Sandor v Department of Communities, Child Safety and Disability Services
[2015] FCCA 2187
•14 August 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SANDOR v DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES | [2015] FCCA 2187 |
| Catchwords: PRACTICE AND PROCEDURE – Application to set aside orders dismissing proceedings for failure to appear – explanation for failure to appear – weak but arguable case that might result in different orders being made in the proceedings after a trial. |
| Legislation: Australian Human Rights Commission Act 1986, s.46PO Disability Discrimination Act 1992 Federal Circuit Court Rules 2001 rr.13.03C(1)(c), 16.05(2)(a) Racial Discrimination Act 1975, s.9(1) |
| Allesch v Maunz (2000) 203 CLR 172 Bropho v Western Australia [2008] FCAFC 100 King-Ansell v Police [1979] 2 NZLR 531 Macedonian Teachers’ Association of Victoria Inc v Human Rights & Equal Opportunity Commission (1998) 91 FCR 8 Mathews v State of Queensland (No.3) [2014] FCCA 1977 Miller v Wertheim [2002] FCAFC 156 MZZET v Minister for Immigration & Anor [2014] FCCA 214 |
| Applicant: | MIKLOS SANDOR |
| Respondent: | DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES |
| File Number: | BRG 1147 of 2014 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 25 May 2015 |
| Date of Last Submission: | 25 May 2015 |
| Delivered at: | Townsville |
| Delivered on: | 14 August 2015 |
REPRESENTATION
| The Applicant appeared on his own behalf |
| Counsel for the Respondent: | Mr Merrill |
| Solicitors for the Respondent: | Crown Law |
ORDERS
The orders made on 23 February, 2015 be vacated.
The application filed on 28 April 2015 be listed for directions at 9.30 am on 7 September 2015 in the Federal Circuit Court of Australia at Brisbane.
The costs of and incidental to this application be reserved to the next court date.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 1147 of 2014
| MIKLOS SANDOR |
Applicant
And
| DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES |
Respondent
REASONS FOR JUDGMENT
By his application in a case filed on 28 April 2015, the applicant seeks to have orders of this Court made on 23 February, 2015 set aside pursuant to r.16.05(2)(a) of the Federal Circuit Court Rules 2001. Those orders dismissed the applicant’s substantive application pursuant to FCCR 13.03C(1)(c) because he failed to appear and prosecute that application when the matter was first listed for directions before the Court.
The respondent opposes the application.
The applicant filed an affidavit in support of his application in a case, parts of which might be more accurately described as submissions. The applicant also made oral submissions at the hearing of this application on 25 May, 2015 which I will address below.
The respondent filed a response, a supporting affidavit and provided both written and oral submissions at the hearing.
Background
The substantive application is made pursuant to s.46PO of the Australian Human Rights Commission Act 1986 (Cth), which allows an applicant whose complaint in the Australian Human Rights Commission has been terminated in circumstances such as the present to bring an application to this Court. The application arises out of an allegation of unlawful discrimination made by the applicant against the Department of Communities, Child Safety and Disability Services. The allegation is made under the Racial Discrimination Act 1975 (Cth) and the Disability Discrimination Act 1992 (Cth). Mr Sandor alleges causes of action for racial discrimination and disability discrimination.
The allegation upon which Mr Sandor relies concerns his unsuccessful application with the respondent to become a foster carer. Evidence of his application to the respondent is attached to Mr Sandor’s substantive application in these proceedings and includes departmental correspondence with Mr Sandor and with others. Much of the same material is also annexed to the affidavit Mr Sandor filed in these proceedings in support of the application to have the order dismissing his proceedings set aside.
At paragraph 10 of his affidavit filed on 28 April, 2015 Mr Sandor swears that:
The Department assumed I am living with a mental disability. The assumption was expressed on 2 April 2012 when officers, from the Department Ms Richardson and Mr Hall, told me the decision of the department to discontinue my foster care application … In that meeting Ms Richardson told me the Department was notified by the Department of Communities Maroochydore Housing Service Centre I have mental issues. Documents, case notes from the meeting was not confirming what Ms Richardson said however email correspondence between Department workers confirms the assumption which was the foundation to discontinue my application …
(errors in original)
Mr Sandor has annexed notes of the relevant meeting to which he refers. The notes are presumably in the hand of Ms Richardson or Mr Hall, however that is not clear from the document. In any event, as the applicant indicates above, the notes do not refer to the issue of mental disability. They do, however, refer to an apparent claim by Mr Sandor on that occasion that the “Dept is racist”.
There is subsequent correspondence between the respondent’s officers that is helpful in this regard:
a)an email dated 1 April, 2010 from Ms Hill to Ms Chapman, which in its redacted form reads:
… concerned about … mental health – when asked why, their concerns were from … calling and stating that he was at the end of his tether and not getting responses by CSSC …
b)an email dated 31 January, 2012 annexed to Mr Sandor’s affidavit from a Ms Atkinson to a Ms Shillito and a Ms Richardson which states:
I think [the applicant] may have mental health issues by the way the notifications read.
c)an email dated 2 May, 2012 from Ms Richardson to Ms Shillito which summarises Ms Richardson’s account of the applicant’s history of dealings with the respondent as well as his attendance at the respondent’s offices on 2 April, 2012. This email is detailed and might be usefully summarised as follows:
·Mr Sandor made an enquiry with the respondent about becoming a foster carer on 10 November, 2011. His expression of interest was registered and he was sent an information pack. On 24 November, 2012 the applicant spoke to Ms Richardson and requested to attend an information session;
·Around this time, Ms Richardson ascertained that the applicant lived in a caravan park and was a parent. Ms Richardson became concerned about how this would affect Mr Sandor’s request to become a foster carer. She endeavoured to follow up with him about this issue but was unable to contact him;
·Mr Sandor was nevertheless invited to attend an information session. Mr Sandor also requested that he wished to proceed to a home visit as part of the screening process of becoming a foster carer;
·Around this time, Ms Shillito identified that the respondent had a history of “intakes” from Mr Sandor. He had presented four times between 2010 and 2011, on three occasions requesting assistance as a parent of his own child and on a fourth occasion requesting that his child be placed into foster care;
·Given that history, Ms Shillito formed the view that it was inappropriate to proceed with the home visit. Several phone calls were apparently then made to Mr Sandor but contact with him was unsuccessful.
Mr Sandor also swears, at paragraph 13 of his affidavit, that:
On 13 May 2010 at the Departments Maroochydore office I was told by Ms Chapman to go back to where you came from.
In support of this, a “child concern report” dated 13 May, 2010 under the hand of Ms Chapman, is annexed to Mr Sandor’s affidavit. The relevant portion of the report is as follows:
The notifier states that last time they spoke with the department the CSO suggested that the family return to Europe. The notifier stated that it was racist to suggest that. The CSO stated that they had suggested that an option for the family would be to go back to Europe where extended family resided for support and assistance. Notifier stated that the father’s family in Europe was not appropriate and that is why they came to this country and if the CSO had known that they would not have suggest it.
(errors in original)
Before the allegations of mental disability and racial discrimination proceeded to the Australian Human Rights Commission, Mr Sandor’s allegations were internally reviewed by the respondent at a number of levels. Mr Sandor attached copies of material pertaining to these reviews. The last and highest level internal review found that the issues raised by Mr Sandor were not substantiated.
Before the Australian Human Rights Commission, a delegate of the President of the Commission terminated the applicant’s complaint against the respondent pursuant to s.46PH(1)(i) of the Australian Human Rights Commission Act, on the basis that there was no reasonable prospect of the matter being settled by conciliation.
Consideration
The principles for setting aside orders pursuant to FCCR 16.05(2)(a) summarised by Judge Burchardt in MZZET v Minister for Immigration & Anor [2014] FCCA 214. His Honour referred to a discussion of the principles by the High Court in Allesch v Maunz (2000) 203 CLR 172 in forming his view that, for a successful application to set aside orders pursuant to FCCR 16.05(2)(a), there are two matters an applicant must address. First, the applicant’s failure to attend the hearing must be adequately explained. Second, the applicant must demonstrate that reopening the matter might reasonably produce a materially different result more favourable to the applicant. Similarly, I too applied these principles in Mathews v State of Queensland (No.3) [2014] FCCA 1977.
In his affidavit, Mr Sandor attempts to explain his absence at the hearing on 23 February, 2015. At paragraphs 3 and 4 he deposes that
3. I was not aware that a date had been set down for hearing of matter (P)BRG1147/2014 until I received a dismissal notice by mail from the Federal Circuit Court Australia dated 23 February 2015…
4. Prior to receiving that notice I did not know that I should set up an e-court account to find out the date of the hearing. I mistakenly thought that I would receive an email or letter telling me the date for the court hearing.
At the hearing on 25 May, 2015 I pressed Mr Sandor for some further explanation. He addressed the Court from the bar table. His explanation, however, was somewhat difficult to understand. Mr Sandor told me that he lodged his application electronically, as parties wishing to proceed in this court (other than in its family law jurisdiction) are now required to do. I asked him if he had received anything back from the electronic lodgement system. At first he stated that he may have received documents back, but was not advised about the hearing date. When further pressed, he said he received no documents in return upon filing his application, but that he received a receipt. I questioned him about how he had filed the present application in a case. He said that on this occasion he “logged on” and received service copies upon filing that application. This is consistent with the respondent having been served with the present application, whereas the respondent attests it was not served the substantive application in the first instance.
Apart from the reference to “logging on” when lodging the present application in a case, Mr Sandor made no further reference to the “e-court account” referred to in his affidavit. Finally, I asked Mr Sandor what action he took in response to not hearing back from the Court upon filing his substantive application. He admitted that he did nothing; he merely waited for the Court to contact him.
In the respondent’s written submissions on this point, it submits that Mr Sandor must have been given notice of the first court date, that he has not explained how he filed his substantive application and that the explanation for his non-appearance was not “reasonable in the circumstances”.
Neither party has placed evidence before me concerning the electronic lodgement process now used by the registry that provides such services to this Court in its jurisdictions other than under the Family Law Act 1975, the Child Support (Assessment) Act1989 and the Child Support (Registration and Collection) Act1988. Whilst Mr Sandor’s explanation for his failure to attend the hearing on 23 February, 2015 is curious, I cannot discount the possibility that Mr Sandor did not properly understand the use of the electronic lodgement system that he used to commence his proceedings. Further, I cannot discount the possibility that the “system” in some way failed to deliver to Mr Sandor service copies of his initiating application and notice of the date fixed for the first court date. The fact that he did not serve the respondent with his initiating application is consistent with either of those explanations.
In my opinion, he has satisfactorily explained his failure to appear on the first court date.
I now turn to consider the merits of Mr Sandor’s substantive application; namely, his allegations of discrimination on the grounds of mental disability and race.
Mr Sandor’s claim for discrimination on the ground of mental disability is based, it seems, on the respondent’s correspondence extracted above referring to the applicant’s “mental health”. While this evidence is scant, the respondent’s material is no better—there is no sworn evidence from any of the respondent’s officers who were involved in the relevant correspondence.
Similarly, there is no evidence that Mr Sandor in fact has a mental disability. However, a lack of the trait that is the subject of discrimination is not a bar to a successful claim. That is because s.4 of the Disability Discrimination Act defines “disability” to include “a disability that … is imputed to a person”.
Mr Sandor refers to ss.5 and 6 of the Disability Discrimination Act as the statutory basis for his claim. However, those sections do not in fact create prohibitions against discrimination. They are explanatory sections that operate in conjunction with the prohibitions set out on other sections of the Act, such as s.24 which prohibits discrimination in relation to the provision of goods, services and facilities.
As will become apparent below, it is difficult to assess the merits of Mr Sandor’s claim at a stage in the proceeding where there are neither finalised pleadings nor any affidavits of evidence in chief. There is a notable lack of sworn material from both sides regarding the claim for disability discrimination.
The applicant’s claim for racial discrimination refers to s.9 of the Racial Discrimination Act. The applicant claims that on 13 May, 2010 at the Department’s Maroochydore premises, Ms Chapman, an officer from the respondent said to him “go back to where you came from”. The applicant supports this allegation with the “child concern report” which I have outlined above. The respondent submits that this report does not in fact support the claim and that the evidence merely suggests that the officer asked him about moving to Europe so he could access the support of extended family that lived there. The suggestion was made in circumstances where Mr Sandor had come to the respondent looking for support.
Section 9(1) of the Racial Discrimination Act has several components:
a)An act involving a distinction, exclusion, restriction or preference. Mr Sandor argues that the phrase “go back to where you came from” involved a “distinction and exclusion”. Presumably, Mr Sandor would necessarily argue that the distinction here is between persons who were born in Australia and persons who were not. If it were proven that Ms Chapman said the aforementioned phrase to Mr Sandor, I am satisfied that an “act” within the meaning of this section may have occurred. The act, if found to have occurred, involved a distinction.
b)based on race, colour, descent or national or ethnic origin. The applicant does not distinguish his claim between these categories, presumably relying on all of them. However, there is no sworn evidence as to the applicant’s race, colour, descent, national, or ethnic origin. His application, at least, indicates that he migrated to Australia in 1988, becoming an Australian citizen in 1991. It also indicates that he speaks Hungarian and that his son was born in Hungary. I infer for the purposes of this application that the applicant’s national and ethnic origins are European (and possibly Hungarian). In any event, Courts tend to interpret the concepts of “race” and “ethnicity” broadly: see King-Ansell v Police [1979] 2 NZLR 531, cited with approval by the Full Federal Court in Miller v Wertheim [2002] FCAFC 156.
c)The words “based on”, however, require further scrutiny. Section 18 of the Racial Discrimination Act provides that where an act is done for more than one reason, and one of the reasons is “the race, colour, descent or national or ethnic origin of a person”, then it is taken to be done for that reason (even if it is not the dominant or substantial reason for doing the act). In Macedonian Teachers’ Association of Victoria Inc v Human Rights & Equal Opportunity Commission (1998) 91 FCR 8 Weinberg J considered the words “based on” in s.9(1) and concluded at [33] that the section requires “sufficient connection” (as distinct from a causal connection): “there must be a close relationship between the designated characteristic and the impugned conduct”. This approach was later approved by the Full Federal Court in Bropho v Western Australia [2008] FCAFC 100. With this in mind, the alleged phrase “go back to where you came from” involves a distinction (e.g. between people born in Australia and people born elsewhere) that is indeed closely connected to the applicant’s origin.
d)There are two reasons proposed by the parties for whatever Ms Chapman allegedly said to the applicant. On Mr Sandor’s case, Ms Chapman intended to make a distinction based on his origin or perhaps his ethnicity. On the respondent’s case, Ms Chapman was merely discussing whether the applicant had family overseas that might support him and his son. Given the operation of s.18 of the Racial Discrimination Act and the lack of affidavit material presently available, I am not satisfied that it is possible to make a finding in relation to this issue. This is a matter for trial.
e)which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life. Section 9(2) provides that reference to a human right or fundamental freedom “includes any right of a kind referred to in Article 5 of the Convention”. Article 5 includes at (e): (iii) the right to housing; and (iv) the right to … social services. Thus, a case might be made out that the effect of the preceding conduct was to deny Mr Sandor’s right to access social services.
As the above discussion of the issues indicates, there may be some merit to the applicant’s claims of discrimination. Yet the analysis also highlights the significant deficiencies that exist in Mr Sandor’s claims. In those circumstances, I conclude that Mr Sandor has demonstrated an arguable case that reopening the matter might reasonably produce a materially different result. Whilst I think that his arguable case is weak, it exists nonetheless.
I also take into account that Mr Sandor’s substantive application was dismissed on its first court date. If the applicant had attended, it is unlikely that the matter would have been dismissed, on its merits, at such a preliminary stage in the proceedings, particularly where there was no application for summary dismissal before me.
For those reasons, I make the orders set out at the commencement of these reasons.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 14 August, 2015
Associate:
Date: 14 August 2015
0
6
5