“Y” v Australian Postal Corporation

[2005] FCA 1396

FEDERAL COURT OF AUSTRALIA

“Y” v Australian Postal Corporation [2005] FCA 1396

PRACTICE AND PROCEDURE – transfer to Federal Magistrates Court

Federal Magistrates Act 1999 (Cth) s 39

“Y” v AUSTRALIAN POSTAL CORPORATION

VID 1474 of 2005

“Y” v HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION and

AUSTRALIA POST

VG 21 of 1998

FINKELSTEIN J
29 SEPTEMBER 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1474 of 2005

BETWEEN:	“Y” Applicant
AND:	AUSTRALIAN POSTAL CORPORATION Respondent

JUDGE:	FINKELSTEIN J
DATE:	29 SEPTEMBER 2005
PLACE:	MELBOURNE

THE COURT ORDERS THAT:

1. The publication of the applicant’s name be forbidden.
2. The title to the proceeding and any documentation in the proceeding hereafter refer to the applicant as “Y”.
3. The application be transferred to the Federal Magistrates Court.

Note:  Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 21 of 1998

BETWEEN:	“Y” Applicant
AND:	HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION and AUSTRALIA POST Respondents

JUDGE:	FINKELSTEIN J
DATE:	29 SEPTEMBER 2005
PLACE:	MELBOURNE

THE COURT ORDERS THAT:

The complaint the subject of the decision of the Human Rights and Equal Opportunity Commission given on 23 July 1996 be referred to the Commission for further consideration.

Note:  Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1474 of 2004

BETWEEN:	“Y” Applicant
AND:	AUSTRALIAN POSTAL CORPORATION Respondent
VG 21 of 1998

AND BETWEEN:	“Y” Applicant
AND:	HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION and AUSTRALIA POST Respondents

JUDGE:	FINKELSTEIN J
DATE:	29 SEPTEMBER 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. Y, as he has been designated, is back in the Federal Court.  He is here in two separate proceedings.  One is a proceeding that has been transferred from the Federal Magistrates Court.  The other is a proceeding that had been commenced in the Federal Court which I thought, wrongly as it turns out, had been disposed of by final orders.

2. To understand what has given rise to this situation it is necessary to recount some history.  Y suffers from a disability.  The medical profession cannot agree on the precise nature of that disability, but it has been described by some (and disputed by others) as paranoid psychosis or as residual schizophrenia.  His disability notwithstanding, Y is an intelligent person.  He has a Bachelor of Arts degree from a well-known university and has completed other courses, at university and elsewhere. 

3. The immediate cause of the two proceedings is Y’s difficulty in obtaining employment. Many years ago Y applied to Australia Post for a job as a postal delivery officer (a postman) or as a mail officer. He was informed that he would never be employed by Australia Post. Y alleged that in making the decision that he never be employed by it, Australia Post discriminated against him contrary to s 15 of the Disability Discrimination Act 1992 (Cth). Broadly speaking, s 15(1) renders it unlawful for an employer to discriminate against a person on account of that person’s “disability” (as defined). It is common ground that Y suffers from a relevant disability.

4. Y took his complaint to the Human Rights and Equal Opportunity Commission. The Commission found that Australia Post had discriminated against Y but that this discrimination was not unlawful because, as provided by s 15(4), Y was unable to carry out the inherent requirements of the job he was seeking. Accordingly, Y’s complaint was dismissed.

5. Y applied to the Federal Court for review of the Commission’s decision pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth). I heard the application. Y was able to establish that the Commission had erred in law in arriving at its decision. This was for the reason that the Commission had adopted a construction of s 15 which was found to be erroneous by the High Court in a decision handed down subsequent to argument in Y’s case. The High Court decision is Purvis v State of New South Wales(Department of Education and Training) (2003) 217 CLR 92. My decision is Y v Human Rights & Equal Opportunity Commission [2004] FCA 184.

6. Following submissions from the parties, I made an order that:  “The decision of the Human Rights and Equal Opportunity Commission given on 23 July 1996 be set aside.”  As appears from the transcript, it was my intention that if Y wished to pursue the matter there should be a rehearing of his complaint.  I had been informed by counsel for the Commission that as a result of amendments to the Human Rights and Equal Opportunity Commission Act 1986 (Cth), the Commission could not conduct the rehearing. The effect of the amendments was to confer that jurisdiction on the Federal Magistrates Court and the Federal Court. In my reasons for making the order I said: “Since the hearing amendments have been made to the relevant legislation the effect of which is that an order setting aside the Commissioner’s decision results in the termination of the complaint. ‘Y’ can bring a fresh complaint in the Federal Magistrates Court (the preferable place) or the Federal Court (where it may be remitted to the Federal Magistrates Court).”

7. It turns out that for Y’s complaint to be heard again it was not sufficient for me merely to set aside the Commission’s decision. It is also necessary for the matter to be referred back to the Commission for further consideration. Only then will the combined effect of reg 4 of the Human Rights Legislation (Transitional) Regulations 2000 (Cth) and ss 46PH and 46PO of the HREOC Act permit Y to bring his complaint before the Federal Magistrates Court or the Federal Court.

8. While there is no formal application to rectify the position, it is obvious that I must repair the deficiency.  My object was to enable Y to have his complaint reheard.  To achieve that object I must add to the orders previously made an order that Y’s complaint be referred to the Commission for further consideration.  I will make that order to set the record straight. 

9. I now turn to the second proceeding.  This is the proceeding that was transferred by the Federal Magistrates Court to the Federal Court.  In the proceeding Y seeks a rehearing of his original complaint against Australia Post.  There is an affidavit sworn by Y in support of his application.  The affidavit sets out some of the background facts.  

10. In accordance with what seems to be the usual procedure in the Federal Magistrates Court, the application came on for a directions hearing on 13 October 2004.  I have a copy of the transcript of that hearing.  Y appeared on his own behalf.  Australia Post was represented by a solicitor.  What transpired at the hearing is very unfortunate.

11. In the first place it is evident that the magistrate had not read the decision of the Commission.  Nor had he read the reasons for allowing the review.  Not surprisingly then, the magistrate said that it was not clear to him what the case was about.  He mentioned the possibility of directing Y to file and serve a statement of facts and contentions setting out his claim.  He explained that this was so the respondent (Australia Post) would have reasonable notice “of what this particular case is going to be about”.  Interestingly, Australia Post had made no request for such assistance.  This is hardly surprising as Australia Post knew precisely the substance of Y’s complaint, having defended the allegation of discrimination both before the Commission and in the Federal Court.

12. The magistrate asked Y how long he would need to prepare a statement of facts and contentions.  Y did not respond directly.  He presumably had other things on his mind.  In particular, Y wanted to obtain an order that his name not appear in the proceedings or in the law list.  He had obtained such an order in the Federal Court proceeding.  He told the magistrate:  “I’m not happy about my name being used and defamation, imputing all sorts of mental illnesses that prevent me from working.  My name shouldn’t have been used in the court lists.”

13. Instead of dealing with Y’s application on its merits, the magistrate enquired:  “Would you like me to strike the matter out?”  Y asked what the magistrate meant.  The magistrate responded:  “If you don’t want the matter to appear in the court lists, then I’ll strike it out and that will bring an end to it and it won’t appear on the court lists again and that will bring an end to the case.”

14. This was an extraordinary response to Y’s application.  No doubt it was obvious to the magistrate that Y was concerned about the publication of his name and was seeking an order from the court along the lines of the order made in the Federal Court.  Y was certainly not suggesting that he wanted to bring the litigation to an end.  Y explained that he did not wish to have his application struck out and that he wanted it to proceed.  He said:  “You’ve totally misunderstood what I was trying to say.  Of course it needs to go ahead in anyone’s court.  I don’t know – I’ve got no – I don’t know any magistrate.  It can go on in anyone’s court, including yours, your Honour, if you’re not biased against me.”  The magistrate responded:  “It’s docketed to me, so sadly I’ve got it.”

15. Quite apart from the inappropriateness of this comment, it created problems for the magistrate, not the least of which was that it had the tendency to foster the belief that Y’s case would not be decided impartially.  At all events this is what Y thought.  He said:  “It hasn’t gone very well today.  You’ve shown a lot of bias.”

16. The magistrate’s response did not diffuse the tension.  He said:  “If you want to bring any application for me to not hear the matter because of alleged bias, then you can do that within 28 days.”  He then made the following orders:  “That the applicant file and serve a statement of facts and contentions within 28 days and the applicant bring any application to have [the magistrate] not hear the matter within 28 days.”

17. The magistrate then listed the matter for further hearing on 30 November 2004.  Y said that this was not a suitable date for him and asked whether the matter could be listed after 7 December.  The magistrate did not enquire why the date was unsuitable.  He simply refused the request. 

18. Thereafter, Y made application that the magistrate disqualify himself for bias and filed a written submission in support.  The submission also provided details of Y’s claim against Australia Post.  Australia Post filed submissions in response.  In those submissions Australia Post identified for the first time that I had failed to make an order remitting the matter to the Commission for reconsideration.  In its submissions Australia Post argued that in that circumstance Y was not entitled to commence his complaint.  Whether that is so following the order that I will make today, remains to be seen. 

19. At all events, when the matter came on for hearing the magistrate said that he first proposed to deal with Y’s bias application.  That application was refused.  In his reasons the magistrate said that nothing which had occurred at the previous hearing would “give rise to any indication of bias, nor any reasonable apprehension of bias by a reasonable observer”. 

20. After pronouncing his reasons, the magistrate then moved to other issues.  He referred to Y’s submissions and said:  “having read the material it is difficult to see what the basis of the claim is in terms of putting it in any normal orderly fashion and I have considered whether or not I ought to strike the matter out.”  It is apparent the magistrate had still not read the two decisions in which Y’s case had been explained in detail.  Nevertheless, the magistrate acknowledged that there might be material filed in the Federal Court proceeding which indicated that there was a case that deserved to be heard.  He said that his “provisional” view was that he ought to transfer the matter to the Federal Court “where it seems that that court has resources to more adequately accommodate [Y].”  The magistrate went on:  “I’m mindful of the fact that this court is a court that’s meant to be for relatively straightforward cases and to provide for a high volume of work and it seems to me that any progression of this matter is going to take an awfully long time and require a lot of … resources and it may be that it’s more appropriate that I simply transfer it now.” 

21. Y did not oppose the case being transferred to the Federal Court.  No doubt Y thought that the sooner he got out of the magistrate’s hands the better.  Counsel for Australia Post also accepted the proposal.  Accordingly, the magistrate made the order transferring the case to the Federal Court.

22. The power to make the transfer order is found in s 39 of the Federal Magistrates Act 1999 (Cth). That section relevantly provides:

    (1)If a proceeding is pending in the Federal Magistrates Court, the Federal Magistrates Court may, by order, transfer the proceeding from the Federal Magistrates Court to the Federal Court or the Family Court.

    (2)The Federal Magistrates Court may transfer a proceeding under this section:

    …

    (b) on its own initiative.

    (3)In deciding whether to transfer a proceeding to the Federal Court under subsection (1), the Federal Magistrates Court must have regard to:

    (a)  any Rules of Court made for the purposes of subsection 40(2); and

    (b)whether proceedings in respect of an associated matter are pending in the Federal Court; and

    (c)whether the resources of the Federal Magistrates Court are sufficient to hear and determine the proceeding; and

    (d)the interests of the administration of justice.

    It seems, from his reasons, that the magistrate had particular regard to s 39(3)(c).

23. Section 39 was enacted when the Federal Magistrates Court was established. It is an important provision. Among other things, it was designed to ensure that in its early stages the Federal Magistrates Court would not be inundated with more work than it could handle. At the time the Court had few magistrates and it was expected that it would receive a good deal of work, especially in the area of family law. Another purpose was to ensure that the Federal Magistrates Court did not deal with important or difficult cases that were best determined by a superior court of record.

24. Sometimes s 39 does not serve its various purposes. For example, on occasions the Federal Magistrates Court refuses to transfer cases that quite clearly should be heard in the Federal Court. Warner Music Australia Pty Ltd v Swiftel Communications Pty Ltd [2005] FMCA 627 is an example. On other occasions the Federal Magistrates Court transfers proceedings to the Federal Court that should remain in the Federal Magistrates Court. This case is a good example. The law to be applied in relation to the issues in the case has been settled. The factual issues are not complex. The case will take only two or three days to try. When all is said and done the case is typical of those cases heard in the Federal Magistrates Court. Indeed it was established to hear cases of this kind.

25. There are only two possible reasons why the magistrate transferred the case to the Federal Court.  One is that while the magistrate originally acknowledged that because the case had been docketed to him “so sadly [he’s] got it”, he found a way to get rid of it.  I am not, however, prepared to impute to the magistrate bad faith. 

26. The other explanation is that the magistrate misconstrued s 39. The precise construction which the magistrate placed on the provision is not clear for he gave few reasons for the transfer order. Whatever construction he placed on the section must have been erroneous because on no view did the section justify the order. Indeed, certain of the relevant factors to which regard may be had under rule 8.02 of the Federal Magistrates Court Rules 2001 were countervailing, namely whether the transferred proceeding is likely to be heard and determined at less cost and more convenience to the parties than if not transferred.

27. What I propose to do first is make an order pursuant to s 50 of the Federal Court of Australia Act 1976 (Cth) that publication of the applicant’s name in these proceedings be suppressed. I will also transfer the application back to the Federal Magistrates Court. In all the circumstances it is preferable that the application be heard by some other magistrate. If the Federal Magistrates Court refuses to deal with the application, Y’s remedy will be to apply to the Federal Court for mandamus.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.

Associate:

Dated:            29 September 2005

Applicant in person.
Solicitor for the Respondents:	Australian Government Solicitor
Date of Judgment:	29 September 2005