Saddi’s complaint is that the CRS has formed a view about his ability to obtain work if he had the benefit of the services that the CRS offers. But even if that assessment, made as it was by specialist personnel, was wrong, it does not mean that it was discriminatory.
Mr Markus has an additional point. He says that in any event decisions under s 20 of the DSA are reviewable under s 26 by the AAT. He says that in these circumstances HREOC could have terminated Mr Saddi’s application on the grounds that:
46 PH (1) (g) the President is satisfied that the subject matter of the complaint could be more effectively or conveniently dealt with by another statutory authority.
However, this was not a reason given by the President, and whilst, with a bit of hindsight, it may well have been better if Mr Saddi had availed himself of a merits review by the AAT, he did not do so and is now out of time. I do not think that the Commonwealth’s case is strengthened by virtue of this argument.
Mr Markus advised the Court that he would not be making any submissions concerning Mr Saddi’s delay in bringing these proceedings. His case stands or falls upon the existence of an arguable cause of action. There is nothing in the proceedings brought against the Commonwealth that is not in the other proceedings, and there is nothing in the position of the Commonwealth in relation to Mr Saddi that would cause me to come to a different conclusion as regards the Commonwealth than I have as regards the other three respondents.
I will therefore decline to exercise my discretion to allow Mr Saddi to continue with these proceedings out of time. I do not believe that he has been able to indicate any prima facie case that shows any prospect of success, and I believe justice would be best served by the proceedings being terminated at this stage.
Mr Markus indicated that if I was to make the orders which follow from the view I have just expressed the Commonwealth would not seek costs against Mr Saddi. On the other hand, Mr Lewis who acts for non-governmental respondents, felt obliged to request costs. In the Lan Low case to which I previously referred, the learned Federal Magistrate Driver considered the question of costs in this type of application, and in his final two paragraphs said:
“Mr Markus has submitted that costs should be awarded now. In my view the Court should be slow to award costs at an early stage of human rights proceedings so that applicants have a reasonable opportunity to get their case in order, to take advice and to assess their position. It would, in my view, be undesirable for costs to be awarded commonly at an early stage, as that would provide a deterrent to applicants taking action under what is remedial legislation in a jurisdiction where costs have historically not been an issue.
By disposing of the application now at this relatively early stage the respondent is able to avoid being put to the substantial expense of a full hearing and in those circumstances I do not think it necessary or appropriate to make any order as to costs. Therefore the orders I make are to refuse the application for an extension of time, and to dismiss the principal application for relief. I make no order as to costs.”
I would respectfully agree with the sentiments expressed by Federal Magistrate Driver and I would make the same orders, namely, I refuse the application for an extension of time, I dismiss the principal application for relief and I make no order as to costs.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 14 September 2001
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