FEDERAL COURT OF AUSTRALIA Hinton v Alpha Westmead Private Hospital [2016] FCAFC 107 Appeal from: Hinton v Alpha Westmead Private Hospital Pty Ltd [2016] FCCA 270 File number(s): NSD 324 of 2016 Judge(s): COLLIER, JAGOT AND PERRY JJ Date of judgment: 22 August 2016 Catchwords: PRACTICE AND PROCEDURE - Federal Circuit Court of Australia - disability discrimination – Federal Circuit Court summarily dismissed application at first directions hearing– whether primary judge erred in finding no reasonable prospect of success – whether denial of procedural fairness Legislation: Australian Human Rights Commission Act 1986 (Cth) s 46PO Disability Discrimination Act 1992 (Cth) ss 3, 4, 5, 7, 11, 24, 29A, 123 Federal Circuit Court of Australia Act 1999 (Cth) s 17A Federal Circuit Court Rules 2001 (Cth) r 13.10 Legal Profession Uniform Law Application Act 2014 (NSW) sch 2, cl 4 Cases cited: Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 Hinton v Alpha Westmead Private Hospital Pty Ltd [2016] FCCA 270 Shrestha v Migration Review Tribunal [2015] FCAFC 87; (2015) 229 FCR 301 Waters v Public Transport Corporation (1991) 173 CLR 349 Date of hearing: Determined on the papers Date of last submissions: 7 July 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 26 Counsel for the Appellant: Ms K M Nomchong SC and Ms K Edwards Solicitor for the Appellant: Public Interest Advocacy Centre Counsel for the Respondent: The Respondent filed a submitting appearance ORDERS NSD 324 of 2016 BETWEEN: KATE JOYNTON-SMITH HINTON Appellant AND: ALPHA WESTMEAD PRIVATE HOSPITAL PTY LIMITED ACN 083 874 597 Respondent JUDGES: COLLIER, JAGOT AND PERRY JJ DATE OF ORDER: 22 AUGUST 2016 THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The order of the Federal Circuit Court of Australia dismissing the application under s 17A of the Federal Circuit Court of Australia Act 1999 (Cth) be set aside. 3. The application be remitted to a judge of the Federal Circuit Court of Australia, other than the primary judge, for determination according to law. 4. Each party pay their own costs of the application for leave to appeal and the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT THE COURT: 1. INTRODUCTION 1 This appeal must be allowed. The order made by the primary judge on 11 February 2016 dismissing the application under s 17A of the Federal Circuit Court of Australia Act 1999 (Cth) (the FCCA Act) must be set aside. The matter must also be remitted to a judge of the Federal Circuit Court other than the primary judge for determination according to law. Remittal on this condition is necessary because the course of the hearing before, and the reasons of the primary judge, would give rise to an apprehension of bias on his Honour's part in the mind of the reasonable observer. 2. BACKGROUND 2.1 The application in the Federal Circuit Court 2 Following a complaint to the Australian Human Rights Commission (the AHRC) which the AHRC terminated in September 2015, the appellant filed an application in the Federal Circuit Court on 20 November 2015. The appellant sought a declaration and orders against the respondent, a private hospital, for alleged unlawful discrimination under s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act). The appellant alleged that the respondent had discriminated against her as an associate of a person with a disability, being her husband, in contravention of various provisions of the Disability Discrimination Act 1992 (Cth) (the DD Act). The respondent, it was alleged, had refused to provide sign language interpreting services to the appellant's husband, who is deaf, in respect of the scheduled birth of the child of the appellant and her husband at the hospital. 2.2 The first directions hearing in the Federal Circuit Court on 11 February 2016 at 9.30am 3 The application came before the primary judge for the first directions on 11 February 2016 at 9.30am. Counsel for the appellant appeared and noted that he was also mentioning the appearance of the respondent and wished to hand up agreed short minutes of order. The primary judge then asked how there could be discrimination within the meaning of the DD Act. In this interaction, which lasted from 9.33am to 9.37am, the primary judge said that the claim "seems to me to be on its face patently something that's inarguable". Otherwise, it would mean that "everywhere that the applicant and her husband went, services in the nature of translation had to be provided". His Honour also said, in response to counsel's submission that the claim was arguable, that "there's no suggestion that the applicant's husband was asking for any services", and that he was concerned that "on the face of this, this is just an abuse of process" as there "doesn't seem to be any arguable case of discrimination or associated discrimination". Counsel for the appellant then asked that "in fairness" the matter be listed at a time when the appellant herself could be present. The primary judge adjourned the matter to 2.15pm on the same day to hear "whether or not it's an abuse of process and should be struck out". 2.3 The hearing on 11 February 2016 at 2.15pm to determine whether the application should be struck out on the primary judge's own motion 4 At 2.16pm, senior counsel appeared for the appellant, leading the counsel who had appeared at 9.30am. The primary judge informed senior counsel that there were two reasons he considered the claim an abuse of process – first, he could "not see how" the claim could "possibly" fall within the DD Act and, second, "it appears to be nothing more than a trifle". Senior counsel handed up written submissions. The written submissions noted the serious consequences of any decision to strike out and summarily dismiss the proceedings, and the related principle that such a course required exceptional caution and a high degree of confidence that the claim could not be sustained. Further, it was contended that if the proceedings were summarily dismissed, the appellant would be denied procedural fairness as only five hours' notice of the proposed strike out had been given, which was insufficient to prepare any full response. Senior counsel also suggested that, in any event, the claim was not hopeless. The complaint to the AHRC was by the appellant and her husband, and he could be joined as a party. She was an associate of her husband, who had a disability. Interpreter services had been denied. In these circumstances, s 7 of the DD Act provides, in effect, that the DD Act applies to the appellant as it applies to her husband. The relevant services were "birthing and maternity services", which included facilitating the appellant and her husband being present for the delivery, and to enable communication between staff and the appellant's husband for that purpose, particularly in the event of any complication which meant that the appellant was unable to provide consent to any procedure (and that her husband's consent might be needed, requiring communication with him). 5 In further exchanges between senior counsel and the primary judge, the primary judge asked "[h]ow under the legislation could this possibly succeed?" When senior counsel raised a lack of procedural fairness, the primary judge answered "I'm here to hear you", and asked again how the claim could succeed. Senior counsel made further submissions directed to the requirements of procedural fairness having been denied and noted that the short minutes of order sought a two week adjournment because there were ongoing discussions between the parties which were progressing "very successfully" but that, if the primary judge was determined to proceed with his own motion to strike out the proceedings, the husband, a complainant, could be joined to the proceedings and, in any event, both the appellant and her husband were accessing services. The husband had a right to be present at the birth and to be given information in a way he could understand (subsequently described as services so he could engage in decision-making about the birth of his child). In accordance with s 5(2) of the DD Act, the respondent had not made reasonable adjustments (the provision of an Auslan interpreter, Auslan being a reference to the form of sign language used in Australia), the effect of which was to treat the appellant and her husband less favourably than another person without the disability. 6 His Honour, in response, repeated the proposition that this argument would mean that every time the appellant sought a service anywhere, her husband would have to be provided with an interpreter. Senior counsel answered that this was not the case, given that the services being provided were medical services which included information in relation to the birth in contrast, for example, to the appellant "buying a bag of chips and her husband just happened to be standing next to her". His Honour then asked what medical services the husband was receiving. Senior counsel answered that the services were more than medical treatment of the appellant, as her husband was her next of kin and he would be required to give instructions if the appellant could not. The services were therefore to both the appellant and her husband. Senior counsel again noted that the context was not comparable to one in which services were provided only to the appellant, such as the appellant buying a bag of chips. His Honour responded "[w]ell, why isn't this case about a bag of chips?" and said again that the husband was not receiving any services. Senior counsel returned to procedural fairness, observing that they were running the case "on the hop", having been given five hours' notice, in circumstances where the primary judge had "not yet had the opportunity to understand the nature of the case in a fully pleaded matter". The primary judge noted that lawyers must be satisfied that proceedings have reasonable prospects of success before commencing, and asserted that this "is an abuse of process on its face", "a trifle", and "nothing more than a try-on", with the consequence if successful, that "anywhere she goes with her husband, any entity, has to provide her with an Auslan interpreter" which was "rubbish". In response to the proposition that the service to the husband was to enable him to participate, and engage, in decision-making about the birth of the child, the primary judge responded "what, by telling his wife 'Don't have a child now'", and again asking "what is it that occurred that gives rise to this being any more than involving a packet of chips?" and "why isn't this a trifle?". Senior counsel responded that the time a decision must be made about interpreter services is before the birth; it would be too late to try to do so during the birth if, for example, the appellant was unable to consent to a procedure and her husband had to do so on her behalf or on behalf of the child. 2.4 The ex tempore judgment summarily dismissing the application 7 The primary judge delivered judgment ex tempore. In these reasons (Hinton v Alpha Westmead Private Hospital Pty Ltd [2016] FCCA 270), the primary judge referred to s 17A of the FCCA Act (which enables summary judgment in s 17A(2)(b), if the Court is satisfied that the party has no reasonable prospect of successfully prosecuting the proceeding), the objects of the Federal Circuit Court Rules 2001 (Cth), and r 13.10 of those Rules, which enables summary dismissal if the Court is satisfied that there is no reasonable prospect of successfully prosecuting the proceeding. The primary judge continued: (1) "It is manifest from the complaint that the applicant's husband was not the recipient of maternity services and was not the patient at the respondent private hospital. The respondent private hospital was not providing any services to the applicant's husband" (at [5]). (2) "The complaint did not identify any conduct on its face disclosing any arguable contravention of the DD Act" (at [6]) (3) "…the joinder of the husband would not cure the want of an arguable issue" (at [9]). (4) "Nothing said by senior counsel identified any arguable basis upon which there could be said to be some allegation of unlawful disability discrimination arising from the complaint on behalf of the husband if he was allowed to be joined" (at [10]). (5) "…the applicant in due course attended upon a public hospital for the birth of her child. At the public hospital arrangements were made by the hospital, at its own cost, for the attendance of an Auslan interpreter during the birth. It is difficult to understand, in those circumstances, why the applicant has brought these proceedings against the respondent. On the face of the proceedings, they appear to be nothing more than a trifle…" (at [11]). (6) "The application arising from the complaint in this case is a trifle. It is oppressive and vexatious to pursue a trifle" (at [12]). (7) "The applicant's demand for free Auslan interpreting services during her child's birth from the respondent, despite being informed that she could bring along another third party to communicate with her husband or at her own cost bring along an interpreter, is at best a misplaced belief of entitlement that does not give rise to any arguable case of unlawful discrimination" (at [14]). (8) "The respondent provides important medical services and should not be vexed with a baseless trifle complaint of unlawful disability discrimination. None of the circumstances raised in the present complaint the subject of this application rise above a mere trifle, the pursuit of which is vexatious and as such an abuse of process. The Court's jurisdiction is not to be invoked for trifles as that is vexatious and an abuse of process" (at [15]). 8 Subsequently, his Honour said this: 20. The submissions maintained that the applicant's case was founded upon being an associate who had been the subject of unlawful disability discrimination. There is no fact in the complaint or able to be derived from the complaint that the applicant was discriminated against by the respondent because her husband was hearing impaired. The respondent simply was not offering a free interpretation service to the applicant's husband. 21. The applicant's submissions contended that the respondent provided a service to both the applicant and her husband that could be described as birthing and maternity services. There is no fact in the complaint or derivable from the complaint that any services were being provided by the respondent to the husband. It was submitted that during delivery the husband being in attendance would need to communicate between the staff of the respondent and both the applicant and her husband particularly if here was a complication and the applicant was not able to provide informed consent (alleged communication service). The facts of the complaint do not support any such alleged communication service and the alleged communication service could not be said to arise out of the facts in the complaint. On no view does the complaint support the existence of any services being provided to the respondent and there were no circumstances of the kind hypothetically advanced of complications at the time of the alleged unlawful disability discrimination in the complaint. The hypothetical circumstances alleged are not capable of being unlawful disability discrimination by the respondent. … 29. The applicant submitted that complications might arise in the course of a birth, as a result of which it was necessary for the applicant to have an ability to communicate with her husband. The consequence of the applicant's argument would be that, anywhere that the applicant and her husband went, a service provider would have to provide an interpreter. That cannot be and is not the proper construction of the legislation. This is a case where it is crystal clear that the application founded upon the complaint to the Australian Human Rights Commission is doomed to failure. 9 His Honour also said at [31]: The proposed joinder of the husband would not cure the absence of any arguable unlawful disability discrimination or cure the abuse of process. Further the joinder would require an extension of the 60 days under s.46PO(2) of the AHRC Act that expired on 21 November 2015. The interests of the administration of justice would not support a joinder in this case even if the delay was the subject of adequate explanation. This is because there would still be no arguable case of unlawful disability discrimination and because the proceedings remain an abuse of process over a trifle. 10 Insofar as the submissions that the primary judge's actions would deny the appellant procedural fairness, the primary judge said at [17]: There has been no denial of procedural fairness as the applicant has been given a reasonable opportunity to identify whether there is an arguable case and whether the proceedings are an abuse of process. I have taken into account the principles of procedural fairness and reasonable opportunity to be heard before a mind capable of persuasion as identified in the Full Court in Shrestha v Minister for Immigration [2015] FCAFC 87; (2015) 229 FCR 301 at [37] - [51] and the further reference by Gageler J in Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38 at [186]. The applicant was represented by highly competent counsel, instructed by an experienced solicitor who initiated these proceedings and should have been in position to support the invocation of this Court's jurisdiction in respect of an arguable cause of action on the first return date. The matter was adjourned for almost 5 hours and senior counsel was then able to appear with 7 pages of written submissions. Given the date of the filing of the application by the legal representative for the applicant, the well qualified legal representation of the applicant and the small scope of facts alleged in the complaint upon which the applicant to this Court was founded and confined, as well as the notice given on the front page of the application, I am satisfied that the short adjournment was a reasonable opportunity for the applicant to identify an arguable case under the DD Act. Senior counsel was alive to the concerns raised by the Court and had prepared submissions seeking to address those concerns. The Court read and considered those submissions. Senior counsel was also heard orally in the development of submissions to identify an arguable case of unlawful disability discrimination. 11 The primary judge also said at [18]: The applicant's submissions identified the seriousness of a strike out by the Court on its own motion and the clarity required as to the absence of a cause of action and the high degree of certainty required on the part of the Court as to the absence of a cause of action. It was submitted that the decision to strike out should not be taken lightly and that exceptional caution is required. It was submitted that in circumstances where pleadings and evidence had not been filed the strike out power should be used sparingly and only in a clear case. I have taken into account each of those principles in relation to the current application and I have taken into account the applicant's request to put on pleadings or evidence and to stand the matter over. For the reasons given in this judgment there would be no utility in doing so as the proceedings are doomed to failure and the alleged unlawful discrimination in the application cannot be expanded beyond the scope of the complaint as identified in s.46PO(3) of the AHRC Act. 12 His Honour concluded at [33]: Taking into account the warnings, caution and limited circumstances in which the Court's summary powers should be exercised, I am clearly satisfied that these proceedings are an abuse of process. I have taken into account the high degree of certainty required to conclude that this is an abuse of process and that the proceedings should not lightly be struck out. I am satisfied that this is an appropriate case in which to exercise the Court's summary powers. The application is dismissed under s.17A of the Federal Circuit Court of Australia Act 1999 (Cth) and r.13.10(c) of the Federal Circuit Court Rules 2001. 2.5 The proceedings on the appeal 13 On 6 May 2016, without any objection by the respondent, Jagot J granted the appellant an extension of time to seek leave to appeal and leave to appeal against his Honour's order dismissing the application. 14 On 19 May 2016, the respondent filed a submitting appearance other than in respect of the question of costs. 15 On 7 July 2016, the appellant filed written submissions in support of the appeal which we determined should be resolved on the papers given the submitting appearance by the respondent. 3. CONSIDERATION 16 First, we consider that his Honour's conclusions that the case was doomed and about a trifle and thus an abuse of process are wrong. Section 4(1) of the DD Act defines "services" inclusively. By s 24, it is unlawful for a person to discriminate against a person (or, by s 7, an associate of the person) in relation to the provision of a service. The service being provided and the person to whom it is provided are questions of fact. As McHugh J said in Waters v Public Transport Corporation (1991) 173 CLR 349 at 404 – 405, the service must be identified with precision before any finding of discrimination may be made. 17 The complaint to the AHRC expressly said that, although Mr Hinton was not the "patient", in a case where the appellant was an expectant mother arranging to use the respondent's services for birth, "it is unreasonable to exclude Mr Hinton as if he is somehow peripheral". Absent the opportunity to file any pleading to identify all of the material facts on which the appellant relied (an opportunity the primary judge denied the appellant, as discussed below), the application as filed was manifestly sufficient to raise an arguable case that the services in question included services by way of information to the husband so that he could support the appellant during the birth, confer with her as necessary, participate in the making of decisions about the treatment of the appellant and their child and, if necessary, give consent to treatment and procedures if the appellant was unable to do so. As the appellant's written submissions put it, communication with the husband was not a separate service but a part of the service being provided to the appellant. This proposition is plainly arguable. Further, and as the appellant's submissions also said, even if the service was being provided only to the appellant, it was equally plainly arguable that the associate provision (s 7 of the DD Act) was engaged and that the appellant was treated less favourably than a person whose associate did not have the disability in the same circumstances. 18 The primary judge's observation at [13] that the respondent was not "present" during the discussion with the Nursing Unit Manager who was said to have informed the appellant that no Auslan interpreter would be provided appears to overlook the potential for the respondent to be found vicariously liable for the conduct of its employee – another reasonably arguable proposition that, had she been given the opportunity, could have been articulated in a pleading for the appellant. It also overlooks the potential application of s 123 of the DD Act which provides that any "conduct engaged in on behalf of a body corporate by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority is taken, for the purposes of this Act, to have been engaged in also by the body corporate unless the body corporate establishes that the body corporate took reasonable precautions and exercised due diligence to avoid the conduct" (s 123(2)). Again, it appears reasonably arguable on the face of the complaint that s 123(2) might be engaged. 19 Despite the primary judge's repeated observations to the contrary, the appellant's case does not mean that, for every service sought by the appellant, an interpreter would have to be provided for the appellant's husband. It is obvious that the claim was fact dependent. The primary judge also seems to have overlooked ss 11 and 29A of the DD Act which concern unjustifiable hardship. In short, it is not unlawful discrimination in respect of the provision of a service if avoiding the discrimination would impose an unjustifiable hardship on the discriminator. No such suggestion had been made by the respondent because it had not been required to respond to a pleading by the appellant and, as noted, was not even present at the first directions hearing because it had consented to a short adjournment so that settlement discussions could continue (an eminently sensible proposal). 20 Nor can it reasonably be said that the case was about a "trifle" merely because the appellant ultimately gave birth at another hospital which provided the appellant's husband with an Auslan interpreter. The appellant did not have her child at the hospital she had proposed because it would not provide an Auslan interpreter for her husband. That circumstance gives rise to a reasonably arguable case of unlawful discrimination under the DD Act, whether it be direct or indirect discrimination. The objects of the DD Act, in s 3, are to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of "the provision of goods, facilities, services and land". It is hardly a "trifle" (and still less, equivalent to buying a "bag of chips") for a woman not to be able to deliver her baby in the hospital of her choice, merely because the hospital refuses to provide her husband with the interpreter required to ensure he can participate in the birth in the same way that a woman with a partner who can hear would be able to participate. 21 Second, no reasonable view of the need to ensure quick, inexpensive and efficient justice could alter the inescapable fact that the appellant was denied procedural fairness by the primary judge. The fact that a legal representative (at least in New South Wales – see cl 4 of Sch 2 to the Legal Profession Uniform Law Application Act 2014 (NSW)) is not to commence proceedings without certifying that the proceedings have a reasonable prospect of success does not mean that a party to a legal proceeding may be denied a fair opportunity, after the commencement of the proceedings, to identify the factual and legal basis on which the proceedings depend. 22 In the present case, at the first directions hearing, without notice and in the absence of the respondent which had consented to the short adjournment sought, the primary judge of his own motion moved to summarily dismiss the proceedings on the basis that the proceedings were "doomed" and about a "trifle". As noted, we consider the primary judge was wrong on both counts. On any view, the factual and legal basis of the proceedings was by no means as straightforward as the primary judge assumed. This was not a case where it was fair to expect the appellant, by her counsel (whether senior or otherwise), to identify all of the material facts and legal principles on which the claims depended in just under five hours between 9.37am when the directions hearing was adjourned and 2.16pm when it re-commenced. This is not changed by the fact that the appellant's counsel managed to prepare a short written submission. The request to be permitted to prepare a statement of claim, given the factual and legal issues involved and the general terms in which the complaint was expressed, was one which, in the circumstances of this case, the primary judge could not fairly deny. Contrary to the primary judge's conclusion at [17], the circumstances of this case expose precisely the risks to the administration of justice identified by Gageler J in Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38 at [186] that: Justifications for procedural fairness are both instrumental and intrinsic. To deny a court the ability to act fairly is not only to risk unsound conclusions and to generate justified feelings of resentment in those to whom fairness is denied. The effects go further. Unfairness in the procedure of a court saps confidence in the judicial process and undermines the integrity of the court as an institution that exists for the administration of justice. 23 Further, the circumstances are of the kind which the Full Court of the Federal Court in Shrestha v Migration Review Tribunal [2015] FCAFC 87; (2015) 229 FCR 301 at [56] made the following observation, again by reference to Pompano at [186]: These observations by his Honour are particularly apposite to this appeal. Processes such as those adopted by the primary judge in this matter tend to have the undesirable effects of which Gageler J wrote. These circumstances, or ones similar to them, should not occur again. 24 Regrettably, happen again they have, as a result of which the order of the primary judge for summary dismissal cannot stand. 25 Third, and as indicated, while listing arrangements are ordinarily a matter for the court concerned, we consider that the order for remittal of this matter to the Federal Circuit Court for determination according to law must preclude the primary judge from hearing the matter. The test to be applied for apprehended bias, which is a basis for a judge being disqualified from hearing a matter, is whether a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to resolution of the question the judge is required to decide (Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6]). In the present case, the fair minded lay observer would identify from the strong conclusions expressed by the primary judge in the hearing and his reasons (for example, that the appellant's claim was the equivalent of a "bag of chips", was a "try on", was a "baseless trifle", was "doomed", depended on a proposition that was "rubbish", and was an obvious "abuse of process") that his Honour might be caused to decide the case on other than its merits. 4. COSTS 26 The final matter is costs. One consequence of the primary judge's attempt to achieve efficiency by an inappropriate means is that significant inefficiency has resulted, not only in terms of time but also in terms of costs. However, the parties agreed that there should be no orders for costs of the application for leave to appeal and of the appeal, and effect should be given to that agreement. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Collier, Jagot and Perry. Associate: Dated: 22 August 2016