FEDERAL COURT OF AUSTRALIA

Robinson v NSW Police Service [2011] FCA 1081

THE COURT RULES THAT:

1.    The following paragraphs of the following affidavits be rejected:

(a)    Affidavit of David Robinson sworn 2 June 2011

(i)    Paragraphs 16 to 19;

(ii)    Paragraphs 33 to 34;

(iii)    Paragraphs 35 to 36;

(iv)    Paragraphs 44 to 51;

(v)    Paragraph 52 to 68 and 127 to 128;

(vi)    Paragraphs 69 to 72;

(vii)    Paragraphs 73 to 83 and 124 to 125;

(viii)    Paragraphs 84 to 85;

(ix)    Paragraphs 86 to 87;

(x)    Paragraphs 88 to 89;

(xi)    Paragraphs 90 to 94 and 126;

(xii)    Paragraphs 95 to 96;

(xiii)    Paragraphs 97 to 98;

(xiv)    Paragraphs 99 to 100;

(xv)    Paragraphs 101 to 102;

(xvi)    Paragraphs 103 to 104;

(xvii)    Paragraphs 105 to 115;

(xviii)    Paragraphs 120 to 123;

(xix)    Paragraph 129; and

(xx)    Paragraph 131.

(b)    Affidavit of Sonia El Masri sworn 4 April 2011

(i)    Paragraphs 5 to 7; and

(ii)    Paragraphs 10 to 14.

(c)    Affidavit of Sonia El Masri sworn 23 May 2011

(i)    Whole affidavit.

(d)    Affidavits of Sally Neighbour sworn 8 April 2011 and 17 May 2011

(i)    Each affidavit.

2.    The following paragraphs of the following affidavits be admitted into evidence, subject to the limitation that, in each case, the evidence as given is to stand as a submission and not as evidence of the fact or facts asserted:

(a)    Affidavit of David Robinson sworn 2 June 2011

(i)    Paragraph 2;

(ii)    Paragraph 15;

(iii)    Paragraph 20;

(iv)    Paragraphs 30 to 32; and

(v)    Paragraphs 37 and 39.

(b)    Affidavit of Sonia El Masri sworn 4 April 2011

(i)    Paragraphs 3 and 4;

(ii)    Paragraphs 8 and 9; and

(iii)    Paragraph 15.

3.    The following paragraphs of the affidavit of David Robinson sworn 2 June 2011 be admitted into evidence, subject to the limitation that the evidence as given be confined to the subject of the terminated complaint:

(a)    Affidavit of David Robinson sworn 2 June 2011

(i)    Paragraph 4; and

(ii)    Paragraphs 21 to 23.

4.    The following paragraphs of the affidavit of David Robinson sworn 2 June 2011, to which objection has been taken, be admitted into evidence:

(a)    Affidavit of David Robinson sworn 2 June 2011

(i)    Paragraph 3 (other than the references to paragraphs 3, 4, 6 and 7 of the points of claim);

(ii)    Paragraphs 7 to 11;

(iii)    Paragraphs 116 to 119;

(iv)    Paragraph 130; and

(v)    Paragraph 132.

5.    The medical reports proposed to be relied upon by the applicants, which they have identified pursuant to orders made on 9 February 2011, be admitted into evidence.

THE COURT:

6.    GRANTS leave to the applicants to file amended points of claim limited to alleged unlawful discrimination that is the same as (or the same in substance as) the alleged unlawful discrimination that is the subject of the complaint terminated by the Australian Human Rights Commission by notice given on 1 September 2010, or that arises out of the same (or substantially the same) acts, omissions or practices that are the subject of that complaint.

7.    NOTES that a referral certificate under rule 4.12 of the Federal Court Rules 2011 will be issued.

Note:    Settlement and entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR RULINGS

1    This matter is currently before me to rule on the admissibility of certain paragraphs of the affidavit evidence to be read in support of the applicants’ case and on other evidence. The applicants are unrepresented.

2    At an earlier case management conference I made an order providing for the filing and service of affidavit evidence in reply by the applicants. At that time I granted leave to the applicants to address, in any affidavit to be made by the first applicant (who had not previously made an affidavit in the proceeding), any matter that should have been addressed by him as evidence in chief. I then made an order permitting the respondent to file and serve affidavit evidence in response to any affidavit made by the first applicant pursuant to the leave that had been granted.

3    As events have transpired, the first applicant, on 2 June 2011, made and filed an affidavit pursuant to the leave that had been granted. It is a lengthy affidavit comprising 137 paragraphs and a number of annexures. It is clear that the affidavit deals with facts, matters and circumstances that, on their face, travel beyond the particular allegations made in the points of claim that have been filed by the applicants.

4    The respondent has elected not to respond to this affidavit, but has raised the question of the admissibility of many paragraphs of it. The respondent has also raised the question of the impact that the reading of the affidavit might have on the conduct of the hearing of the applicants’ claim for final relief, which has now been set down on 19 to 21 December 2011 before me. The respondent’s concerns extended to the admissibility of other evidentiary material on which the applicants propose to rely at that hearing.

5    In those circumstances, I ordered that there be a separate hearing to deal with the respondent’s objections to the applicants’ proposed evidence. This course was warranted in order to facilitate the just resolution of the matter before the Court as quickly, inexpensively and efficiently as possible, in accordance with the objectives set out in s 37M(2) of the Federal Court of Australia Act 1976 (Cth).

The applicants’ claim

6    The applicants’ claim is one commenced under s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (the Act) alleging unlawful discrimination based on ss 5, 6 and 24 of the Disability Discrimination Act 1992 (Cth) (the Disability Discrimination Act).

7    On 24 May 2010 the second applicant made a written complaint to the Australian Human Rights Commission (the Commission) on behalf of the first applicant about his treatment by the respondent. Section 46P(2) of the Act provides that a complaint may be lodged by a person aggrieved by the alleged unlawful discrimination on that person’s own behalf or on behalf of that person and one or more other persons who are also aggrieved by the alleged unlawful discrimination.

8    The first and second applicants are husband and wife. The second applicant is the manager of the first applicant’s estate pursuant to an order made by the Supreme Court of New South Wales under the Protected Estates Act 1983 (NSW).

9    The complaint was expressed in the following terms:

I wish to complain on behalf of [the first applicant] about his treatment at the hands of NSW Police, and the NSW Police Force’s failure to follow requirements for dealing with people with intellectual impairment and to seek the orders [identified in another part of the complaint].

10    In that complaint the second applicant also said:

As [the first applicant’s] Manager and Guardian, I complain that the events outlined above constitute discrimination against [the first applicant] by ignoring and denying his disability, and discrimination and harassment of me as [the first applicant’s] manager and prevention of my fulfilling my role as [the first applicant’s] manager.

[Capitalisation in original]

11    A number of documents were attached to the complaint, including:

(a)    a Custody Management Record, apparently created on 21 March 2009;

(b)    Reasons for Bail Decision by Authorising Officer, apparently created on 21 March 2009, and

(c)    a Facts Sheet, apparently created on 15 May 2009.

12    It is clear that the “events outlined above”, as referred to in the complaint, concern the manner in which officers of the respondent treated the first applicant in the course of, and following upon, his arrest on 21 March 2009 for certain alleged offences under the Crimes Act 1900 (NSW). The gravamen of the complaint is that officers of the respondent treated the first applicant as having feigned a mental illness “in an attempt to utilise the benefits of the Mental Health Act in the judicial process”, and failed to offer him a support person, in relation to and in the course of his arrest, at a time when he was suffering a mental illness.

13    On 1 September 2010 the Commission gave notice under s 46PH(2) of the Act, terminating the complaint under s 46PH(1)(i) of the Act on the ground that there was no reasonable prospect of the matter being settled by conciliation.

14    In its reasons for that decision, the Commission summarised the applicants’ claim as follows:

You claim that NSW Police discriminated against you and [the first applicant] because of his disability by failing to offer him a support person or notify you when he was at the police station in relation to a suspected criminal matter. You also claim that NSW Police falsely accuse [the first applicant] of feigning his disability in police documents.

15    In its reasons the Commission also summarised the respondent’s response as follows:

NSW Police advises that [the first applicant] has come into contact with police on numerous occasions since 1992. NSW Police says that on 21 March 2009 [the first applicant] was placed under arrest, conveyed to Liverpool hospital for treatment because he had a seizure and subsequently taken to Liverpool police station. NSW Police says that while [the first applicant] was in police custody on 21 March 2009, reasonable attempts were made to have a support person present and adjustments were provided to him.

NSW Police advises that on 23 March 2009 you and [the first applicant] attended Green Valley police station to inform police of his disability and to state that the reporting conditions were unreasonable due to his health situation. NSW Police advises that it is now on official police record that you, as [the first applicant’s] support person, should be contacted any time there is interaction between the police and him.

NSW Police advises that the opinion expressed by the police officer that [the first applicant] feigns to have a disability, as alleged in the complaint, was ignored by other police officers because they recognised [the first applicant] as a vulnerable person.

16    Section 46PO(1) of the Act relevantly provides that, if notice under s 46PH(2) has been given in relation to the termination of a complaint, any person who was an affected person in relation to the complaint may make an application to the Court (or the Federal Magistrates Court), alleging unlawful discrimination by a respondent to the terminated complaint.

17    Importantly for present purposes, s 46PO(3) provides:

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.

The respondent’s submissions

18    The respondent’s overarching submission is that the Court does not have jurisdiction to conduct a general enquiry into all or every complaint that the applicants may have about the NSW Police Service; the Court’s jurisdiction is limited by the terms of the terminated complaint and the relevant issues of disability discrimination that arise under the Disability Discrimination Act in relation to that complaint.

19    In this connection the respondent submits that:

(a)    Paragraphs 3, 6, 8 and 9 of the points of claim filed by the applicants raise allegations which the Court does not have jurisdiction to hear and determine, because the alleged unlawful discrimination identified in those paragraphs does not fall within s 46PO(3) of the Act.

(b)    The evidence on which the applicants propose to rely in support of those paragraphs, and in support of other allegations of unlawful discrimination not falling within s 46PO(3) of the Act as applied to the terminated complaint, should be rejected.

20    The respondent’s filed defence makes clear its objection relating to the allegations in paragraphs 3, 6, 8 and 9 of the points of claim. The defence also raises other matters that the respondent will raise as providing a complete defence to the applicants’ claim. Those other matters are not presently before me for determination, but the applicants have clear notice of them.

21    The respondent advances the following legal propositions as being relevant to my consideration of the objections it has raised with respect to the applicants’ proposed evidence.

22    First, the “clock stops” on the date that a complaint is lodged: Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573 at [35]-[36]. The Commission may look at alleged conduct up to 24 May 2010 (the date on which the written complaint was made by the second applicant on behalf of the first applicant) which is identified in the complaint, but not from that date: Travers v State of New South Wales [2000] FCA 1565 at [8].

23    Secondly, s 46PO(3) of the Act does not provide for a general statutory cause of action available to anyone who may have been at any time affected by the alleged unlawful discrimination. The action only lies in respect of the subject matter of the complaint to the Commission. The legislative intention manifested by s 46PO(3) of the Act is to ensure that the Commission is always the filter for claims of unlawful discrimination before they are brought to a court: Grigor-Scott v Jones (2008) 168 FCR 450 at [18]-[19].

24    Thirdly, in this connection, a terminated complaint should not be used to launch an application to the Court which effectively bypasses the procedures provided by the Act, alleging discrimination other than that of which a complaint has been made or covering a course of conduct substantially wider, or beginning substantially earlier, than that initially complained of: Travers at [8].

25    Fourthly, this having been said, the terms of s 46PO(3) do suggest “a degree of flexibility” in the application of that provision, by the use (in sub-paragraph (a) thereof) of the words “or the same in substance” and by use of the words “or substantially the same” (in sub-paragraph (b) thereof).

26    The import of these principles was recently discussed by the Full Court in Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118 at [46]-[48]. It is not necessary to repeat that discussion in these reasons, except to note that the Full Court observed that, although s 46PO(3) contemplates some ambit for additional conduct, acts, omissions or practices, the “substantive directions given by s 46PO(3) must still be respected”: see also Maghiar v Western Australia [2002] FCA 262 at [18].

27    The applicants did not seek to contest these principles. They did, however, maintain their resistance to the respondent’s objections and continued to support the admissibility of their proposed evidence. In the course of doing so, the applicants informed me that the facts, matters and circumstances set out in the first applicant’s affidavit (to which objection has been taken by the respondent) are currently the subject of a new complaint that they have made to the Commission.

28    Be that as it may, I am called upon to make rulings on the admissibility of certain parts of the applicants’ proposed evidence by reference to the issues that have been properly placed before the Court as a result of the terminated complaint made on 24 May 2010.

Consideration

29    The respondent has formulated a series of objections, covering all objections it seeks to make to the applicants’ proposed evidence, whether those objections be characterised as ones of relevance or of form.

30    It is convenient to deal with those objections now so that all parties, and the Court, have a clear view of the ambit of the factual dispute and the legal questions that will fall to be determined at the hearing for final relief commencing later this year.

31    Having considered the applicants’ proposed evidence, in light of the relevant legal principles to which I have briefly referred, I make the following rulings.

32    I reject the following paragraphs of the following affidavits on the basis that they concern facts, matters or circumstances relating to alleged unlawful discrimination that is not the same as (or the same in substance as) the unlawful discrimination that is the subject of the terminated complaint, and does not otherwise arise out of the same (or substantially the same) acts, omissions or practices that are the subject of that complaint:

(a)    Affidavit of David Robinson sworn 2 June 2011

(i)    Paragraphs 16 to 19;

(ii)    Paragraphs 33 to 34;

(iii)    Paragraphs 35 to 36;

(iv)    Paragraphs 44 to 51;

(v)    Paragraph 52 to 68 and 127 to 128;

(vi)    Paragraphs 69 to 72;

(vii)    Paragraphs 73 to 83 and 124 to 125;

(viii)    Paragraphs 84 to 85;

(ix)    Paragraphs 86 to 87;

(x)    Paragraphs 88 to 89;

(xi)    Paragraphs 90 to 94 and 126;

(xii)    Paragraphs 95 to 96;

(xiii)    Paragraphs 97 to 98;

(xiv)    Paragraphs 99 to 100;

(xv)    Paragraphs 101 to 102;

(xvi)    Paragraphs 103 to 104;

(xvii)    Paragraphs 105 to 115;

(xviii)    Paragraphs 120 to 123;

(xix)    Paragraph 129; and

(xx)    Paragraph 131.

Some of these paragraphs also deal with facts, matters or circumstances that post-date the making of the terminated complaint.

(b)    Affidavit of Sonia El Masri sworn 4 April 2011

(i)    Paragraphs 5 to 7; and

(ii)    Paragraphs 10 to 14.

(c)    Affidavit of Sonia El Masri sworn 23 May 2011

(i)    Whole affidavit.

(d)    Affidavits of Sally Neighbour sworn 8 April 2011 and 17 May 2011

(i)    Each affidavit.

In addition, Ms Neighbour’s affidavits, in their present form, are based almost entirely on hearsay material or inadmissible opinion evidence.

33    The respondent has objected to parts of the applicants’ proposed evidence on the ground that those parts are not evidence of primary facts but are in the nature of arguments or submissions based on asserted facts. I will admit that evidence subject to a limitation under s 136 of the Evidence Act 1995 (Cth) (the Evidence Act) that it stands as a submission and not as evidence of the facts that are asserted.

34    For the avoidance of doubt, I note that a number of these objections are directed to statements of loss, damage or financial hardship. The reception of those statements, by way of submission, will not stand as evidence of the existence of that loss, damage or financial hardship, its causation or its quantum, beyond the fact that it has been asserted by each deponent to exist, to have been caused or to be of a certain quantum, as the case might be.

35    The evidence to which objection has been taken on this ground, and which will be admitted on the limited basis I have described, is as follows:

(a)    Affidavit of David Robinson sworn 2 June 2011

(i)    Paragraph 2;

(ii)    Paragraph 15;

(iii)    Paragraph 20;

(iv)    Paragraphs 30 to 32, and

(v)    Paragraphs 37 and 39.

(b)    Affidavit of Sonia El Masri sworn 4 April 2011

(i)    Paragraphs 3 and 4;

(ii)    Paragraphs 8 and 9, and

(iii)    Paragraph 15.

36    The respondent has objected to parts of the applicants’ proposed evidence where it is unclear that the evidence is directed to the subject matter of the terminated complaint. I will admit that evidence on the basis that its use is limited to the subject matter of the terminated complaint.

37    The evidence to which objection has been taken on this ground, and which will be admitted on the limited basis I have described, is as follows:

(a)    Affidavit of David Robinson sworn 2 June 2011

(i)    Paragraph 4, and

(ii)    Paragraphs 21 to 23.

38    The respondent has objected to the following evidence on the ground that it concerns facts, matters or circumstances of alleged unlawful discrimination that is not the same as (or the same in substance as) the unlawful discrimination that is the subject of the terminated complaint, or does not arise out of the same (or substantially the same) acts, omissions or practices that are the subject of that complaint. I propose to admit that evidence. I am satisfied that it either concerns the terminated complaint or arises out of the same (or substantially the same) acts, omissions or practices that are the subject of that complaint:

(a)    Affidavit of David Robinson sworn 2 June 2011

(i)    Paragraph 3 (other than the references to paragraphs 3, 4, 6 and 7 of the points of claim);

(ii)    Paragraphs 7 to 11;

(iii)    Paragraphs 116 to 119;

(iv)    Paragraph 130, and

(v)    Paragraph 132.

39    The respondent has also raised the relevance of certain medical reports that the applicants propose to tender. The respondent accepts that if the medical reports are to be relied on to prove that the first applicant had a disability on 21 March 2009, then they are admissible, save as to form. I should add that, on the basis of what I have been told at previous directions hearings, the fact that the first applicant suffered a mental illness as at 21 March 2009 is not in dispute. Accordingly, I would not reject the medical reports on the ground of relevance.

40    The respondent has not articulated any precise objection as to the form of the medical reports. I am not disposed to reject that evidence on that basis. It will be a matter for the respondent if it wishes to cross-examine the makers of those reports. If so, it should secure their attendance, by appropriate means.

41    There are two additional matters to which I should refer.

42    First, in the course of, and as a result of, dealing with the present objections to evidence, it has become clear that the points of claim raise facts, matters and circumstances of alleged unlawful discrimination that are not the same as (or the same in substance as) the unlawful discrimination that is the subject of the terminated complaint, or do not arise out of the same (or substantially the same) acts, omissions or practices that are the subject of that complaint. I refer, in particular, to paragraphs 3 to 7 of the points of claim. It is also apparent that other paragraphs in the points of claim contain errors, particularly as to relevant dates. I propose to grant leave to the applicants to file amended points of claim which correct these errors and otherwise limit the claims to the subject of the terminated complaint.

43    Secondly, although in past directions hearings I have suggested to the applicants that they endeavour to obtain legal representation in this proceeding, they have expressly declined to adopt that course. In deference to their expressed wish to represent themselves, I took no further action in that regard. However, at the conclusion of submissions in the present application, the applicants did raise the question of legal assistance being provided to them for the hearing to commence on 19 December 2011. I have indicated, and now confirm, that I am prepared to issue a referral certificate under Rule 4.12 of the Federal Court Rules 2011 for that purpose. The applicants may wish, however, to take other or additional steps in that regard.

Associate:

Dated:    23 September 2011