FEDERAL COURT OF AUSTRALIA

Rana v University of South Australia [2004] FCA 559

PRACTICE AND PROCEDURE – appeal from decision of Federal Magistrate summarily dismissing application claiming unlawful discrimination – principles relating to summary dismissal – where application said to lack merit – application need only disclose a reasonable cause of action – court should not consider whether the application will ultimately succeed – approach where litigant unrepresented.

PRACTICE AND PROCEDURE – philosophy underlying proceedings in Federal Magistrates Court – absence of pleadings – function of pleadings generally.

Federal Magistrates Court Rules

Human Rights and Equal Opportunity Commission Act 1986 (Cth)

Racial Discrimination Act 1975 (Cth)

Disability Discrimination Act 1992 (Cth)

Federal Court of Australia Act 1976 (Cth)

Federal Magistrates Act 1999 (Cth)

Evidence Act 1995 (Cth)

Hunt v Allied Bakeries Ltd (1956) 3 All ER 513 applied

Hall v Nominal Defendant (1966) 117 CLR 423 cited

Tampion v Anderson (1974) 48 ALJR 11 applied

In the matter of an appeal by Gaye Alexandra Mary Luck [2003] HCA 70 applied

Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 applied

Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 applied

Niemann v Electronic Industries Ltd [1978] VR 431 applied

Mulley v Manifold (1959) 103 CLR 341 cited

Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (In Liquidation) (1916) 22 CLR 490 cited

Dey v Victorian Railways Commissioner (1949) 78 CLR 62 cited

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 applied

RANJIT RANA v UNIVERSITY OF SOUTH AUSTRALIA

S 826 OF 2003

LANDER J

7 MAY 2004

ADELAIDE

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The time within which the appellant might apply for leave to appeal is extended to 3 February 2004.

2.         Leave to appeal from the order of the Federal Magistrate made on 21 November 2003 is granted.

3.         The appeal is allowed.

4.         The matter be remitted to the Federal Magistrates Court for further hearing.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     Mr Ranjit Rana, whom I shall call the appellant, has filed a notice of appeal from an order of a Federal Court Magistrate made on 21 November 2003 dismissing the appellant’s application against the respondent for unlawful discrimination.  In reasons published that day, the Magistrate summarily dismissed the appellant’s application on the grounds that the respondent had demonstrated that it had no case to answer under the Racial Discrimination Act 1975 (Cth) (Racial Discrimination Act) and the appellant had not shown any reasonable cause of action in respect of his complaints under the Disability Discrimination Act 1992 (Cth) (Disability Discrimination Act).

2                     On 23 January 2004, the Chief Justice of this Court determined that the appeal be heard by a single judge in accordance with s 25(1A) of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act).

3                     Subsequently, on 3 February 2004, the appellant filed a notice of motion seeking leave to appeal.  The application for leave to appeal is out of time.  Any application for leave to appeal should have been brought within seven days from the pronouncement of the judgment: O 52 r 10(2)(b) of the Federal Court Rules.  That being so, if the judgment is one which requires the appellant to obtain leave, then the appellant will also need an extension of time within which to institute his application for leave to appeal.

4                     It would follow that I would grant an extension of time within which to apply for leave to appeal if I was of the opinion that leave to appeal was required and should be granted.  Indeed, Mr Douglas, who appeared for the respondent, did not contend otherwise.

5                     If I reach those conclusions, I should then hear the appeal which, as I have said, has already been the subject of a determination by the Chief Justice under s 25(1A) of the Federal Court Act.

Is leave to appeal required?

6                     The first question then to be determined is whether leave to appeal is required.

7                     The application which the Federal Magistrate heard and determined was an application by the respondent, pursuant to r 4.04(1)(c) and r 13.10(a) of the Federal Magistrates Court Rules (FMC Rules), to summarily dismiss the appellant’s application.

8                     Section 24(1A) of the Federal Court Act provides that an appeal shall not be brought from, inter alia, a judgment of the Federal Magistrates Court that is an interlocutory judgment, unless the Court or a judge gives leave to appeal.

9                     The respondent has contended that the Federal Magistrate’s decision upholding that application is an interlocutory judgment and, as a result therefore, leave is required.

10                  In my opinion, the respondent’s contention is correct.  The order made by the Federal Magistrate is an interlocutory judgment.  In Hunt v Allied Bakeries Ltd (1956) 3 All ER 513 at 514, Lord Evershed MR said:

‘After consulting with the Chief Registrar and looking at the cases, and also after consultation with my colleagues, I am left in no doubt at all that, rightly or wrongly, orders dismissing actions — either because they are frivolous and vexatious, or on the ground of disclosure of no reasonable cause of action — have for a very long time been treated as interlocutory.’

11                  In Hall v Nominal Defendant (1966) 117 CLR 423 at 440, Taylor J referred to the rule in England that an order striking out a claim on the ground that it was frivolous, vexatious or an abuse of process, or that it disclosed no cause of action, was interlocutory in nature.

12                  In Tampion v Anderson (1974) 48 ALJR 11, the Judicial Committee of the Privy Council approved the dicta of Lord Evershed in a case in which an applicant was seeking leave to appeal to the Privy Council from a decision of the Supreme Court of Victoria staying an action on the ground that the action was frivolous, vexatious and an abuse of process.

13                  The decision of the Privy Council in Tampion v Anderson was approved by three Justices of the High Court in In the matter of an appeal by Gaye Alexandra Mary Luck [2003] HCA 70 at [6]-[11].

14                  In Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 at [43], French J (with whom Beaumont and Finkelstein JJ agreed) said:

‘If a proceeding is dismissed because it is frivolous or vexatious or because no reasonable cause of action is disclosed the decision is treated as interlocutory.’

15                  In my opinion, it is beyond doubt, having regard to the decisions to which I have referred, that the Federal Magistrate’s decision was an interlocutory judgment and leave is required.

The principles on an application for leave to appeal

16                  The matters to be considered on an application for leave to appeal were referred to in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 which generally approved the decision of the Full Court of the Supreme Court of Victoria in Niemann v Electronic Industries Ltd [1978] VR 431.  In that decision, the Victorian Full Court decided that the principles governing the grant or refusal of leave were as follows:

(1)        whether in all the circumstances the decision is attended by sufficient doubt to warrant it being reconsidered by the appellate court; and

(2)        whether substantial injustice would result if leave were refused supposing the decision to be wrong: at 433.

17                  The Full Court of the Federal Court in Décor Corporation said of that decision at 399:

‘In our opinion, the principles discussed in Niemann and in the other cases to which we have referred provide general guidance which a court should normally accept.  However, there will continue to be cases raising special considerations, and the court should not regard its hands as tied in any case beyond this; that by s 24(1A) [of the Federal Court Act] the legislature has evinced a policy against the bringing of interlocutory appeals except where the court, acting judicially, finds reason to grant leave.  When the court comes to exercise its discretion on a particular application, an important distinction to be observed is that between the common interlocutory decision on a point of practice — concerning which the High Court has given (see Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177) a strong warning that “a tight reign” should be kept on appeals — and an interlocutory decision determining a substantive right — where leave will more readily be granted.’

18                  I should, therefore, determine whether the decision complained of is attended by sufficient doubt to warrant me hearing the appeal and, if so, whether substantial injustice would result if I refused leave.

The Federal Magistrates Act 1999 (the Act)

19                  In his second reading speech (Parliamentary Debates, Hansard, 1999, House of Representatives, 24 June 1999, 7365-7366), when introducing the Federal Magistrates Bill 1999, the then Attorney-General, Mr Daryl Williams QC, said:

‘The Government proposes that the federal magistrates develop a new culture, with an emphasis on user friendly, streamlined procedures.  This will be especially important for litigants who do not have legal representation.  The Federal Magistrates Service will be as informal as possible, while remaining consistent with the discharge of judicial functions.  This change of culture could not be achieved by appointing more judges to the existing courts.  Nor would simply appointing more judges solve the problem of the waste of judicial resources which occurs as a result of superior court judges dealing with less complex matters that could be dealt with efficiently at a lower level.’

20                  He later said:

‘The Government is keen to ensure that the procedures of the new Federal Magistrates Service are as streamlined and informal as practicable.  Obviously, it will be up to the Federal Magistrates Service itself to make its own rules, which will largely determine issues of practice and procedure.  However, the legislation will include provisions designed to assist the Federal Magistrates Service to develop procedures that are as simple and efficient as possible.  Under the provisions of this bill:

·        the court will have the power to set time limits for witnesses and to limit the length of both written and oral submissions;

·        discovery and interrogatories will be permitted only if the court considers that they are appropriate in the interest of the administration of justice;

·        the court will be able to make a decision without an oral hearing with consent of both parties;

·        there will be more emphasis on delivering decisions orally in appropriate cases, rather than the parties having to wait for reserved judgments; and

·        the court will have the power to make rules to allow federal magistrates to give reasons in a shortened form in appropriate cases.’

21                  The Act incorporates some of the objects to which the Attorney referred.  Section 3(2) of the Act provides:

‘The other objects of this Act are:

(a)       to enable the Federal Magistrates Court to operate as informally as possible in the exercise of judicial power; and

(b)       to enable the Federal Magistrates Court to use streamlined procedures; and

(c)        to encourage the use of a range of appropriate dispute resolution processes.’

22                  Section 42 of the Act provides:

‘In proceedings before it, the Federal Magistrates Court must proceed without undue formality and must endeavour to ensure that the proceedings are not protracted.’

23                  Section 50 provides that proceedings can be instituted in the Court by way of application without the need for pleadings.  Section 45 of the Act provides that some interlocutory processes, namely interrogatories and discovery, are not allowed in relation to proceedings in the Court unless a Federal Magistrate declares that it is appropriate in the interests of the administration of justice to allow interrogatories or discovery.

24                  The Court is entitled to limit the time for the giving of testimony in proceedings before the Court: s 62.  It can direct that testimony be given by affidavit: s 64.  It may give directions about the use of written submissions: s 56.  It can limit the length of oral argument: s 55.  In some cases, as the Attorney-General said in his second reading speech, it can make decisions without an oral hearing: s 54.

25                  The Act implements a policy of informality and efficiency of process in the Federal Magistrates Court whilst still delivering justice to the parties.  That is evidenced by the provisions to which I have referred.  However, the Act itself expressly reinforces that philosophy.  Section 42 requires the Court to proceed without undue formality and to ensure that proceedings are not protracted.  The intention is that it will be a low cost court and that decisions can be given quickly.

26                  Section 43 of the Act provides that the practice and procedure of the Court shall be governed by the Rules of Court made under the Act.  The Rules of Court are subject to any provision under the Act with respect to practice and procedure: s 43.  Where there are insufficient rules, the Rules of this Court or the Family Court, whichever are appropriate, apply so far as they are capable of application: s 43(2).

27                  The Act is replete with provisions authorising the Federal Magistrates to make Rules of Court in relation to the practice and procedure to be followed in the Court and for all matters and things incidental to any such practice and procedure, or necessary to be prescribed for the conduct of the Court’s business: s 81(1).  Section 82(1) specifically empowers the makers of the Rules of Court to make provision for pleadings, interrogatories, discovery, production and inspection.  Other empowering provisions are to be found in ss 83, 84, 85, 86, 87 and 88.

The Federal Magistrates Court Rules 2001 (FMC Rules)

28                  The FMC Rulesreflect the policy of the Act.  Proceedings are commenced by an application: r 4.01(1).  The form of the application is provided for in Part 1 of Schedule 2 of the FMC Rules.  The application must identify the Act under which the proceeding is brought, the applicant and the respondent, and their lawyers, and the interim and final orders sought by the applicant.

29                  Rule 4.02 provides:

“4.02   An application must precisely and briefly state the orders sought and (if the application is for a general federal law proceeding) the basis on which the orders are sought.’

30                  The FMC Rules require the person filing the application to file an affidavit stating the facts relied on for the orders sought: r 4.05(1).

31                  A person who is alleging unlawful discrimination under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (HREOC Act) must also file a document entitled, ‘An Information Sheet’: r 4.06(1).

32                  A respondent must file a response which is in the form set out in Part 1 of Schedule 2 of the Rules; and must also file an affidavit stating the facts relied on for that response: r 4.03(1); r 4.05(1).

33                  The FMC Rules provide for the filing of replies in certain circumstances: r 4.07(1).

34                  The FMC Rules do not provide for pleadings.  They assume that the matter will proceed on affidavits.  The FMC Rules in that sense are consistent with the philosophy of the Act and the intention of the Attorney-General at the time of the introduction of the Federal Magistrates Bill.

35                  Whilst s 82(1) does permit the Federal Magistrates to make rules relating to pleadings, the Federal Magistrates have made a deliberate decision to eschew pleadings.

36                  They have done so knowing the function which pleadings provide.  Pleadings are the formal structure upon which the proceedings are erected.  They identify the matters in dispute between the parties and the issues to be resolved.  In doing so, they provide the framework which govern the interlocutory processes and the admissibility of evidence at trial.  For example, the extent of the parties’ obligations to make discovery are governed by the pleadings: Mulley v Manifold (1959) 103 CLR 341.  The pleadings also determine what evidence is relevant at trial.   Pleadings should also state with sufficient clarity the case that must be met: Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (In Liquidation) (1916) 22 CLR 490 at 517 per Isaacs and Rich JJ.  In that way, the parties are accorded procedural fairness.  A pleading should give fair notice to an opposing party of the case to be made by the other party at trial, thereby minimising the risk of injustice resulting from surprise.  A party is obliged to plead the material facts upon which the party relies for the orders sought in the pleading.  To that end, the party must set out all the facts which are material to the causes of action raised.  A party, however, does not include in the pleading the evidence upon which the party relies to establish those material facts.  The pleadings also provide a record of the matters and issues which are before the Court which may be relevant in any subsequent proceedings if a party raises pleas of issue estoppel or res judicata.

37                  The Federal Magistrates Court has abandoned pleadings in favour of affidavits.  In doing so, it has recognised that the Court has been created to offer relatively inexpensive and expeditious justice.  It is a court which should proceed without undue formality and should ensure that the proceedings are not protracted: s 42.  It has abandoned the formal procedures of superior courts.  That course is consistent with the Act and the FMC Rules.

38                  However, affidavits perform a quite different function to pleadings.  Affidavits do not contain material facts, but evidence.  In that sense, an affidavit is quite the reverse of a pleading.  Indeed, so much is recognised in the FMC Rules themselves.  Rule 4.05(1) requires the applicant, at the time of filing the application, to file an affidavit stating the facts relied on.

39                  An affidavit in the Federal Magistrates Court should not contain material which is inadmissible, unnecessary, irrelevant, prolix, scandalous, or argumentative; that material will be liable to be struck out: r 15.29.  It follows, as I have said, that an affidavit should only contain relevant and admissible evidence.

40                  An affidavit which is to be used on an interlocutory application may contain hearsay evidence if the party who adduces the evidence also adduces evidence of its source: s 75 Evidence Act 1995 (Cth).

41                  Often a cause of action will not be so easily recognised where an affidavit accompanies an application.  The material facts which go to constitute the cause of action will not be identified.  Instead, the evidence to prove those material facts will have to form the structural platform upon which the proceedings are conducted.  Because the FMC Rules do not require the applicant to file all of his/her evidence with the application, in many cases, the applicant’s cause of action may not be completely made out by the applicant’s affidavit filed pursuant to r 4.05.  It may be that the cause of action cannot be precisely identified until all the evidence is in.

The Appellant’s Application

42                  The appellant’s application showed it to be an application under the HREOC Act.  The University of South Australia, among other parties, was shown as a respondent.

43                  The appellant sought the following interim orders:

‘1.        All record of the applicant be allowed for discovery.

2.         All record of Nina Gregurev be allowed for discovery.’

44                  He sought the following final orders:

‘1.        The applicant be allowed to do MBA.

2.         The applicant be considered throug [sic] special entry program to do MBA.

3.         The applicant be considered from group work in a case by case basis.’

45                  In the Information Sheet which accompanied the application, the appellant indicated that his claim was brought under the Disability Discrimination Act and the Racial Discrimination Act.

46                  He sought in the Information Sheet the following remedies:

‘1.        Apology from respondent.

2.         Compensation as the Court may assess.

3.         Allow to do MBA.’

47                  He provided the Court with the required documents, being a copy of his original complaint to the Human Rights and Equal Opportunity Commission, the notice of termination of complaint by the President of the Human Rights and Equal Opportunity Commission and an affidavit.

48                  The affidavit was handwritten.  It lacks structure.  It is discursive and not easy to follow.  His affidavit complains of actions of other institutions, including the University of Adelaide and Flinders University and, from time to time, confuses the three institutions.

49                  However, I think it is tolerably clear that the appellant’s claim is that he has been the victim of discrimination by reason of his race and his mental disability.

50                  The following can be elicited from the documents the appellant filed.  The appellant was born in Nepal.  He claims to be a member of the Royal family in Nepal.  The appellant has a mental disability.  The appellant complained that he had previously had difficulties with the respondent.  He claims in his affidavit that the respondent had previously discriminated against him because of his disability.

51                  He complains that he applied to do an MBA at the University of South Australia, but his application was refused.  He says it was refused on account of his race and mental disability.

52                  Whether he will ever make those matters out is another thing.  That, however, is not the question on an application for summary dismissal.

53                  Three criteria are apparently required before a person can be accepted as a candidate for an MBA.

1.         The candidate must hold an undergraduate degree.

2.         He/she must have had some experience in business.

3.         He/she must submit two referees.

Not only must those criteria be met, but also it is a necessary prerequisite that the candidate be capable of participating in group work.

54                  The appellant’s case is that he satisfied all three criteria, but that his application was refused because of his race and mental disability.  In particular, his complaint is that the respondent failed to have regard to his experience whilst working in Nepal.

55                  The appellant also sought admission to the course under the special entry process.  That process is available to candidates who cannot comply with the criteria, but that application was also declined.

56                  On 29 August 2002 the Deputy Director of Human Resources wrote to the appellant:

‘As the Deputy Director: Human Resources it is my responsibility to manage the special entry process for students with disabilities as required under the University of South Australia’s Policy for Students with Disabilities.  I am thus responding to your application for special entry consideration.

As requested by Justene Knight on Friday 2 August 2002 in an email entitled re your application for special entry consideration into an MBA, you have provided verification of your disability.  I refer to the 4 February 2002 report from your treating practitioner Dr Carmine De Pasquale.

The special entry process requires me to consider the nature of your disability, its educational impact and the inherent requirements of the program to which you are applying to study.  I have investigated the inherent requirements of the Master of Business Administration (MBA).  The Head of School, Professor Helen Thorne, has informed me that group work with colleagues is an inherent requirement of this program.  The reason group work is an inherent requirement is because one of the key outcomes of the MBA is the development of team skills, which are a fundamental prerequisite to managing effectively in the contemporary business environment.  To this end, group work is a substantial and essential component of the MBA program offered at the University of South Australia.  I have attached a word-version copy of the MBA brochure, which outlines the importance of group work to this program.  This information is also available on the University of South Australia web site at http://business.uniso.edu.au/igsm/local/mba/ mba.htm.

The information your treating practitioner has provided indicates that you would have difficulty meeting the inherent requirement of working in groups.  I quote the 4 February 2002 letter from De Pasquale and the 22 May 2002 practitioners report and verification and impact statement filled in by De Pasquale:

·           Although Mr Rana’s daily functioning is not impaired, his social functioning is very impaired.

       (Pasquale 4 February 2002)

·           Due to his [Rana’s] condition, he would find it difficult to participate is [sic] group activities.

(Pasquale 22 May 2002)

Taking into consideration both the information provided by your treating practitioner in relation to the educational impact of your disability and the inherent requirements of the program I am declining your request for a special entry process to take place.

I trust this response is clear.’

57                  It would seem, on the evidence which the parties have adduced, that the appellant was refused special entry before he had been declined entry on his ordinary application because Professor Thorne wrote to him on 20 September 2002 in the following terms:

‘Dear Mr Rana

I am sorry to inform you that you have not been successful in your application for a place in the MBA (or Graduate Diploma).

As stated on our website “Applications are carefully reviewed by a panel of IGSM academic and consulting staff to ensure that the whole student group will interact for a high quality learning experience.  The MBA is an interactive learning process and is structured so that you have significant opportunities to learn from student peers.”  Given the medical evidence currently available to the University and the various interactions you have had with the IGSM, particularly by email, I am not convinced of your ability to participate effectively in group work to ensure a high quality learning experience, and of your ability to learn from your student peers.

I have received a copy of the two reports from Dr Julianne Schliebs, RAH, Emergency Department and note her conclusion that you are “medically fit to continue working in the group setting for his (your) study”.  However the diagnosis (“Other soft tissue disorder – musculoskeletal, connective tissue) seems to relate to your physical rather than psychiatric condition.  Indeed I note in her report to your General Practitioner, Dr Schielbs [sic] states that your musculoskeletal condition may have been precipitated by stress related to your study group and that you may require continued support in terms of your anxiety and depression.

I notice, in your email of 14 September, your suggestion that completion of the Graduate Certificate in Management at Adelaide University provides conclusive evidence of your ability to participate effectively in group work.  I agree that your experience in this program will provide an indication of your group skills.  With you [sic] written permission, I would like to discuss your group work performance with the Associate Dean – Academic in the Adelaide Graduate Business School.

I am also concerned about your referees’ reports and would like to explore further with your referees their views on your suitability to participate in the MBA (or Graduate Diploma).

To summarise, on the evidence available to me at this stage, I am unable to offer you a place in the MBA or Graduate Diploma programs.  I will advise you if there is any change to this situation.’

58                  The appellant’s evidence is that he is able to participate in group work and the refusal to accept him as an ordinary candidate and as a special entry candidate is an act of discrimination based upon his race and mental disability.

The Response to the Appellant’s Application

59                  On 22 September 2003, the respondent filed its response to the appellant’s application in which it sought the following orders:

‘1.        That the Applicant’s application be dismissed as against the Respondent on the ground that no reasonable cause of action has been pleaded.

2.         That the Applicant pay the Respondent’s costs.’

60                  On the same day, in compliance with r 4.05, it filed an affidavit.  Rule 4.05 does not require the party (whether applicant or respondent) to be the deponent to the affidavit.  It merely requires the applicant and the respondent to file ‘an affidavit stating the facts relied on’.

61                  In this case, the deponent was a solicitor employed by the respondent’s solicitors.  She exhibited a number of documents to her affidavit which speak for themselves.

62                  Of course, the content of her affidavit was entirely hearsay and would, if the application had not been an interlocutory one, be inadmissible.

63                  It is appropriate to give two examples of the matters to which she deposed:

’16.      The applicant’s referee reports were of concern because:

16.1     it could not be assumed that the referees who prepared reports in support of the applicant’s application to study at Adelaide University also supported his application to study at UniSA; and

16.2     when referee reports were provided on appropriate UniSA forms, these referees were uncontactable.  When Professor Thorne asked the applicant what she should do to contact his referees, the applicant responded by claiming he was unable to provide referees because of his disability.

…

22.       UniSA remains unsatisfied that the applicant is capable of managing the group work which is an inherent requirement of the MBA or Graduate Diploma courses.’

64                  Both paragraphs 16 and 22 contain broad sweeping statements which are of particular importance in this matter.

65                  Hearsay evidence is admissible in interlocutory applications, but only if the party adducing that evidence also adduces evidence of its source.  Whilst the deponent has exhibited a number of documents to her affidavit, which as I have said speak for themselves, she has not disclosed the source of her hearsay evidence.  All she has said is:

’32.      I know the facts deposed to herein of my own knowledge except where otherwise appears.’

66                  It is plain that she has no knowledge of the facts contained in the affidavit.  She was obliged, and failed, to identify the source.

67                  In my opinion, much of the content of her affidavit is inadmissible.

The Application before the Federal Magistrate

68                  The respondent’s application was for summary dismissal pursuant to r 4.04(1)(c) and r 13.10(a).  Rule 4.04(1)(c) permits a respondent’s response to ask the Court to dismiss the application.

69                  Rule 13.10 provides:

‘RULE 13.10  FRIVOLOUS PROCEEDINGS

13.10   The Court may order that a proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding, if it appears to the Court that in relation to the proceeding or claim for relief:

(a)   no reasonable cause of action is disclosed; or

(b)   the proceeding is frivolous or vexatious; or

(c)   the proceeding is an abuse of the process of the Court.’

70                  The rule is in similar terms to O 20 r 2(1) of the Federal Court Rules which provides:

‘      2   (1)   Where in any proceeding it appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding—

(a)   no reasonable cause of action is disclosed;

(b)   the proceeding is frivolous or vexatious; or

(c)   the proceeding is an abuse of the process of the Court;

the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding.’

71                  The authorities under O 20 r 2(1) of the Federal Court Rules are relevant on a consideration of an application under r 13.10 of the Federal Magistrates Rules, although regard must be had to the very important differences to which I have already referred.

72                  It is clear that an application under the Federal Court Rules for the summary dismissal of a proceeding will only succeed in the clearest of cases: Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 per Dixon J.  A court must proceed exceptionally cautiously.  In General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129, Barwick CJ said:

‘It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action—if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal—is clearly demonstrated.  The test to be applied has been variously expressed; “so obviously untenable that it cannot possibly succeed”; “manifestly groundless”; “so manifestly faulty that it does not admit of argument”; “discloses a case which the Court is satisfied cannot succeed”; “under no possibility can there be a good cause of action”; “be manifest that to allow them” (the pleadings) “to stand would involve useless expense”.

            At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or “so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument”; “so to speak apparent at a glance”.’

73                  The need for caution must be even more obvious in the Federal Magistrates Court when considering an application to summarily dismiss a claim for failing to disclose a reasonable cause of action.  That is for the reasons already mentioned.  There are no pleadings.  There is, therefore, no concise document from which one can easily discern the existence or otherwise of a cause of action.  The applicant is not obliged to file all affidavit evidence with the application, but only an affidavit which need not be the applicant’s.  It could not have been intended that an application under r 13.10 would give rise to an obligation upon the applicant to produce all of the applicant’s evidence in order to determine whether the applicant could disclose a reasonable cause of action.  If that were the obligation, the hearing of the application would almost become the trial.

74                  The Court, on hearing an application under FMC Rules 4.04(1)(c) and 13.10, could not be expected to weigh the evidence of the parties to determine whether the applicant had disclosed a reasonable cause of action.  Again, that would amount to a trial of the action.  What the applicant must disclose is a reasonable cause of action – not that on the evidence presently available the applicant will succeed on that cause of action.

75                  In my view, because the FMC Rules do not require pleadings; the parties are not obliged to tender all their evidence when the application and response is filed; there are few, if any, interlocutory processes available; and the Federal Magistrates Court is a low cost court, the Federal Magistrates Court should be very cautious about summarily dismissing an applicant’s proceeding.  That course should only be adopted when it is clear, beyond any doubt, that the applicant has not, and cannot, articulate in writing a reasonable cause of action.  As I have already said, the philosophy of the Federal Magistrates Court is to provide inexpensive justice and a streamlined dispute resolution process.  Litigants will often be self-represented and the documents they rely on as founding their claim will no doubt often be imprecisely articulated.  In those circumstances, there is even more reason for the Federal Magistrates Court to be cautious before summarily dismissing an applicant’s claim.

76                  The Federal Magistrate, on the hearing of the appellant’s application, accepted that the factual background to the matter was most clearly set out in the decision letter from the Human Rights and Equal Opportunity Commission dated 1 August 2003 and said:

‘… I am satisfied that the history contained in this letter includes all the factors that would be relevant for consideration of a claim based (however loosely) on an alleged breach of either the Disability or the Racial Discrimination Act.’

77                  In my opinion, that approach was in error.

78                  It was not appropriate on this application to make any determination of the facts.

79                  In my opinion, the Federal Magistrate was led into error by the way in which the respondent pursued its application to strike out the appellant’s claim.  The respondent relied upon the evidence contained in the solicitor’s affidavit to establish that the appellant’s claim lacked merit.  The true inquiry is not whether the appellant’s claim lacked merit, but whether the appellant’s claim failed to disclose a reasonable cause of action.

80                  There was, indeed, evidence to support the appellant’s contention that he was able to do group work.  His treating psychiatrist had advised the University that it was his opinion that the appellant was in a position to involve himself in group work.  That opinion was offered on 20 September 2002, subsequent to the University’s advice that the appellant’s application for special entry into the course was declined and on the same day that the University advised the appellant that his ordinary entry was also declined.

81                  The evidence also discloses that Professor Thorne wrote again to the appellant’s treating psychiatrist after that date asking for further clarification of the matters raised in his opinion of 20 September and received a further reply from the treating psychiatrist of 11 November 2002.

82                  There is no evidence as to how that further reply was treated by the University, either in relation to the ordinary application or the special entry application.

83                  I only mention those matters for the purpose of showing that there was a real conflict on the evidence as to whether the appellant was capable of carrying out group work which the course demanded of its candidates.  That matter could not be resolved on the application before the Federal Magistrate but the conflict was not a reason to dismiss the appellant’s application.

84                  In my opinion, the Federal Magistrate erred in accepting the respondent’s invitation to summarily dismiss this matter.

85                  At the very least, if the Federal Magistrate was unsatisfied with the quality of the affidavit evidence supporting the appellant’s application, he should have allowed the appellant a further opportunity to adduce evidence to show a reasonable cause of action.

86                  Instead, he simply struck out the whole of the matter.

87                  In my opinion, the appellant has shown that the decision complained of is wrong.  In those circumstances, there should be an order extending the time within which the appellant has to apply for leave to appeal.  There should be an order granting the appellant leave to appeal.  The appeal should be allowed and the matter remitted to the Federal Magistrates Court for hearing.

88                  I therefore make the following orders:

1.         The time within which the appellant might apply for leave to appeal is extended to 3 February 2004.

2.         Leave to appeal from the order of the Federal Magistrate made on 21 November 2003 is granted.

3.         The appeal is allowed.

4.         The matter be remitted to the Federal Magistrates Court for further hearing.

Associate:

Dated:              7 May 2004