Lincoln v Holmesglen Institute of TAFE [1999] FCA 602

FEDERAL COURT OF AUSTRALIA

Lincoln v Holmesglen Institute of TAFE [1999] FCA 602

PRACTICE & PROCEDURE – application for an adjournment STANLEY PMHV FITZROY-MENDES AMARASURIYA ASIA ABRAHAM LINCOLN III v HOLMESGLEN INSTITUTE OF TAFE V 52 of 1999 GOLDBERG J 5 MAY 1999 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V52 of 1999

BETWEEN: STANLEY PMHV FITZROY-MENDES AMARASURIYA ASIA ABRAHAM LINCOLN III

Applicant

AND: HOLMESGLEN INSTITUTE OF TAFE

Respondent

JUDGE: GOLDBERG J

DATE OF ORDER: 5 MAY 1999

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The applicant's application by notice of motion filed 4 May 1999 to adjourn the hearing of the application is refused. 2. There be no orders as to costs. 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 V52 of 1999

BETWEEN: STANLEY PMHV FITZROY-MENDES AMARASURIYA ASIA ABRAHAM LINCOLN III

Applicant

AND: HOLMESGLEN INSTITUTE OF TAFE

Respondent

JUDGE: GOLDBERG J

DATE: 5 MAY 1999

PLACE: MELBOURNE

EX TEMPORE REASONS FOR JUDGMENT (No 2) HIS HONOUR: 1 By application filed in this Court on 9 February 1999, the applicant sought an order for the enforcement of the interim determination made by President Alice Tay of the Human Rights and Equal Opportunity Commission ("the Commission") on 9 December 1998 and also sought such further or other orders as the court deemed appropriate. The application was supported by an affidavit which verified the interim determination which had been made. The interim determination was made pursuant to s 102 of the Disability Discrimination Act 1992 (Cth) and was in the following terms: "PENDING THE RESOLUTION OF THIS COMPLAINT, THE RESPONDENT, HOLMESGLEN INSTITUTE OF TAFE, IS TO REFRAIN FROM RECORDING A FAIL MARK AGAINST THOSE SUBJECTS FOR WHICH THE APPLICANT WAS ENROLLED IN THE SECOND SEMESTER OF 1998." The substantive complaint made before the Commission, to which that interim determination related, was an allegation and complaint by the applicant that the Holmesglen Institute of TAFE ("the Institute") has not provided him with any support or equipment to accommodate his disability during his studies. He alleges that consequently he has not been able to complete any assignments and anticipates that he will fail his second semester courses. 2 That substantive complaint is not before the Court. What is before the Court is an order for the enforcement of that interim determination made on 9 December 1998 pursuant to s 102 of the Disability Discrimination Act. By virtue of the provisions of s 105A(1) of that Act, the applicant can commence proceedings in this Court for an order to enforce the interim determination made by President Tay, and succeeding subparagraphs of s 105A set out the procedure by which that proceeding is to be undertaken. In substance, it involves the court looking at the matter de novo and in effect determining whether or not a sufficient case has been made out that conduct has been committed in breach of the Act to warrant the interim determination. 3 This matter was touched on by Carr J in the case of Michael v State Housing Commission (unreported, 19 July 1996), when dealing not only with the Disability Discrimination Act but also dealing with the Racial Discrimination Act 1975 (Cth). His Honour considered the following passage of Spender J in Carson v Minister for Education (Queensland) (1989) 25 FCR 326 at 335: "[I]t seems to me that, if there has been an interim determination, the Federal Court should inquire into whether to give effect to it by considering whether, in the circumstances proved before it, it would grant an interlocutory injunction. S 25ZA [of the Racial Discrimination Act], in giving the complainant a right to institute proceedings to enforce an interim determination must, by necessary implication, confer jurisdiction on the court to enforce such a determination, the determination by the Commission being either binding or conclusive. It seems to me that the Federal Court should make such an order only after it is itself satisfied on material properly before it that the circumstances call for the making of an order which would have the effect of giving effect to the interim determination." Carr J continued: "With respect, I agree completely with the above. In my view, the reference to 'the proceedings' in s105A(3) and s105A(5) is to both types of proceedings which may be commenced under s105A(1). In either of such proceedings the Court may exercise its power, if it thinks fit, to grant an interim injunction pending the determination of the proceedings. When deciding whether it is fit to grant an interim injunction, it must be relevant to consider whether sufficient evidence has been adduced which, if accepted as factual at the eventual hearing, would establish that (or, in the case of an interim determination, would raise a serious question to be tried concerning whether) the respondent has engaged in conduct or committed an act that is unlawful under the Disability Discrimination Act. If there were no such evidence or if all of the evidence pointed exclusively against any unlawful act then it would be contrary to the basic equitable principles upon which injunctions are granted, to submit a respondent to an interim injunction. I appreciate that in the context of judicial review of administrative action there is what is sometimes referred to as the 'no evidence' ground. However, once it is accepted that the question of whether a respondent has engaged in unlawful conduct is relevant, Parliament has spoken on how that question is to be resolved. It is to be resolved in accordance with s105A(5) by way of a hearing de novo. In the case of an interim determination the hearing of the principal application will usually be an expeditious one because the principles applicable to the grant of an interlocutory injunction will apply. Nevertheless it is to be de novo because the subsection makes no distinction between the two types of proceedings referred to in s105A(1). I would add that s105A(4), by prohibiting the Court from requiring an applicant for an interim injunction to give an undertaking as to damages, provides some confirmation that the usual equitable principles otherwise apply. If Parliament had intended to distinguish between the two types of proceedings referred to in s105A then it could easily have done so. Similarly, if Parliament had intended the proceedings to enforce an interim determination to be by way of judicial review of administrative action it could also have so stipulated. It has not done so. I can see very good reason for not doing so. It is in the public interest that the matter of whether an interim injunction should be granted to enforce an interim determination of the Commission (or its President) should be dealt with economically and quickly. There is no guarantee that proceedings by way of judicial review would achieve this more efficiently than applying the usual equitable principles governing the grant of interim relief. Judicial review can be expensive and take some considerable time. On the other hand, the principles applicable to the grant of an interlocutory injunction can be readily and speedily applied. There is also a certain appropriate symmetry between applying those principles to an interim determination rather than holding a full‑scale hearing by way of judicial review." 4 What occurred in this case was that the interim determination was made available to the Institute and officers of the Institute sought to implement a procedure whereby the interim determination was observed and a "not complete" result was recorded on records in relation to the applicant. 5 Due to circumstances that I need not go into in any detail, those results were altered in error by a temporary employee in student records and "fail" results were recorded on the applicant's academic statement in respect of two subjects which had been taken by the applicant and sent to the applicant on or about 21 December 1998. When the error came to the attention of the Institute as a result of the institution of this proceeding, the Institute amended the applicant's academic statement and changed the "fail" entry to a "not complete" entry, and there the position remains. On the evidence before me at the present time, the determination is being observed notwithstanding the hiccup which occurred earlier. 6 When the matter came on for hearing initially, the applicant sought an adjournment for the further preparation of his case. In particular he wished to obtain legal aid and file further material. His application for legal aid was refused and he has sought to have that refusal reviewed. He seeks an adjournment of the proceeding today in order to have that review undertaken because he wishes to continue with this matter and have legal representation. On 10 March 1999 I made an order that contentions of fact and law be filed by both the applicant and the respondent. In the contentions on behalf of the Institute on 30 April 1999, there appeared in paragraph 10 the following statement: "The Respondent is willing to undertake that it will comply with the Interim Order pending either its removal or the resolution of the Complaint." The reference to the resolution of the complaint is a reference to the complaint before the Commission yet to be determined finally. 7 For the reasons to which I shall refer I reject the applicant's application for an adjournment of the proceeding as the undertaking offered by the Institute effectively gives the applicant the final relief he is seeking, namely the enforcement of the interim determination. 8 The Institute has submitted that if I am to proceed with the matter, I am in effect dealing with the matter de novo and I have to deal with the matter on the basis of making a determination - it being an interim determination which is sought to be enforced - that there is a serious question to be tried as to whether or not the respondent has engaged in conduct that is unlawful under the Disability Discrimination Act. The Institute wishes to contend that I should not be so satisfied and I hasten to add that the applicant's case is that I should be satisfied that the Institute has committed an unlawful act under the Disability Discrimination Act. 9 However, for the purpose of resolving this proceeding of seeking enforcement of the interim determination, Mr Niall who appears for the Institute has reiterated that the respondent is willing to undertake to the Court that it will comply with the interim order of 9 December 1998 pending either its removal or the resolution of the complaint. It seems to me that on that undertaking being offered, the applicant has substantially succeeded in this proceeding which is effectively interlocutory and in the language of the Disability Discrimination Act is interim, in the sense that the status quo sought to be preserved by the interim determination of 9 December 1998 is preserved and will continue to be preserved until the substantive issue before the Commission is resolved. 10 If I were not to accept the undertaking proffered by the Institute then the matter would have to proceed and a substantial burden would be cast upon the applicant to establish his case and to establish, in the language to which I have referred in Michael (supra), that there is a serious question to be tried that there has been unlawful conduct under the Disability Discrimination Act. The proffering of the undertaking removes that burden from the applicant. He wishes to proceed with his application before the Commission and he wishes, in the meantime, for the status quo to be preserved. By the Institute proffering the undertaking the applicant achieves that result and the applicant is discharged, as it were, from having to establish the case which he has to make before the Court at the present time. 11 The Institute says that it denies the conduct alleged against it in the Commission but says that for the purpose of the interim proceeding it is prepared to proffer this undertaking so that the matter can proceed to determination in the Commission as soon as possible. By delaying the resolution of this present proceeding for the enforcement of the interim relief granted by the Commission, I am postponing the opportunity for the Commission to deal with the matter, although there is no reason why it cannot proceed with the substantive application as soon as it is able to do so. 12 I can see no point in granting an adjournment, notwithstanding the fact that the adjournment is sought for the purpose of the applicant obtaining legal aid and file further material. In my opinion, the applicant is not disadvantaged by the view I have taken or the course I propose to adopt, because by accepting the undertaking proffered by the Institute, the Court is putting the applicant in the position of obtaining the relief he seeks in his present application; not of course obtaining the ultimate relief he seeks before the Commission, because that matter is not presently before this Court, it is only the enforcement of the interim determination which is sought before the Court. 13 I do not consider I would be denying the applicant natural justice by refusing his application for an adjournment in order to get legal aid to help him present his case and file further material, because in effect by accepting the undertaking, I am putting the applicant in the position where he no longer needs to proceed with the matter. He is obtaining the relief he seeks by way of an undertaking to the court. I should emphasise, an undertaking to a court is a serious matter. It is a matter which, if it is subsequently not observed, lays the Institute open to potential action akin to the action which is taken for contempt of court. The undertaking is not given lightly but it is given in circumstances which in my submission resolve the matter for the applicant. I therefore refuse the applicant's application for a further adjournment. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.