Catesby, David Raymond v Human Rights & Equal Opportunity Commission & Ors [1998] FCA 1245

FEDERAL COURT OF AUSTRALIA

ADMINISTRATIVE LAW – Administrative Decisions (Judicial Review) Act 1977 (Cth) – review of a decision of the President of the Human Rights and Equal Opportunity Commission dismissing a complaint under the Disability Discrimination Act 1992 (Cth) Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5 Disability Discrimination Act 1992 (Cth), ss 5, 24, 69, 71, 101

DAVID RAYMOND CATESBY v HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION & ORS

NG 379 of 1998 BRANSON J SYDNEY 2 OCTOBER 1998

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 379 of 1998

BETWEEN: DAVID RAYMOND CATESBY

Applicant

AND: HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

First Respondent

TELSTRA CORPORATION LTD

Second Respondent

COMMONWEALTH OMBUDSMAN

Third Respondent

COMMISSIONER, AUSTRALIAN FEDERAL POLICE

Fourth Respondent

JUDGE(S): BRANSON J

DATE OF ORDER: 2 October 1998

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 379 of 1998

BETWEEN: DAVID RAYMOND CATESBY

Applicant

AND: HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

First Respondent

TELSTRA CORPORATION LTD

Second Respondent

COMMONWEALTH OMBUDSMAN

Third Respondent

COMMISSIONER, AUSTRALIAN FEDERAL POLICE

Fourth Respondent

JUDGE(S): BRANSON J

DATE: 2 October 1998

PLACE: SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION By an amended application dated 4 August 1997 the applicant seeks review under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") of a decision of the President of Human Rights and Equal Opportunity Commission ("the President") of 16 April 1997 made pursuant to s 101 of the Disability Discrimination Act 1992 (Cth) ("the Act"). On 16 April 1997 the President dismissed a complaint under s 69 of the Act made by the applicant against the Australian Federal Police ("AFP"), Telstra and the Commonwealth Ombudsman ("the Ombudsman"). The President was satisfied that there was no evidence, or insufficient evidence, that the respondents, or any of them, discriminated against the applicant by reason of his disability. The disability upon which the applicant places reliance is his mental illness. The applicant appeared before the Court without legal representation. The first and third respondents submitted to the order of the Court save as to costs. The second and fourth respondents placed submissions before the Court by their respective legal representatives. FACTUAL BACKGROUND The factual background to the applicant's complaints, which the applicant orally outlined to the Court, is long and involved. There was no formal proof of most aspects of this factual background. The only evidence which the applicant sought to place before the Court was argumentative in character and was received as part of the applicant's submissions to the Court, and not as proof of the allegations contained therein. It is clear, however, that the applicant's history of relevant dealings with the respondents was precipitated by the receipt by the applicant of anonymous, obscene, and harassing telephone calls and facsimile transmissions. It appears that as the applicant sought redress concerning the telephone calls and facsimile transmissions, he identified numerous grounds of complaint against those to whom he turned for assistance. I do not find it necessary to detail every such ground of complaint. The applicant complained to the AFP about the telephone calls and facsimile transmissions. The AFP decided not to investigate the applicant's complaint. The AFP placed reliance on the following: (a) its limited resources; (b) its giving of priority to cases involving an immediate threat to a person's well being or serious criminality; and (c) the ability of Telstra, at the request of the applicant, to change his telephone number or to give him an unlisted number. The applicant also complained to Telstra. Telstra advised the applicant that if he wished any future calls to be traced it was be desirable for him to have his telephone service upgraded. Telstra offered to update the applicant's telephone equipment without charge but the applicant refused the offer. Telstra did place a trace facility on the applicant's telephone. The applicant declined an offer from Telstra to change his telephone number to an unlisted number without charge. He feared social isolation. The applicant complained to the Ombudsman about the response which he received from AFP and Telstra. The Ombudsman formed the view that the conduct of the AFP was reasonable in the circumstances and she declined to investigate the applicant's complaint further. The Ombudsman advised the applicant that if he were dissatisfied with the conduct of Telstra, he could take the matter up with the Telecommunications Industry Ombudsman. The applicant by letter dated 31 January 1996 made a complaint concerning each of the AFP, Telstra and the Ombudsman to the Disability Discrimination Commissioner ("the Commissioner"). The applicant's long letter of complaint opened as follows: "I write seeking assistance on the matter of my having been discriminated against, due to my having been mentally ill, by the Australian Federal Police, Telstra and the office of the Commonwealth Ombudsman in respect to my having made a complaint to the AFP after receiving for what is now over five years anonymous, obscene and harassing phone calls, and obscene and threatening facsimile's. [sic] I have offered proof in the form of legally obtained tape recordings of a number of the phone calls and offered possitive [sic] identification as to the persons who have made a number of the calls. I have been fobbed off with a series of excuses that are themselves documented as being a mixture of lies and blatent [sic] attempts to simply get rid of me. From my first meeting with the AFP I made it most clear that I had been mentally ill and as I had experienced a great deal of disbelief in what I have had happening to me I even went as far as to provide the AFP officer with my written permission to contact my G.P. in order that she might clarify from the very start that my allegations were indeed very real and not a figment of the imagination of a mentally unbalanced person. The result of this honesty on my part has been that I have been treated with absolute contempt by all concerned and despite the best efforts to assist me by my G.P. Dr Wendy Burton and my Federal MP Ted Mack, the lies and discrimination continue, and have now reached the point of my being given what I view as veiled threats by the AFP because I have advised them that given their refusal to assist me and the continued effect that these criminal attacks have upon my health I feel that I am now forced to exercise my right in law to use reasonable force to defend myself." By letter dated 17 May 1996 the Commissioner advised the applicant that the Commissioner declined to continue investigating the applicant's complaints of discrimination on the ground of disability on the basis that they lacked substance. The Commissioner's letter advised the applicant as follows: "In light of the actions taken by Telstra, I can find no evidence that it has discriminated against you either, and I would encourage you to take up Mr Hofsteters suggestion, should you receive such distressing telephone calls in the future. The Commonwealth Ombudsman did undertake some inquiry into your complaint about the AFP, but decided that they had not acted unreasonably and declined to take any further action. I can find no, or no sufficient, evidence of discrimination in this decision. I note that the Ombudsman advised you that, if you were dissatisfied with Telstra, you could take up the matter with the Telecommunications Industry Ombudsman. In light of the foregoing, I have decided not to continue to inquire into this complaint as I think that it is lacking in substance." As is mentioned above, the President, having reviewed the decision of the Commissioner not to continue to inquire into the applicant's complaints, dismissed the complaint on the basis that he was satisfied that there was no evidence, or insufficient evidence, that the respondents had discriminated against the applicant by reason of his disability.