FEDERAL COURT OF AUSTRALIA

Rana v University of South Australia [2008] FCA 1903

BANKRUPTCY – stay of actions upon bankruptcy – exception for “personal injury or wrong done to the bankrupt” – whether disability discrimination claim within exception

Held: disability discrimination claim not stayed upon bankruptcy – constitutes “personal injury or wrong done to the bankrupt”.

PRACTICE AND PROCEDURE – summary dismissal – abuse of process – relitigation of events subject of earlier proceeding – where disability discrimination claim not able to be brought in earlier proceeding due to complaint made to HREOC being on foot

Held: disability discrimination claim dismissed as abuse of process – applicant chose to lodge HREOC complaint and file Federal Court proceeding when he did and did not advise Court of HREOC proceeding for some time.

PRACTICE AND PROCEDURE – summary dismissal – no reasonable prospect of success – disability discrimination claim – no allegation of disability in statement of claim – no allegation of less favourable treatment

Held: disability discrimination claim dismissed as having no reasonable prospect of success.  

Bankruptcy Act 1924-1933 (Cth) s 63

Bankruptcy Act 1966 (Cth) s 60

Disability Discrimination Act 1992 (Cth) ss 4, 5, 6, 10, 22, 24

Fair Trading Act 1987 (SA)

Federal Court of Australia Act 1976 (Cth) s 31A

Federal Magistrates Court Rules 2001 (Cth) r 8.02

Federal Court Rules O 20 r 5

Human Rights and Equal Opportunity Commission Act 1986 (Cth) ss 3, 46PH, 46PO

Misrepresentation Act 1972 (SA)

Trade Practices Act 1974 (Cth) ss 52, 82, 87  

Brock v Minister for Home Affairs (2008) 170 FCR 434 applied

Commonwealth Bank of Australia v Taylor [2008] VSC 3 referred to

Coffey v Secretary, Department of Social Security (1999) 86 FCR 434 applied

Cox v Journeaux (No 2) (1935) 52 CLR 713 referred to

Johnson v Johnson (2000) 201 CLR 488 referred to

Livesey v The New South Wales Bar Association (1983) 151 CLR 288 referred to

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 applied

Rana v University of South Australia [2007] FCAFC 188 referred to

Rana v University of South Australia [2007] FCA 816 referred to

Rana v University of South Australia (No 2) [2007] FCA 941 referred to

Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 applied

Sydney Refractive Surgery Centre Pty Ltd v Federal Commissioner of Taxation (2007) 68 ATR 19 referred to

SZAJB v Minister for Immigration and Citizenship (2008) 168 FCR 410 applied

Walton v Gardiner (1993) 177 CLR 378 applied

Wilson v United Counties Bank Ltd [1920] AC 102 referred to

RANJIT RANA v UNIVERSITY OF SOUTH AUSTRALIA  and HELEN MCIVER

SAD 32 of 2007

BESANKO J

17 DECEMBER 2008

ADELAIDE

THE COURT ORDERS THAT:

1.                  The proceeding be dismissed.

2.                  The applicant pay the respondents’ costs of the proceeding.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                                             On 19 October 2006, Mr Ranjit Rana issued a proceeding against the University of South Australia (“the University”) and Ms Helen McIver in the Federal Magistrates Court of Australia. Ms McIver is an employee of the University and, in March 2006, she held a position described as School Executive Officer in the School of Management. In the proceeding the applicant makes a number of claims including a claim that he has been subjected to unlawful discrimination within the Disability Discrimination Act 1992 (Cth) (“DD Act”) by the respondents.

2                                             On 23 November 2006, the proceeding was transferred to this Court by order of the Federal Magistrates Court made pursuant to r 8.02(1) of the Federal Magistrates Court Rules 2001 (Cth).

3                                             In the application now before me the respondents apply for an order that the proceeding be dismissed on the ground that it is frivolous or vexatious or an abuse of the process of the Court. The Court’s power to make such an order is contained in O 20 r 5 of the Federal Court Rules. In addition, or in the alternative, the respondents apply for judgment against the applicant on the ground that the applicant has no reasonable prospect of successfully prosecuting the proceeding. The Court’s power to make such an order is contained in s 31A of the Federal Court of Australia Act 1976 (Cth) (“Federal Court of Australia Act”).

The applicant’s claim

4                                             The applicant’s claim against the respondents arises out of events which took place on Monday, 27 March 2006. On that day, the first respondent held an event at the Adelaide Convention Centre. The second respondent was present at the event in her capacity as an employee of the first respondent. The event was called a “Hypothetical” and it involved a discussion by selected persons of the prospects of Australian businesses exporting wine to the Asian market. I will refer to the event as the Hypothetical. The Hypothetical was to be conducted from 6.30 pm to 8.30 pm, or thereabouts, and there were to be “drinks and nibbles” from 5.30 pm. Entry to the Hypothetical was by way of the purchase of a ticket. The Hypothetical was advertised in The Australian newspaper published on 27 March 2006. The applicant decided to attend the Hypothetical. He went to the Convention Centre at about 5.00 pm. He had a brief conversation with the second respondent. She refused to allow him to attend the Hypothetical.

5                                             The applicant claims he has a number of causes of action against the respondents arising out of the events of 27 March 2006. They are set out in an amended statement of claim dated 7 January 2008. The applicant represents himself, and the amended statement of claim was prepared by him. It has to be said that it is by no means easy to follow. Doing the best I can, I summarise the allegations made in the amended statement of claim in the following way.

1.         There is a group of allegations directed to establishing a claim under s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“HREOC Act”) based on unlawful discrimination under the DD Act. The unlawful discrimination is said to be constituted by conduct of the second respondent acting for the first respondent on 27 March 2006. The applicant claims that mental and physical conditions that he has were aggravated by the “incident” and he seeks damages of $1 million, an apology and an injunction. The group of allegations also contains allegations about what is said to be the manipulation of electronic messages by the respondents. Those allegations appear to be quite irrelevant to the claim based on unlawful discrimination.

I will refer to this claim as the claim for unlawful discrimination, and the four claims described below as the other claims.

2.         There is a group of allegations directed to establishing a claim based on breaches of various sections of the Fair Trading Act 1987 (SA). It is alleged that the second respondent, acting for the first respondent, engaged in deceptive conduct in trade and commerce. The conduct involved the second respondent giving false advice to a security officer and banning the applicant from the Hypothetical. The claims for loss and damage are similar to those made in relation to the claim for unlawful discrimination, and again the group of allegations contains what appear to be irrelevant allegations about a document allegedly prepared in 2002 and the manipulation of electronic messages by the respondents.

3.         There is a group of allegations directed to establishing a claim based on a breach of a duty of care by the second respondent while acting, it is said, for and on behalf of the first respondent. It is not necessary to set out the details; they are broadly to the same effect as earlier allegations.

4.         There is a group of allegations directed to establishing a claim based on breaches of a deed of settlement between the applicant and the first respondent, allegedly executed on 2 March 2006. Again, it is the conduct of the second respondent acting for the first respondent on 27 March 2006 which is alleged to have given rise to breaches of the deed of settlement. Again, it is not necessary to set out the details; they are broadly to similar effect as earlier allegations.

5.         There is a group of allegations directed to establishing a claim in misrepresentation under the Misrepresentation Act 1972 (SA). It is alleged that the second respondent, acting for and on behalf of the first respondent, made false representations to a security officer on 27 March 2006. Again, it is unnecessary to set out any further details.

6                                             The respondents submit that none of these claims are maintainable at law, but, in any event, they submit that the proceeding is an abuse of process because the events of 27 March 2006 were the subject of an earlier unsuccessful claim by the applicant against the first respondent. In light of the respondents’ submissions, it is necessary to set out some of the history of the earlier proceeding and of the present proceeding.

The earlier proceeding

7                                             On 28 March 2006, being the day after the Hypothetical, the applicant issued a proceeding in this Court claiming damages against the first respondent under s 82 of the Trade Practices Act 1974 (Cth), and an injunction under s 87 of the Act, based on an alleged contravention of s 52 of the Act and damages based on an alleged breach of contract. The basis of the claims was conduct by the respondent through its servants and agents, including the second respondent to the present proceeding, in connection with the Hypothetical held on 27 March 2006.

8                                             The trial of the earlier proceeding was held on 5 and 6 October 2006. On 31 May 2007, I made an order that the proceeding be dismissed and I delivered reasons for judgment: Rana v University of South Australia [2007] FCA 816. I will refer to those reasons as the earlier judgment.

9                                             One point to note, and the relevance of this will become apparent, is that in the course of the earlier judgment I said (at [4]) that I found the applicant “a most unsatisfactory witness” and that I did not accept his evidence except where it accorded with other evidence which I accepted. I said that the applicant’s evidence as to important events changed during the course of the proceeding, that some of his evidence was highly improbable and a good deal of his evidence was inconsistent with evidence which I accepted.

10                                          On 19 June 2007, I made an order that the applicant pay the respondent’s costs of the proceeding on an indemnity basis: Rana v University of South Australia (No 2) [2007] FCA 941. I said the following (at [6]):

In my opinion, this is an appropriate case for the award of indemnity costs. Mr Rana made allegations about payment for the tickets and what occurred at the Convention Centre which were critical to his case and he must have known were untrue. Those allegations should not have been made. He claimed that he had suffered loss and damage of $1 million but he proved no loss or damage. He altered a document, namely, a receipt, so that his case would appear stronger. These circumstances alone justify an award of indemnity costs. A further and probably independent reason for awarding indemnity costs is that he refused an offer of $400 in relation to a claim which I dismissed. In all the circumstances, it is appropriate to order that costs be paid on an indemnity basis.

11                                          The applicant lodged an appeal against the order I made dismissing the proceeding but, on 4 December 2007, the Full Court of this Court dismissed the appeal and ordered that the appellant in the appeal pay the respondent’s costs thereof: Rana v University of South Australia [2007] FCAFC 188.

12                                          The applicant then applied to the High Court for special leave to appeal against the orders made by the Full Court but, on 15 May 2008, that application was dismissed.

13                                          One other point to note about the earlier proceeding is this. Before the present proceeding was instituted, the applicant made a complaint about the respondent’s conduct to the Human Rights and Equal Opportunity Commission (“the Commission”) (as it then was). In the course of a directions hearing in the earlier proceeding held on 14 July 2006, I fixed 17 and 18 August 2006 for the trial of the earlier proceeding. Those dates were subsequently vacated and, as I have said, the proceeding was heard on 5 and 6 October 2006. The point to be made is that at the directions hearing held on 14 July 2006, the applicant said that he had a complaint of “disability discrimination on the same fact by the University”. He said that the complaint had been lodged with the Commission. He said that the first respondent had asked for an extension of time to respond. The applicant raised the possibility of the proceeding then before the Court (that is, the earlier proceeding) being delayed so that it could be dealt with at the same time as any proceeding following the applicant’s complaint to the Commission. In response, counsel for the first respondent said:

Your Honour, we sought an extension of time from the Human Rights Commission.  Perhaps we ought more properly have explained to them that these proceedings were on foot because, as I understand it, that would forestall the progression of any complaint stage in the Commission, and that is their policy, that is my understanding of their policy.  The matter is only at the complaint stage; no proceedings have been issued.

…

… as I understand it the complaint stage needs to be worked through the Commission and examined by the Commissioner before formal proceedings are able to be initiated.  We have undertaken mediation unsuccessfully.  I think that the parties are some great difference apart in terms of the legal basis of the claim, but the mediation did crystallise some of the issues and we would seek that the matter be brought to trial as expeditiously as possible because we see that the trial is the only way to resolve those matters.

14                                          The complaint was not put before me, and the submissions did not proceed beyond what I have set out. I decided to fix 17 and 18 August 2006 as the dates for the trial of the earlier proceeding.

The present proceeding

15                                          I have already summarised the nature of the allegations made in the present proceeding (at [5]). It is necessary to say something about the history of the present proceeding.

16                                          Approximately two weeks after I conducted the trial in the earlier proceeding, the applicant lodged his application in the Federal Magistrates Court of Australia, thereby commencing the present proceeding. As I have said, that proceeding was transferred to this Court by order of the Federal Magistrates Court made on 23 November 2006. In his application, he claimed “disability discrimination and the treatment less than favourably”. The documents annexed to the applicant’s application reveal the following history:

1.         The applicant lodged a complaint with the Commission on 20 April 2006 in which he complained about the respondents’ conduct. He alleged that he had been discriminated against because he had a disability. His complaint contains the following allegations:

On 27/3/2006, I went to a public forum called “Hypotheticals” organised by the Uni. I went to the Adelaide Convention Center [sic] and was banned by Helen McIver for being a troublemaker.

The applicant claimed an apology and compensation. In his online complaints form, the applicant said:

I was told by Hellen [sic] McIver that I was banned permanently as a decision by the Business Division. I was invited by the University’s Student Association of Marketing. Also that it was advertised in The Australian for the benefit of the public in how to do business in China and I had a legitimate expectation to go there in to [sic] network with important people and meet my old school friend … .

I was forced to quit the place as security guards led me away and the security camera has captured the moments.

I told them I have diabetes and that they should atleast [sic] let me go to the toilet. They called the police with a dog to scare me off.

2.         On 16 October 2006, a delegate of the President issued a notice of termination of the complaint under s 46PH(2) of the HREOC Act. The notice contained the following statement:

This complaint alleging disability discrimination and victimisation under the Disability Discrimination Act 1992 has been terminated pursuant to section 46PH(1)(i) of the Act on the ground that I am satisfied that there is no reasonable prospect of the matter being settled by conciliation.

17                                          Full reasons for the delegate’s decision were said to be contained in a letter to the applicant also dated 16 October 2006. In that letter, the delegate said the following:

You state that you have a disability, diabetes. You claim that on 27 March 2006 you attended a public forum held at the Convention Centre called “hypothetical” which was organised by the University. You allege that you were refused entry by Ms Helen McIver for being a ‘troublemaker” for example complaining to this Commission. You allege that Ms McIver would not allow you to go to the toilet and that she asked security guards to escort from the premises [sic]. You claim that the reason for the refusal was due to having lodged a previous complaint against the University with this Commission.

Response:

The University response does not address the substantive issues in the complaint. The University claims that the subject matter of your complaint is the subject of proceedings in the Federal Court. It claims that in relation to the same incident you are claiming damage for breach of conduct [sic], misleading and deceptive conduct pursuant to the Trade Practices Act and in tort.

The University made submissions that the complaint be terminated under sections 46PH(d) and/or (e) [sic] of the HREOCA.

My Decision

I am not satisfied that the subject matter of this complaint is the same subject matter of the current proceedings in the Federal Court and given this I am do not think [sic] it is appropriate to terminate the complaint under sections 46PH(d) or (e) [sic] of the HREOCA. However, I have decided to terminate the complaint pursuant to s 46PH(1)(i) of the HREOCA as I am satisfied that there is no reasonable prospect of the matter being settled by conciliation.

18                                          During 2007 I held a number of directions hearings in the present proceeding but the proceeding was not progressed pending the outcome of the appeal to the Full Court of this Court against the order dismissing the earlier proceeding.

19                                          I held a directions hearing in the present proceeding on 23 January 2008 after the Full Court of this Court had handed down its decision dismissing the appeal in the earlier proceeding. I was told that the applicant had made an application to the High Court for special leave to appeal against the Full Court’s orders. Although I ultimately adjourned the matter, I did raise with the parties at that time the question of whether either or both of them would be submitting that I was disqualified from hearing the present proceeding. The applicant said that I had not accepted him as a credible witness. He referred to the fact that the respondents were seeking summary dismissal of the present proceeding and that, if that involved a question of law, “you can sit in a question of law”.

20                                          I held a directions hearing in the present proceeding on 5 August 2008. I was told that the applicant’s application to the High Court for special leave to appeal had been dismissed. Counsel for the respondents outlined the basis upon which he would be putting his submission that there ought to be an order under O 20 r 5 of the Federal Court Rules or s 31A of the Federal Court of Australia Act, or both. I again raised with the parties the question of whether either or both of them would be submitting that I should disqualify myself from hearing the present proceeding. Initially the applicant said that he would leave it to me and he then said he would not object to me sitting. The respondents have never suggested that I should not sit.

21                                          I heard argument on the respondent’s application on 14 August 2008. Before that date, each party filed an outline of argument and, in his outline of argument, the applicant raised the possibility of me disqualifying myself. That led me to raise the question again with the applicant on 14 August 2008. The applicant said that he would, in effect, leave it to me.

22                                          Also on 14 August 2008, I was told that a sequestration order against the estate of the applicant had been made by the Federal Magistrates Court on the previous day. The parties made submissions on the effect of s 60 of the Bankruptcy Act 1966 (Cth) (“Bankruptcy Act”) on the present proceeding.

Issues on the application

23                                          There are two matters to be addressed before considering the substance of the respondents’ application.

24                                          The first relates to my involvement in the earlier proceeding. In the earlier proceeding I made serious credit findings against the applicant. In those circumstances, a question arose as to whether I should disqualify myself from hearing the present application on the ground of apprehended bias. The short answer to that question is no, because the applicant did not object to me sitting or ask me to disqualify myself and, in the circumstances, that was the decisive consideration. The circumstances to which I refer are that, although unrepresented, the applicant had full knowledge of the facts, namely, my involvement in the earlier proceeding and the nature of the present application. In addition, he had time for mature reflection, or even to obtain legal advice, as I raised the matter with him on a number of occasions.

25                                          An alternative ground for the conclusion that I should not disqualify myself from hearing the present application on the ground of apparent bias is this. The test for apparent bias is well-known and it is “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”: Johnson v Johnson (2000) 201 CLR 488 at 492 [11] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. In this case, if there is apparent bias, it takes the form of prejudgment. That form of bias was considered by the High Court in Livesey v The New South Wales Bar Association (1983) 151 CLR 288. In assessing that form of apparent bias in this case, the nature of the respondents’ application is important. The respondents’ application is not one in which I was called upon to make findings as to credit or, indeed, to make any findings of fact. The applicant’s allegations of fact may be accepted for the purposes of the respondents’ application. The questions raised by the respondents’ application are, in substance, questions of law, and, having regard to all the circumstances, I do not think it can be said that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the question I am required to decide: Sydney Refractive Surgery Centre Pty Ltd v Federal Commissioner of Taxation (2007) 68 ATR 19; Commonwealth Bank of Australia v Taylor [2008] VSC 3.

26                                          The second matter concerns the effect of the sequestration order made on 13 August 2008 on the present proceeding. The relevant provisions of the Bankruptcy Act are as follows:

60        Stay of legal proceedings

…

(2)        An action commenced by a person who subsequently becomes a bankrupt is, upon his or her becoming a bankrupt, stayed until the trustee makes election, in writing, to prosecute or discontinue the action.

(3)        If the trustee does not make such an election within 28 days after notice of the action is served upon him or her by a defendant or other party to the action, he or she shall be deemed to have abandoned the action.

(4)        Notwithstanding anything contained in this section, a bankrupt may continue, in his or her own name, an action commenced by him or her before he or she became a bankrupt in respect of:

(a)        any personal injury or wrong done to the bankrupt, his or her spouse or a member of his or her family; or

(b)        the death of his or her spouse or a member of his or her family.

27                                          The applicant submitted that the present proceeding was not stayed by operation of s 60(2) because the proceeding is an action “in respect of a personal injury or wrong done” to him within s 60(4). The applicant was not represented and he was not able to make detailed submissions in support of that contention. The respondents accepted the proceeding fell within s 60(4)(a) as far as it involved a claim for unlawful discrimination. They did not address the issue any further than that, although in the course of their submissions on the substantive application, they submitted that in so far as the proceeding involves other claims, the proceeding is stayed by operation of s 60(2) of the Bankruptcy Act.

28                                          In Cox v Journeaux (No 2) (1935) 52 CLR 713, Dixon J (as his Honour then was) considered the meaning of personal injury or wrong done to the bankrupt within s 63(3) of the Bankruptcy Act 1924-1933 (Cth). His Honour applied Wilson v United Counties Bank Ltd [1920] AC 102 and described (at 721) the relevant test in the following terms:

The test appears to be whether the damages or part of them are to be estimated by immediate reference to pain felt by the bankrupt in respect of his mind, body or character and without reference to his rights of property.

29                                          The applicant’s claim for unlawful discrimination seeks damages for physical and mental injury to the applicant and appears to satisfy the relevant test and therefore come within s 60(4)(a). On the face of it, as the same damage is claimed in relation to the other claims they also would come within s 60(4), but I have to say that I have not had the benefit of the type of submissions which would enable me to feel confident in reaching that conclusion. Furthermore, there is another point; there seems to be a prior question in relation to the other claims which was not addressed in submissions, namely, whether it is reasonably arguable that the loss and damage claimed is the type of loss and damage which can be recovered in respect of those causes of action.

30                                          In the result, it seems to me that the claim based on unlawful discrimination is within s 60(4)(a); the other claims may or may not be but, in any event, for reasons I will give they must be dismissed because the pursuit of them constitutes an abuse of process.

31                                          I turn now to the respondents’ application and I start with the other claims.

32                                          Save and except for the alleged breaches of the deed of settlement (see the earlier judgment at [15]), all the causes of action in the present proceeding are different from those advanced in the earlier proceeding. Nevertheless, all the causes of action are based on the conduct of the second respondent acting for the first respondent on 27 March 2006 and its aftermath. The doctrine of res judicata may apply in relation to the cause of action in the present proceeding based on breaches of the deed of settlement but it does not apply to the other causes of action in the present proceeding. The doctrine of issue estoppel in the strict sense may apply to those causes of action, although it is difficult to be at all certain because of the lack of coherence in the applicant’s pleadings in the present proceeding. The extended doctrine of issue estoppel as articulated in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 (“Anshun estoppel”) certainly applies in relation to all of the other claims and there is no reason they could not have been brought in the earlier proceeding. In the circumstances, the pursuit of the other claims is an abuse of process.

33                                          I turn now to consider the claim for unlawful discrimination.

34                                          In his amended statement of claim, the applicant alleges breaches or contraventions by the respondents of ss 5, 6, 22 and 24 of the DD Act. Section 22(1) plainly does not apply because, on any view, the alleged discrimination is not of a type which falls within the terms of that subsection. Subsection (2) provides:

            It is unlawful for an educational authority to discriminate against a student on the ground of the student’s disability or a disability of any of the student’s associates:

(a)        by denying the student access, or limiting the student’s access, to any benefit provided by the educational authority; or

(b)        by expelling the student; or

(c)        by subjecting the student to any other detriment.

35                                          I note that there is no allegation in the statement of claim to the effect that the applicant was a student of the first respondent. Section 24 of the DD Act provides as follows:

24        Goods, services and facilities

(1)        It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person’s disability or a disability of any of that other person’s associates:

(a)        by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or

(b)        in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or

(c)        in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.

36                                          The applicant alleges that he was refused entry to the Hypothetical in circumstances where he had presented himself at the entrance of the venue and offered to pay for a ticket or tickets. The thrust of his allegations as set out in his amended statement of claim is that he was refused entry to the Hypothetical because he was considered to be a “troublemaker”. There is no clear allegation in the amended statement of claim or in any of the affidavits filed by the applicant in the proceeding (and he has filed five affidavits) that he was refused access to either the venue or a toilet at the venue because of a disability.

37                                          Sections 5 and 6 of the DD Act contain definitions of disability discrimination and are in the following terms:

5          Disability discrimination

(1)        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, because of the aggrieved person’s disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.

(2)        For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability.

6          Indirect disability discrimination

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; and

(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.

38                                          Section 10 of the DD Act provides that:           

If:

            (a)        an act is done for 2 or more reasons; and

(b)        one of the reasons is the disability of a person (whether or not it is the dominant or a substantial reason for doing the act);

then, for the purposes of this Act, the act is taken to be done for that reason.

39                                          The term “disability” is defined in s 4 of the DD Act in the following terms:

disability, in relation to a person, means:

(a)        total or partial loss of the person’s bodily or mental functions; or

(b)        total or partial loss of a part of the body; or

(c)        the presence in the body of organisms causing disease or illness; or

(d)        the presence in the body of organisms capable of causing disease or illness; or

(e)        a malfunction, malformation or disfigurement of a part of the person’s body; or

(f)        a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or

(g)        a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;

and includes a disability that:

(h)        presently exists; or

(i)         previously existed but no longer exists; or

(j)         may exist in the future; or

(k)        is imputed to a person.

40                                          This claim for unlawful discrimination is not a claim which could have been raised in the earlier proceeding because the earlier proceeding were heard on 5 and 6 October 2006 and the complaint made to the Commission was not terminated until 16 October 2006. The right to make an application to the Federal Court or the Federal Magistrates Court alleging unlawful discrimination by one or more of the respondents to a complaint only arises when the complaint has been terminated by the President, and the President has given notice of the termination: HREOC Act s 46PO(1). Subsections (3) and (4) of s 46PO should also be noted; they provide respectively that there must be a correlation between the unlawful discrimination alleged in the application and the unlawful discrimination alleged in the complaint, and for the type of orders a court may make if satisfied there has been unlawful discrimination.

41                                          “Unlawful discrimination” is defined in s 3 of the HREOC Act to mean any “acts, omissions or practices” that are unlawful under certain pieces of legislation, including Pt 2 of the DD Act.

42                                          There are two independent grounds upon which I conclude that the pursuit of the claim for unlawful discrimination is an abuse of process.

43                                          First, in my opinion, to relitigate the events of 27 March 2006 is an abuse of process and the pursuit of the claim for unlawful discrimination would involve a relitigation of the events of 27 March 2006. The Court has a wide jurisdiction to protect a party from an abuse of process constituted by an attempt to relitigate a case already disposed of: Walton v Gardiner (1993) 177 CLR 378 at 392-393 per Mason CJ, Deane and Dawson JJ. It seems clear on the authorities that a proceeding may constitute an abuse of process because it involves an attempt to relitigate a dispute already judicially determined even though none of the doctrines of res judicata, issue estoppel in the strict sense or an Anshun estoppel are made out: Coffey v Secretary, Department of Social Security (1999) 86 FCR 434 at 443 [25]; Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 at [58]-[70] per French J; SZAJB v Minister for Immigration and Citizenship (2008) 168 FCR 410 at 423 [37]-[39] per French J (with whom Tracey J agreed at 437 [114]); Brock v Minister for Home Affairs (2008) 170 FCR 434 at 447 [74] per Lindgren and Tracey JJ. The claim for unlawful discrimination represents an attempt to relitigate the events of 27 March 2006 and is an abuse of process. I am mindful of the fact that, as events transpired, the claim for unlawful discrimination could not have been brought in the earlier proceeding, but that does not dissuade me from reaching the conclusion that I have expressed. The fact is that it was the applicant who decided to institute the earlier proceeding the day after the relevant events, to lodge his complaint with the Commission about three weeks after the relevant events, and to wait until 14 July 2006 before advising the Court that he had lodged a complaint with the Commission.

44                                          The other independent ground for dismissing the claim for unlawful discrimination is that, in my opinion, the applicant has no reasonable prospect of successfully prosecuting the claim. There is no allegation of a disability in the statement of claim, nor is there an allegation that the applicant was treated less favourably than a person without a disability. The fact that the applicant was refused entry to the Hypothetical because he was considered to be a troublemaker does not give rise to unlawful discrimination within s 22 and s 24 of the DD Act.

45                                          This is not a case in which it would be appropriate to give the applicant leave to re-plead because in all the material filed by the applicant there is no suggestion that the applicant has a reasonably arguable case of unlawful discrimination.

46                                          In my opinion, the proceeding must be dismissed.

Conclusion

47                                          The proceeding must be dismissed and the applicant must pay the respondents’ costs of the proceeding.

Associate:

Dated:         17 December 2008