FEDERAL COURT OF AUSTRALIA Travers v State of New South Wales [2000] FCA 1565 DISABILITY DISCRIMINATION – proceeding seeking relief in respect of alleged unlawful discrimination commenced in the Court following the termination of a complaint made to the Human Rights and Equal Opportunity Commission – motion filed by respondent seeking an order summarily dismissing the proceeding under FCR O 20 r 2 on the basis that the application disclosed no reasonable cause of action – whether the application failed to meet the requirements of s 46PO(3) of the Human Rights Legislation Amendment Act (No 1) 1999 (Cth) because the discrimination which it alleged was not the same as (or the same in substance as), or did not arise out of the same (or substantially the same) acts, omissions or practices as, the discrimination which was the subject of the terminated complaint – whether the facts alleged by the applicant would, if proved, amount to indirect discrimination within the meaning of s 6 of the Disability Discrimination Act 1992 (Cth) PRACTICE AND PROCEDURE – whether it would be appropriate for the Court to conclude that an application is not supported by the evidence filed, and to proceed to make an order under FCR O 20 r 2, on the basis of a possible inconsistency between the affidavit filed with the application and another affidavit filed on behalf of the applicant Federal Court Rules, O 20 r 2 Disability Discrimination Act 1992 (Cth), s 6 Human Rights Legislation Amendment Act (No 1) 1999 (Cth), s 46PO(3) Mandla v Dowell Lee [1983] 2 AC 548, referred to Australian Public Service Association v Australian Trade Commission (1988) EOC 92-228, followed Styles v Secretary, Department of Foreign Affairs and Trade (1988) EOC 92-239, followed Assal v Department of Health, Housing & Community Services (1992) EOC 92-409, referred to Simplot Australia Pty Ltd v Human Rights and Equal Opportunity Commission (1996) 69 FCR 90, referred to Commonwealth v Sex Discrimination Commissioner (1998) 90 FCR 179, referred to STEPHANIE TRAVERS by her next friend, MS WENDY LORRAINE TRAVERS v STATE OF NEW SOUTH WALES N 473 OF 2000 LEHANE J 3 NOVEMBER 2000 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 473 OF 2000 BETWEEN: STEPHANIE TRAVERS by her next friend, MS WENDY LORRAINE TRAVERS APPLICANT AND: STATE OF NEW SOUTH WALES RESPONDENT JUDGE: LEHANE J DATE OF ORDER: 3 NOVEMBER 2000 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The relief sought by the respondent in its notice of motion filed on 6 October 2000 be refused. 2. The respondent pay the applicant's costs of the motion. 3. The proceeding be transferred to the Federal Magistrates Court of Australia. 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 N 473 OF 2000 BETWEEN: STEPHANIE TRAVERS by her next friend, MS WENDY LORRAINE TRAVERS APPLICANT AND: STATE OF NEW SOUTH WALES RESPONDENT JUDGE: LEHANE J DATE: 3 NOVEMBER 2000 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The respondent, the State, seeks by its motion filed on 6 October 2000 an order summarily dismissing the proceeding under O 20 r 2 of the Federal Court Rules on the basis that no reasonable cause of action is disclosed. The applicant (I shall refer to her in that way, though she is the respondent to the State's motion) seeks in the proceeding relief in the form of an apology and compensation for what she claims to have been discrimination against her which was unlawful under the Disability Discrimination Act 1992 (Cth) (I shall refer to that Act as the Discrimination Act). She commenced the proceeding following the termination by a delegate of the President of the Human Rights and Equal Opportunity Commission (the Commission), under s 14 of the Human Rights Legislation Amendment Act (No. 1) 1999 (Cth) (the Amendment Act), of a complaint which she had made under the Discrimination Act. 2 The State seeks summary dismissal on two grounds. One commences with the proposition that the discrimination alleged in the application to the Court is not the same as, or the same in substance as, the discrimination which was the subject of the terminated complaint and does not arise out of the same, or substantially the same, acts, omissions or practices which were the subject of the terminated complaint: that is, the application to the Court, the State contends, does not meet the requirements of s 46P0(3) of the Amendment Act. If, the argument proceeds, the application is limited to the substance of the complaint to the Commission, it is not supported by the evidence filed, and should be dismissed. The other basis of the State's motion is that the acts and omissions on which the applicant relies do not amount to discrimination of a kind that is forbidden by the Discrimination Act. facts 3 For the purpose of dealing with the motion, the allegations of fact on which the applicant bases her claim may be summarised quite briefly. The applicant was born on 14 December 1988. She has spina bifida. As a result, she has some physical disability, an aspect of which is that she has some difficulties with bladder and bowel control. In order to minimise the risk of accidents, she needs (or, at least, at the relevant time needed) to be within about twelve seconds' walking distance of a toilet. 4 During 1995 and early 1996, the applicant attended Parramatta West Public School. In 1995 some arrangements were made, principally the provision of a teacher's aide, to help the applicant. In 1996 the applicant entered year 2. Her usual classroom was not within twelve seconds' walking distance of a toilet to which she had access. There was, however, a toilet for disabled children, referred to in the material filed in support of the application as the "disabled toilet". The disabled toilet was close to the applicant's classroom. It was, however, kept locked. A number of teachers had keys and, in order to use the disabled toilet, it was necessary to ask one of those teachers to open it. On 16 February 1996 the applicant's mother, accompanied by the applicant and her grandmother, had a discussion at the school with the principal and the deputy principal. The discussion, according to the account given by the applicant's mother, was acrimonious and unsatisfactory. The applicant's mother asked that the applicant be provided with a key to the disabled toilet or, alternatively, that the toilet be left unlocked. Both requests, according to her account, were refused. The applicant did not attend the school after 16 February 1996. On 10 February 1997 the applicant's mother made a complaint to the Disabilities Commissioner, alleging discrimination. 5 The discrimination alleged in the heading of the letter of complaint was "Access denied to the Disabled Toilet by Mr. Robert Lamaro (Principal) and Miss Vicky Russell (Deputy Principal)". The body of the letter largely consists of an account of the meeting and discussion on 16 February 1996. The letter does, however, say that Mr Lamaro and Miss Russell appeared to be aggravated by what they were told in support of the request for access to the disabled toilet, "an attitude which seems to have been present since [the applicant's] enrolment in the school". The concluding paragraph of the letter reads: "This resulted in a stalemate being reached leaving no alternative but to remove [the applicant] from a hostile environment that was not allowing [the applicant] the use of the disabled toilet as other children in the school with disabilities had the privilege of." 6 The prescribed form of application to the Court does not require an applicant to state, in the form, any details of the conduct complained of. It does, however, require an affidavit to be attached "stating the facts in support of this application". In this case, an affidavit of the applicant's mother was filed with the application. That affidavit briefly describes the circumstances at the beginning of 1996 and the meeting on 16 February. It also recounts, but not in great detail, some aspects of the family's dealings with the school during 1995; particularly, it alleges earlier requests for access to the disabled toilet and their refusal. A copy of the complaint dated 10 February 1997 is annexed to the affidavit. Further affidavits have been filed, in accordance with directions, canvassing in much greater detail the applicant's condition, the meeting of 16 February 1996 and earlier dealings between the family and the school. FIRST BASIS OF THE MOTION: APPLICATION EXCEEDS AMBIT OF ORIGINAL COMPLAINT 7 It is common ground that the complaint to the Commission met the criteria stated in s 12(1) of the Amendment Act: the appropriate Commissioner had referred it to the Commission; the holding of an inquiry into the complaint had not started; and the complaint had not been withdrawn. Thus, under s 12(2), the President was taken to have terminated the complaint under s 46PH of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) as amended by the Amendment Act. Notice of termination was required (Amendment Act s 14) and such a notice was given. In consequence, the applicant was entitled to make an application to the Court alleging unlawful discrimination by the State (Amendment Act s 46PO(1)). Section 46PO(3) provides that: "The unlawful discrimination alleged in the application: (a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or (b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint." 8 No doubt it was intended that a terminated complaint should not be used to launch an application to the Court, effectively bypassing the procedures provided by the legislation, alleging discrimination other than that of which a complaint had been made or covering a course of conduct substantially wider – or beginning substantially earlier – than that initially complained of. At the same time, it must be recognised that the terms of s 46PO(3) suggest a degree of flexibility ("or the same in substance as", "or substantially the same") and a complaint, which usually will not be drawn by a lawyer, should not be construed as if it were a pleading: Commonwealth v Sex Discrimination Commissioner (1998) 90 FCR 179 at 188. Indeed, the initial complaint may be in quite brief and general terms, the detail being elicited in the course of inquiries by the relevant Commissioner: Simplot Australia Pty Ltd v Human Rights and Equal Opportunity Commission (1996) 69 FCR 90 at 94. It may well be that the ambit of a complaint is to be ascertained, for the purpose of s 46PO(3), not by considering its initial form but by considering the shape which it had assumed at the time of its termination. Counsel for the State contended that the "complaint" to be considered for the purpose of s 46PO(3) in this case comprised the letter of 10 February 1997 and nothing else. Although there is no need to reach a firm conclusion about it, there is in my view much to be said for the applicant's submission to the contrary. 9 In any event, the letter of 10 February 1997 itself states, as its subject matter, a denial of access to the disabled toilet. The particular complaint made arose from the discussion on 16 February 1996 and the alleged refusal of the principal and deputy principal, on that occasion, to provide a key or leave the toilet open. The stated context of the discussion, however, was that earlier meetings had been held and details of the applicant's disability and needs – particularly a need to have access at any time to a toilet within twelve seconds' walking distance – provided. It is evident that, though the particular subject matter of the complaint, as stated in the heading, was a refusal to provide access to the disabled toilet in the manner requested, the applicant's mother regarded information provided to the school, and consideration given to the applicant's needs during the period of her enrolment, as important background to the complaint. It is clear also that that is how the Commissioner viewed the complaint: that appears from her letter to the Director‑General of the Department of School Education in which she sought the comments of the Director-General on it. 10 There is no doubt that the affidavit lodged with the application to the Court alleges, as the unlawful discrimination relied on, substantially the same facts as those asserted in the letter of 10 February 1997. To the extent that the deponent gives evidence of earlier events, that evidence, its seems to me, covers substantially the same ground as the references, in the account in the letter of 10 February 1997 of the meeting of 16 February 1996, of the basis on which the principal and deputy principal were said to be well aware of the applicant's needs. There is an assertion in the affidavit that the principal had during 1995 refused to provide the applicant with access to the disabled toilet. If by that it was intended to raise, as a separate matter of complaint, refusals earlier than that originally complained of, it may be that the applicant would not, at the hearing, be permitted to do so. But the proceeding is not, in my view, to be wholly dismissed because – if it is the case – the application, though alleging the same discrimination as that originally complained of, also alleges similar discrimination at an earlier time. An affidavit in support of an application cannot, as a pleading can, be struck out in part. Equally, there may be a question, if at trial the applicant seeks to rely on certain of the evidence she has filed, of the relevance of that evidence; but that is a matter to be dealt with at trial, not on the present motion. 11 The submission that the application is not supported by the evidence filed, if the application is limited as the State contends it should be, relies on what is said to be an inconsistency between evidence given by the applicant's mother and an affidavit of the applicant's grandmother. Whereas the former characterises the refusal at the meeting of 16 February 1996 as final, the latter suggests that the principal indicated that the request might be given further consideration. But it is inappropriate at this stage of the proceeding simply to read the affidavits of the two deponents, assume that both will be relied upon at trial and accept the grandmother's affidavit both as the version which would be accepted and as supporting the conclusion for which the State contends. SECOND BASiS OF THE MOTION: NO REASONABLE CAUSE OF ACTION DISCLOSED? 12 This ground relies on a contention that the facts alleged by the applicant would not, if proved, amount to discrimination as that word is used in the Discrimination Act. For the purpose of the Discrimination Act, the school is an "educational institution" as defined in s 4(1) and the State an "educational authority" as defined in that section. Section 22(2) provides in part: "It is unlawful for an educational authority to discriminate against a student on the ground of the student's disability …: (a) by denying the student access, or limiting the student's access, to any benefit provided by the educational authority; … (c) by subjecting the student to any other detriment." 13 Sections 5 and 6 define the kinds of discrimination which may be relevant for present purposes. Section 5 deals with what is usually called direct discrimination. Direct discrimination occurs where one person, the discriminator, treats or proposes to treat another, the aggrieved person, because of the aggrieved person's disability, less favourably than, in circumstances that are the same or not materially different, the discriminator treats or would treat a person without the disability. It is common ground for the purposes of the motion that what is alleged does not amount to direct discrimination of that kind. The applicant claims, however, that it does amount to indirect discrimination as defined by s 6. Section 6 provides: "For the purposes of this Act a person ("discriminator") discriminates against another person ("aggrieved person") on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition: (a) with which a substantially higher proportion of persons without the disability comply or are able to comply; (b) which is not reasonable having regard to the circumstances of the case; and (c) with which the aggrieved person does not or is not able to comply." 14 The State contended that the requirement or condition alleged can only be that the applicant not be provided with a key to the disabled toilet. That requirement or condition was imposed not because of the applicant's disability but was a condition imposed on all students at the school. Nor was the applicant unable to comply with that condition. For those two reasons, the statutory test would not be met if the allegations were established. 15 I do not think, however, that the condition alleged should be construed so specifically. Certainly the immediate issue leading to the complaint of 10 February 1997 – and its particular subject matter – was ready access to the disabled toilet. But it is evident that the concern underlying the request for access to the disabled toilet was mainly that the applicant should have immediate access to a toilet to which she could walk from her classroom in twelve seconds or less. That is made clear in the affidavit accompanying the application to the Court and it is fair, in my view, to read the letter of 10 February 1997 in the same way. In that letter the applicant's mother claims to have said, after referring to information which, she claimed, the principal and deputy principal already had, that the applicant "requires twelve seconds to reach the toilet". The effect of a refusal to allow access to the disabled toilet in the manner requested was that she would not have access to a toilet which she could reach within that time. That, again, is the way in which the Disability Discrimination Commissioner understood the complaint: that appears from her letter seeking the comments of the Director‑General. 16 Once that is accepted, it follows that the refusal to leave the disabled toilet unlocked or to provide the applicant with her own key (if that is what ultimately is proved to have happened) elicited a complaint the substance of which might be expressed in this way: the applicant was required to attend classes in a classroom from which she could not walk to a toilet, to which she had ready access, within twelve seconds. Counsel for the State submitted that that was a construction of the complaint that its terms did not permit (I have indicated why I do not accept that submission) but did not suggest that, if the complaint (and the claim in this Court) were construed in that way, it would not amount to a claim of indirect discrimination within s 6. 17 To conclude that it could amount to discrimination of that kind requires a reasonably liberal interpretation of the phrase "is not able to comply" in par (c) of s 6. Neither the original complaint nor the claim in this proceeding suggests that it is literally impossible for the applicant to comply with a condition in the form I have suggested. She could do so, but only with consequences which (if the facts alleged are proved) are seriously embarrassing and distressing. The absence of any argument by the State specifically directed to the point makes me confident in taking the view – which in any event seems to me correct – that it is appropriate to construe "is not able to comply" as extending to the requirement as I have expressed it. It is consistent with a line of Australian decisions which have applied a construction adopted by the House of Lords in Mandla v Dowell Lee [1983] 2 AC 548 at 565, 566 per Lord Fraser of Tullybelton, with whom the other members of the House agreed. It is unnecessary to list the Australian decisions. It is sufficient, I think, to mention two of the earlier cases, each a decision of a judge of this Court: Australian Public Service Association v Australian Trade Commission (1988) EOC 92–228 at 77,162 and Styles v Secretary, Department of Foreign Affairs and Trade (1988) EOC 92–239 at 77,238. CONCLUSION 18 I accept that, as counsel for the State submitted: "… it is in the public interest, as well as in the interests of both parties, that the hearing of a complaint which is clearly shown to be lacking in substance should be summarily terminated. Certainly, it is no kindness to a complainant to shrink from the exercise of the power … in circumstances where that exercise is clearly warranted." 19 (Assal v Department of Health, Housing & Community Services (1992) EOC 92–409 at 78,900 per Sir Ronald Wilson, President of HREOC). That is especially so, perhaps, in this Court where an unsuccessful litigant, if proceedings are protracted, may face what can be the considerable burden of a costs order. Nevertheless, it is unnecessary to refer to the well known authorities which establish the proposition that the power of summary dismissal is to be exercised only with caution and in a clear case. The reasons I have given necessarily lead, in my view, to the conclusion that this is not such a case and accordingly the motion will be dismissed with costs. transfer to federal magistrates court 20 At the conclusion of the hearing of the motion I suggested to counsel that this might well be a case which, if the motion were dismissed, might appropriately be transferred to the Federal Magistrates Court of Australia. Neither party opposed that course; indeed, both readily accepted that transfer might well be appropriate. 21 The power to transfer a proceeding to the Federal Magistrates Court is conferred by s 32AB of the Federal Court of Australia Act 1976 (Cth). An order may be made on the Court's own initiative. Subsections (3) to (6) prescribe requirements to be observed and matters to be taken into account. In considering whether an order should be made in this case I have, of course, had regard to those provisions. Particularly, I have considered the matters which s 32AB(6) requires to be taken into account. I have ascertained that the resources of the Federal Magistrates Court are sufficient to hear and determine the proceeding and, in my view, the interests of the administration of justice would be served by ordering the transfer. In those circumstances, in addition to the orders disposing of the motion, I order that the proceeding be transferred from this Court to the Federal Magistrates Court. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lehane. Associate: Dated: 3 November 2000 Counsel for the Applicant: N C Poynder Solicitor for the Applicant: Public Interest Advocacy Centre Counsel for the Respondent: S Winters Solicitor for the Respondent: Crown Solicitor of NSW Date of Hearing: 23 October 2000 Date of Judgment: 3 November 2000