Soreng v Victorian State Director of Public Housing
[2002] FMCA 124
•17 July 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SORENG v VICTORIAN STATE DIRECTOR OF PUBLIC HOUSING | [2002] FMCA 124 |
| HUMAN RIGHTS – Disability discrimination. PRACTICE & PROCEDURE – Summary dismissal of an application disclosing no reasonable cause of action. |
Disability Discrimination Act 1992 (Cth), s.25(2)
Federal Magistrates Court Rules 2001, 13.10
Human Rights & Equal Opportunity Commission Act 1986, ss.46PO, 46PH
General Steel Industries Inc v The Commissioner for Railways (NSW) & Ors (1964) 112 CLR 125 at 129
Webster & Anor v Lampard (1993) 177 CLR 598 at 682
Richardson v ACT Health & Community Care Service (2000) FC 654
Colyer v State of Victoria (1998) 3 VR 759
| Applicant: | RONALD JOHN SORENG |
| Respondent: | VICTORIAN STATE DIRECTOR OF PUBLIC HOUSING |
| File No: | MZ 213 of 2002 |
| Delivered on: | 17 July 2002 |
| Delivered at: | Melbourne |
| Hearing date & Orders made: | 18 June 2002 |
| Judgment of: | Hartnett FM |
REPRESENTATION
| Applicant in person | 69 W Street A, VIC |
| Solicitors for the Respondent: | Mr Ross Hodgens Russell Kennedy 10/469 Latrobe Street MELBOURNE VIC 3000 Telephone: 9609 1555 |
ORDERS
That pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules 2001 the proceedings as contained in the applicant’s application filed 15 January 2002 be dismissed.
There be no order as to costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 213 of 2002
| RONALD JOHN SORENG |
Applicant
And
| VICTORIAN STATE DIRECTOR OF PUBLIC HOUSING |
Respondent
REASONS FOR JUDGMENT
Transfer
The proceedings No. V26 of 2002 in the Federal Court of Australia, Victorian Registry, were transferred to the Federal Magistrates Court by order of Justice Merkel of 1 March 2002.
Application
On 15 January 2002 the applicant filed an application returnable on the 1st March 2002. An affidavit in support of that application was filed on the 15th January 2002 together with a document headed “Statement Within the Australian Disability Discrimination Act” signed by the applicant and dated 14 August 2001.
By order of Justice Merkel of 1 March 2002, the respondent was to file on or before 8 March 2002 any re quest for further and better particulars of the applicant’s claim. The applicant was to then provide the particulars requested on or before 22 March 2002.
On 7 March 2002 the respondent filed a request for further and better particulars of the complaint. That was responded to by the applicant by two documents, the earlier filed 5 March 2002 and dated 2 March 2002 being correspondence to the State Director, Victorian Department of Public Housing, but headed “Further and Better Particulars”. The second document filed 19 March 2002 is headed “Further and Better Particulars” and both these documents were relied upon by the applicant. Also filed by the applicant on 19 March 2002 and relied upon is what I shall describe as a bundle of documents being Terms of Agreement, handwritten and dated 22 August 2000 between the respondent and applicant; a letter to Mrs Margaret Mann of the Department of Human Services dated 10 August 2000 from Dr Raymond Young; a letter dated 28 October 1999 to the President of the Human Rights & Equal Opportunity Commission from Dr Young; letter dated 24/10/1997 from Dr Young “To Whom It May Concern”; an occupational therapy report dated 29 August 2001 from the Murrindindi Community Health Service Inc. – author Lea Fitzgerald, an occupational therapist; a further occupational therapy report by Lea Fitzgerald dated 23/6/2000; and letter dated 15 May 2000 from Mark Quittner Physiotherapy Services concerning the applicant’s housing arrangements.
On 17 April 2002 the matter came before me and the parties were ordered to attend upon a Registrar of this Court for mediation which subsequently took place before Registrar Connard on 14 June 2002. The matter did not resolve. The application was listed for final hearing on 16 July 2002 and various procedural orders were made. The respondent informed the Court of its intention to file a strike-out application. That application was filed and fixed for hearing on
18 June 2002 at 10.00 am. before me.
By application filed 19 April 2002, the respondent seeks that the complaint in application V26/02 (now numbered [2002] FMCA 124) be stayed or dismissed generally pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001 on the basis that no reasonable cause of action is disclosed. In support of that application, the respondent relies upon an affidavit sworn 6 June 2002 (and filed 13 June) by Mary Reid, together with submissions and supplementary submissions filed 6 and 7 June 2002 respectively. With the affidavit of Mary Reid were filed Exhibits MR1 to MR11 inclusive.
In response to that application, Mr Soreng filed:
a)an affidavit sworn 17 May 2002;
b)an affidavit filed 28 May 2002 and sworn 2 May 2002 by Dr Raymond Young;
c)an affidavit filed 28 May 2002 and sworn 13 May 2002 by Mr Mark Quittner;
d)an affidavit filed 18 June 2002 and sworn 11 June 2002 by Ms Edith Kacer;
e)a document headed “Preliminary Submission” dated 27 May 2002;
f)
a document headed “Submission Regarding Application” dated
8 June 2002; and
g)a document headed “Submission Regarding Pecuniary Costs to Overcome Hardship Endured” dated 6 June 2002.
The matter proceeded by way of reliance upon documents filed and submissions from the Bar table.
The parties agreed that earlier proceedings had ensued between them, being Proceedings No. V286 of 2000 in the Federal Court of Australia, Victorian District Registry. Those proceedings were concluded on the 22nd August 2000 at a mediation with terms of settlement being entered into. Those terms of settlement required the execution of a formal set of terms which contained a release. The applicant, Mr Soreng, refused to sign the formal terms but notwithstanding that, the respondent attended to those of the works required to be performed in relation to the provision by it of accommodation to the applicant. These works were as envisaged in the terms of settlement. Subsequent to those proceedings, the applicant has demanded further modifications to the unit in which he resides, which the respondent claimed were works outside the ambit of the earlier terms of settlement. The respondent as a consequence again obtained the services of an occupational therapist who produced a report on 29 August 2001. The respondent then sought to carry out further work as recommended by that report. The applicant concedes that he has denied the respondent entry to his home to carry out such works. He submitted that he is now willing for the respondent to arrange for works to be carried out to his home in accordance with the occupational therapist’s recommendations of 29 August 2001. The respondent has always been willing to carry out these additional works, and remains so.
History
Mr Soreng applied for and was granted a movable unit to be located at the rear of his mother’s property at 69 Webster Street, Alexandra in 1997. Since that time, Mr Soreng has made many requests of the respondent, the applicant in the strike-out proceedings, for disabled modifications to be made to his unit. On each occasion Mr Soreng has been advised that to carry out modifications to his unit, he is required to supply a report from an occupational therapist supporting the modifications. He has not at any time supplied such a report. Such reports have been obtained by the respondent voluntarily and at the cost of the respondent.
The earlier referred to terms of settlement provided that the parties were to execute formal terms and that the respondent would modify the applicant’s unit in the manner recommended by the occupational therapist in the August 2000 report.
On 28 September 2000 the applicant refused to sign the terms of settlement until his mother was reimbursed for wheelchair access modifications. Such modifications were undertaken without the consent of the respondent and in breach of the hiring agreement between Edith Kacer, the applicant’s mother and the applicant as the occupant and the respondent as the director (see paragraph 14 of the hiring agreement).
By letter dated 9 August 2001 addressed to the applicant, the respondent again stated its intent to complete the works, the subject of the terms of settlement and advised that it had requested an occupational therapist’s report as to further modifications required by the applicant. The applicant was again alerted to the need to have any works proposed by him approved by an occupational therapist. Based on the further request for modification by the applicant, the respondent commissioned another report which is the report dated 29 August 2001 and Exhibit MR9 to the affidavit of Mary Reid. Those further works were approved by the respondent and on 7 September 2001, a Mr Bastan of the respondent notified the applicant that he desired to obtain access to the unit for the purposes of inspection to forward the carrying out of the proposed works. The applicant agrees that he has not, to the present time, allowed the respondent access to his unit to carry out any further works as recommended in the occupational therapist’s report of August 2001. As contained in Exhibit MR1 to the affidavit of Mary Reid, the applicant denied the respondent access to his premises “until the Federal Court mediation is resolved.”
I adopt as an accurate description of the factual background those matters deposed to by Ms Reid in her affidavit.
The strike-out application
The respondent makes application to summarily dismiss the applicant’s application. The respondent asserts the application discloses no reasonable cause of action. The power of the Court derives from Rule 13.10 of the Federal Magistrates Court Rules.
I am mindful that the case must be very clear to justify the summary intervention of this Court to prevent the applicant from submitting his case for determination in the appointed manner by the Court. The test to be applied has been variously expressed as referred to by Barwick CJ in his judgment in General Steel Industries Inc v The Commissioner for Railways NSW (1964) 112 CLR 125 at 129:
“… so obviously untenable that it cannot possibly succeed”;
“… manifestly groundless”;
“… so manifestly faulty that it does not admit an argument”;
“… discloses a case which the Court is satisfied cannot succeed”;
“… under no possibility can there be good cause of action”.
The applicant alleges that the respondent has, in breach of s.25(2)(a) and (d)(ii) of the Disability Discrimination Act 1992 (Cth) directly (s.5) and indirectly (s.6) discriminated against the applicant on the ground of disability in the provision of services and/or accommodation. In further and better particulars dated 2 March 2002 and 8 March 2002 the applicant particularises the discrimination alleged against the respondent by reference to perceived deficits in provision to him of suitable accommodation.
The respondent also asserts that this Court is empowered to determine an application alleging unlawful discrimination only if the unlawful discrimination alleged in the application is the same as (or the same in substance as) the unlawful discrimination which is the subject of a terminated complaint before the Human Rights and Equal Opportunity Commission [Human Rights & Equal Opportunity Act 1986 s.46PO(3).] It can of course also arise if the alleged unlawful discrimination arises out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint [see s.46PO(3)(b)].
Section 46PO of the Human Rights & Equal Opportunity Commission Act 1986 provides that if a complaint has been terminated by the President under s.46PH, 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 the respondent to the terminated complaint. The time limit for that application is set out in s.46PO(2).
The application before me is in substance and fact an allegation that the respondent has failed to honour the terms of settlement dated 22 August 2000 in proceedings numbered V286 of 2000 in the Federal Court of Australia. Further, that the respondent has not carried out those works recommended in the occupational therapist’s report of 29 August 2001. The respondent submits that this Court is without jurisdiction to entertain the current application. That submission is based on the difference between the complaint referred by HREOC to the Federal Court and the complaint in the proceedings before this Court. I accept that submission. The substance of the complaint referred by HREOC on the earlier occasion was an alleged failure by the respondent to modify the applicant’s residential unit in the period up to at latest 26 November 1998.
Even if the above were not so and the applicant could have convinced me that this Court indeed had jurisdiction, I find that the application filed by the applicant does disclose no reasonable cause of action for the following reasons:
a)It is clear that the issue to be considered by the Court in any application for summary judgment is not whether the applicant would probably succeed in his action, but whether the material before the Court is such that the action should not be permitted to go to trial in the ordinary way because it is apparent that it must fail (see the decision of the High Court in Webster v Lampard (1993) 177 CLR 598 at 682).
b)I have considered the possibility that the applicant as an unrepresented litigant could be assisted by amendment of his application to get it into an appropriate form whilst remaining mindful of the rights of the respondent and the unnecessary expenditure of public and private resources. I have concluded however that there is nothing in the material on which the applicant relies which could support a claim of disability discrimination.
c)The material filed by the applicant discloses that the respondent provided him with additional modification following the entering into of the terms of settlement and indeed has gone to great lengths to accommodate his further requests. There is nothing in the material before me which discloses any causal nexus to the alleged acts of discrimination and the applicant’s disability, nor that the applicant is part of a particular group of nominated persons wherein apparently neutral conditions or requirements in fact disadvantage him as a member of that particular group.
d)The respondent submits that even though the applicant may hold a firm belief that he has been discriminated against, this belief is not supported by the evidence of what action has been taken by the respondent and therefore his claim of discrimination is untenable and incapable of success. After hearing the parties and reviewing all the material before me, I accept that submission.
e)I think that it is in the interests of the parties and the public that no further time is spent on these proceedings and I note that the respondent does not seek the applicant pay the respondent’s costs of the proceedings.
Finally, the respondent relies upon s.45 of the Disability Discrimination Act 1992 (Cth) which is in Part II of the Act, being the part in which s.25 is also found.
Section 45 of the Act is as follows:
“45 —
This part does not render it unlawful to do an act which is reasonably intended to:
(a)irrelevant;
(b)afford persons who have a disability or a particular disability, goods or access to facilities, services or opportunities to meet their special needs in relation to:
(i)employment, education, accommodation, clubs or sport; and
(ii)the provision of goods, services, facilities or land; or
(iii)the making available of facilities; or
(iv)irrelevant; or
(v)the capacity to live independently; or
(c)afford persons who have a disability or a particular disability, grants, benefits or programs whether direct or indirect to meet their special needs in relation to:
(i)employment, education, accommodation, clubs or sport; and
(ii)the provision of goods, services, facilities or land; or
(iii)the making available of facilities; or
(iv)irrelevant; or
(v)the capacity to live independently.”
The respondent’s submission is, which I accept, that s.27 of the ACT Discrimination Act 1991 bears in essence the same meaning as s.45 of the Disability Discrimination Act 1992. Section 27 was considered by the Full Court of the Federal Court in Richardson v The ACT Health & Community Care Service and Australian Capital Territory (2000) FC 654. In that case there appears the following passage from the majority judgment of Heerey and Finkelstein JJ:
“To determine whether discriminatory conduct is rendered unlawful by the application of section 27, the act of discrimination must be for a permitted purpose. That is, the conduct which section 27 protects is not discrimination that has the effect of achieving equality, but discrimination which is intended to have that effect. The word ‘purpose’ refers to the actual intention of the decision maker or actor. The decision maker’s intention is a matter to be established by reference to the facts, including reference to the circumstances from which inferences may be drawn as to the state of mind of the decision maker … To determine whether the decision maker holds the requisite state of mind, it will be permissible to enquire whether the conduct in question was capable of achieving equal opportunity – section 27(a) or meeting special needs – section 27(b). That enquiry may be necessary for the purpose of establishing that the claimed intention is one that is likely to have been held by the decision maker. It is not, however, to substitute for an enquiry into the subject state of mind of the decision maker an objective criterion. It is merely one of the means by which a claimed subjective intention can be established, in cases where there may be doubt.”
The respondent submits that Richardson’s case supports the respondent’s submission that if the respondent intended to provide services to the applicant to achieve as far as possible equality for him, and if the respondent’s conduct was capable of meeting his special needs, then s.45 of the Disability Discrimination Act exempts that conduct from what may or may not have been unlawful discrimination (there being a denial that in any event the respondent has discriminated against the applicant and I finding that the respondent has not). I accept that submission and rely upon the affidavit of Mary Reid and the exhibits thereto which establish that the intention of the respondent in providing services to the applicant was to meet his social needs and the respondent’s conduct was both capable of meeting those needs and in fact did meet those needs.
The applicant complains that the services provided by the respondent do not meet his needs and expectations. That is not the point when considering s.45. The course of conduct by the respondent as evidenced by the affidavit of Mary Reid is consistent only with a non-colourable intention by the respondent to afford the applicant access to facilities and services to meet his special needs in relation to accommodation, the provision of goods, services, facilities and land and to enhance his capacity to live independently. I accept the respondent’s submission that this Court should follow the interpretation of Kenny JA (as she then was) in Colyer v The State of Victoria (1998) 3VR 759 which concludes that if a genuine and non-colourable intention can be discerned from the actions of the service provider in the position of the respondent, then it is not the point that the services so provided do not meet the expectations of the person to whom those services are provided, or are in fact, discriminatory and otherwise unlawful under the Act.”
Orders
(1)That pursuant to Rule 13.10 (a) of the Federal Magistrates Court Rules 2001 the proceedings as contained in the applicant’s application filed 15 January 2002 be dismissed.
(2)There be no order as to costs.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate:
Date:
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