FEDERAL COURT OF AUSTRALIA

Robinson v Commissioner of Police, New South Wales Police Force [2014] FCA 407

THE COURT ORDERS THAT:

1.    The interlocutory application filed 24 February 2014 be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BUCHANAN J:

Procedural history

1    On 11 February 2014 I dismissed proceedings commenced by the applicants on 14 December 2011 (“the 2011 proceedings”) because the applicants were in default (Robinson v Commissioner of Police, New South Wales Police Force [2014] FCA 67 (“the default judgment”)).

2    As I explained in the default judgment, the 2011 proceedings were commenced after Yates J, in earlier proceedings commenced on 15 October 2010 (“the 2010 proceedings”), ruled that material relating to the interaction between the applicants and the New South Wales Police, other than on 21 March 2009, was inadmissible. It was events on that day which had been the subject of a complaint to the Australian Human Rights Commission (“the AHRC”). That complaint provided the jurisdictional foundation in this Court for the 2010 proceedings (see Australian Human Rights Commission Act 1986 (Cth) (“the AHRC Act”), s 46PO(3)).

3    The applicants then made a further complaint to the AHRC about the additional matters (and again about events on 21 March 2009) and later commenced the 2011 proceedings in this Court about all those matters.

4    Yates J then dealt with the 2010 proceedings (concerning events on 21 March 2009) and dismissed them (Robinson v Commissioner of Police, NSW Police Force [2012] FCA 770 (“the 2012 judgment”)). An appeal to the Full Court was dismissed (Robinson v Commissioner of Police, New South Wales Police Force [2013] FCAFC 64 (“the appeal judgment”). When the 2011 proceedings were relisted before Yates J the applicants objected to him further hearing the matter, in light of findings made in the 2012 judgment, and Yates J recused himself (Robinson v Commissioner of Police, New South Wales Police Force [2013] FCA 1294 (“the recusal judgment”)).

5    Earlier, however, Yates J had made orders relating to the conduct of the 2011 proceedings. In particular, Yates J made directions on 28 August 2013 about an interlocutory application foreshadowed by the respondent seeking the summary dismissal of the 2011 proceedings. Those directions required that any such application be filed by 6 September 2013, supported by detailed written submissions and an affidavit in support. The respondent complied with that direction.

6    The directions made on 28 August 2013 required the applicants to file and serve the material, upon which they proposed to rely in response to the interlocutory application, by 4 October 2013. The applicants did not respond to this direction; instead, they asked Yates J to disqualify himself from hearing the 2011 proceedings. However, they did nothing about the directions made on 28 August 2013; neither asking that they be vacated, nor complying with them.

7    After the recusal judgment, the 2011 proceedings were allocated to my docket. On 6 December 2013 I ordered that the interlocutory application filed on 6 September 2013 be listed for hearing “on the basis of evidence and submissions filed in accordance with the orders made by Yates J on 28 August 2013”. At that time, the only such material had been filed by the respondent on 6 September 2013. Initially, the interlocutory application was listed for hearing on 29 January 2014. At a directions hearing on 20 December 2013 that listing was vacated and the interlocutory application was listed for hearing on 11 February 2014. The applicants did not appear at the directions hearing on 20 December 2013.

8    On 11 February 2014 neither applicant appeared. The hearing of the interlocutory application proceeded but I decided that I should dismiss the proceedings for default, rather than dealing finally with the interlocutory application (see the default judgment at [16]-[17]).

9    On 24 February 2014 the applicants applied (supported by an affidavit sworn by the first applicant filed on 26 February 2014) to reinstate the proceedings. The applicants both appeared (by video link from Canberra) at a directions hearing on 28 February 2014 at which I ordered that the interlocutory application filed on 24 February 2014 to reinstate the proceedings, and the interlocutory application filed by the respondent on 6 September 2013 to summarily dismiss the proceedings, be listed together for hearing at Canberra (as the applicants now reside in the Australian Capital Territory) commencing on 17 March 2014.

10    Before I turn to those applications in greater detail, some further procedural matters should be mentioned.

11    Mr Robinson’s affidavit filed on 26 February 2014 stated that neither the Court, nor the respondents, had notified him of the hearing on 11 February 2014. Mr Robinson also attached a “Notice of a Constitutional matter under section 78B of the Judiciary Act 1903”. The interlocutory application to reinstate the 2011 proceedings, Mr Robinson’s affidavit and the s 78B Notice were all endorsed to the effect that they had been prepared by Ms El Masri.

12    At the directions hearing on 28 February 2014, I discussed with the applicants the need for them to explain why they had not responded to the earlier directions. Mr Robinson indicated that he would file a statement about that issue. Ms El Masri emphasised that she had neither the time nor the facilities to make any written contribution to the proceedings. I indicated that if she did not file an explanation for default before the hearing she could make an oral contribution at that time.

13    At the conclusion of the directions hearing, I made the following orders:

1.    The interlocutory application to reinstate the proceedings filed by the applicants on 24 February 2014 and the application to strike out the proceedings filed by the respondent on 6 September 2013 be listed for hearing together at 2.15 pm, Monday, 17 March 2014 and, if necessary, at 10.15 am, Tuesday, 18 March 2014 in Canberra.

2.    The applicants file in writing any explanation they wish to give for non-compliance with the orders made by Yates J on 28 August 2013 by 4.00 pm, Wednesday, 12 March 2014.

3.    The applicants file any written submissions they wish to make in answer to the respondent’s written submissions filed 6 September 2013 by 4.00 pm, Wednesday, 12 March 2014.

The 78B Notice

14    There was no evidence that the s 78B Notice was served on any Attorney-General for the Commonwealth or the States, but that may be put to one side because it did not raise any issue arising under the Constitution or involving its interpretation. The Court is therefore not prevented from dealing with either of the interlocutory applications (see Australian Education Union v Lee (2010) 189 FCR 259 at [23] and the cases there cited). I take the view that the interlocutory applications should be addressed without further delay.

The applicant’s written statements

15    Mr Robinson filed two documents on 12 March 2014. His explanation for the default by the applicants was to say that Ms El Masri had not told him about the hearing on 11 February 2014 and later said she was unaware of the hearing because she had no internet access. Mr Robinson also said he was not told by the respondent about the hearing.

16    Mr Robinson’s written statement about why the 2011 proceedings should not be summarily dismissed is not easy to follow but he appears to contend that the 2011 proceedings deal with different matters than the 2010 proceedings. Mr Robinson did not address either of the legal issues relied upon by the respondent which are discussed below.

17    Nothing was filed by Ms El Masri before the hearing on 17 March 2014.

Contact with the applicants

18    The Court’s records show that on 15 August 2012, Ms El Masri advised the Sydney Registry of the Court that she and Mr Robinson had moved to Canberra to reside. She gave, as a mailing address, a GPO Box number in Canberra, and an email address. The same GPO Box number was endorsed on Mr Robinson’s most recent statements.

19    On 8 January 2014, after the applicants failed to appear at the directions hearing on 20 December 2013, the Sydney Registry wrote to the applicants. The letter was sent by express post to the GPO Box number given on 15 August 2012, and to the email address supplied by Ms El Masri. That letter said the following:

Dear Mr Robinson & Mrs El Masri,

I have been informed by Chambers that you failed to appear at the Directions listed on 20 December 2013.

The matter has now been re-listed for Interlocutory Hearing before Justice Buchanan at 10:15am on Tuesday, 11 February 2014.

The listing for Wednesday, 29 January 2014 has been vacated.

Please confirm receipt of this letter either by replying to my email or contacting the Registry on (02) 9230 8567.

Please be advised it is the Applicants responsibility to update the Court with current contact details.

(Emphasis in original.)

20    The GPO Box number (at least) remains current.

The applicants’ oral submissions

21    Although in previous proceedings Ms El Masri has on occasion presented the arguments of both applicants, at the directions hearing on 28 February 2014, Mr Robinson made it clear that he wished to speak for himself when the interlocutory applications were heard.

22    Ms El Masri was earlier appointed by a judge of the Supreme Court of New South Wales as the manager of Mr Robinson’s estate, due to his inability to manage his own affairs. Ms El Masri insists that, more recently, she has been removed from that position, but I do not need to decide what the present position is for the purpose of dealing with the present interlocutory applications.

23    At the hearing on 17 March 2014, Mr Robinson asked again to make his own submissions and I allowed him to do so. Ms El Masri was equally clear that she was not speaking for him.

24    Mr Robinson said orally, as he had in writing, that he relied on Ms El Masri for information about procedural matters connected with the 2011 application. Ms El Masri insisted that no letter advising of the hearing on 11 February 2014 was received at the GPO Box, and said that her email facility had been disrupted by computer problems.

25    As to the legal issues raised by the written submission filed by the respondent on 6 September 2013, both Mr Robinson and Ms El Masri attempted to stress, in their own ways, that the allegations in the 2011 proceedings were factually much more extensive than the 2010 proceedings. They each relied on the proposition that termination of the complaint by the AHRC was a step towards giving this Court jurisdiction to deal with their allegations and saw that as some indication that the 2011 proceedings could therefore continue. Each of them appealed to more general notions of justice, humane treatment and Australia’s adoption of treaty obligations.

26    Ms El Masri also emphasised that she wanted no restrictive view taken of the foundation for the 2011 proceedings and wished to rely on any avenue for relief.

27    However, it was obvious that neither Ms El Masri nor Mr Robinson were really in a position to resist the legal propositions addressed by the respondent. I deal with those propositions hereunder.

The application to reinstate

28    I am not able to determine whether the applicants were aware or unaware of the listing on 11 February 2014. They each denied it, although clear advice with adequate notice was sent to their given address for service. Ms El Masri also acknowledged that shortly after the hearing on 11 February 2014, copies of the orders made on that day were received at their GPO Box.

29    However, it is not necessary to resolve this issue. The better course is that the application to reinstate the proceedings should be assessed by reference to the substance (or otherwise) of the application to summarily dismiss the 2011 proceedings.

30    I propose, therefore, to examine the substance of the interlocutory application filed by the respondent on 6 September 2013, to assess whether there would be any utility in reinstating the 2011 proceedings.

The application for summary dismissal

31    The application for summary dismissal filed by the respondent on 6 September 2013 has two principal elements. First, the respondent argued that some of the matters raised by the 2011 proceedings have been dealt with to finality by the 2012 judgment and the appeal judgment. Those matters concern events on 21 March 2009. Secondly, so far as other events in the period between 2006 and 2011 are concerned, the respondent argues that findings of law, and of statutory construction, made in the 2012 judgment which were approved on appeal have the necessary consequence that no element of the 2011 proceedings can be successfully prosecuted.

32    Accordingly, the respondent contends that no matter raised in the 2011 proceedings has any reasonable prospects of success.

33    To put those arguments into context it is necessary to briefly describe the character of the allegations made in the 2011 proceedings and how allegations of that kind were dealt with in the 2012 judgment and the appeal judgment.

34    The 2011 proceedings allege that Mr Robinson (and Ms El Masri) were subject to “discrimination”. The originating application filed on 14 December 2011 identified the legislative foundation for the proceedings by saying that “the discrimination complained of is unlawful under the Disability Discrimination Act 1992”.

35    In its statement of reasons for terminating the complaint to that body given by the AHRC, it stated that the complaint (which represents the body of factual allegations relied on in the present proceedings) was one which alleged: “disability discrimination in the provision of goods, services and facilities under the Disability Discrimination Act 1992 (Cth)”. In particular, the complaint was such as to allege disability discrimination in the provision of a “service” within the meaning of ss 4 and 24 of the Disability Discrimination Act 1992 (Cth) (“the DD Act”).

36    The 2011 proceedings concern 43 incidents arising from interactions between members of the New South Wales Police and one or other of the applicants. In one way or another the incidents are connected with Mr Robinson’s criminal history, which is complicated by Mr Robinson’s mental state which the applicants attribute to injuries he suffered in a motor bike accident on 29 July 2006.

37    In fact, one complaint made by the applicants pre-dates this accident. This complaint stems from entries made on Mr Robinson’s COPS (Computerised Operational Policing System) profile by two detectives on 18 March 2006 which include the following:

“Approach with caution extremely hostile and violent when informed he is under arrest which appears to be a catalyst for self-induced panic attack in order to avoid arrest.

“May be suffering Mental Illness - Delusions of being an ASIO operative and being wanted by the CIA”.

“He hyperventilated and faked a seizure”.

“Told one Police Officer he worked for ASIO”.

38    The 2010 proceedings also alleged unlawful discrimination by members of the New South Wales Police. The 2010 proceedings focussed on events on 21 March 2009 when Mr Robinson was taken by ambulance to Liverpool Hospital after two detectives (one of whom was involved in the 18 March 2006 COPS entries) went to an address and arrested Mr Robinson on fraud charges. Events on that day also concerned statements made to Ms El Masri.

39    The assessment made by Yates J of those matters in the 2012 judgment (so far as they concerned claims of unlawful discrimination against Mr Robinson) included the following conclusions:

205        … it is not disputed that Mr Robinson was under investigation for serious offences that involved deception. He had been charged with one such offence on 21 March 2009. The antecedents statement in the Facts Sheet provided to Senior Constable Taseski included information that Mr Robinson had a lengthy criminal history and that further investigations were being carried out in respect of other alleged offences for which, it seemed, Mr Robinson would be charged. However, those matters could not be dealt with at the time because of Mr Robinson’s “mental presentation”. Strict bail conditions were sought by DSC Mangan so as to ensure that Mr Robinson’s “whereabouts are known by police at all times”. It does not follow from this request that, as a matter of fact, “the strictest of conditions” were imposed and that, in consequence, Mr Robinson was treated less favourably than a person without his disability would have been treated in the same or not materially different circumstances. Indeed, there is simply no evidence that would allow me to conclude that, absent the belief that Mr Robinson had feigned a mental illness (including a seizure), different bail conditions would have been sought or imposed in the circumstances.

206        For these reasons, even if services were involved in “dealing with” Mr Robinson’s bail application, I am not satisfied that the applicants have established that s 24 was contravened by reason of Mr Robinson being treated less favourably in relation to the terms or conditions on which those services were supplied or the manner in which those services were supplied.

207        Finally, the respondent submits that, even if Mr Robinson was treated less favourably, that treatment was not because of his disability. I accept that submission. Here, once again, the applicants’ focus has been on the influence of DSC Mangan’s statements in the Facts Sheet about Mr Robinson feigning a mental illness. But these statements were made by DSC Mangan because he believed that Mr Robinson had feigned a mental illness (including the seizure). These statements were not made because Mr Robinson had a disability but because DSC Mangan believed that Mr Robinson had feigned a disability: Forbes v Australian Federal Police (Commonwealth of Australia) [2004] FCAFC 95 at [68]-[70] and [76].

(Emphasis in original.)

40    Yates J concluded (at [136]-[137]) that no separate case was available to Ms El Masri as she was not a person with a relevant disability.

41    However, apart from the particular findings concerning 21 March 2009, to the effect that no case of unlawful discrimination was made out in respect of each applicant, the 2010 proceedings were attended by a fatal legal defect.

42    At the relevant time, s 24(1) of the DD Act provided:

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.

43    It was accepted by Yates J for the purpose of the 2010 proceedings that Mr Robinson suffered a mental illness which was a “disability”, and that Ms El Masri was his “associate”.

44    It is convenient to mention here that from 5 August 2009, s 24(1) omitted any reference to disabilities of associates and provided instead:

24    Goods, services and facilities

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:

(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.

45    That particular change has no significance for the present proceedings. (Section 7, in any event, applied the provisions of the Act to discrimination against associates from that time).

46    Section 4 of the DD Act provided:

4    Interpretation

…

services includes:

(a)    services relating to banking, insurance, superannuation and the provision of grants, loans, credit or finance; or

(b)    services relating to entertainment, recreation or refreshment; or

(c)    services relating to transport or travel; or

(d)    services relating to telecommunications; or

(e)    services of the kind provided by the members of any profession or trade; or

(f)    services of the kind provided by a government, a government authority or a local government body.

47    Yates J found (in reasoning equally applicable to the present case) that members of a police force do not provide “services” within the meaning of s 24(1) of the DD Act when they arrest a person, or keep them in custody or do the other things which were said to have involved discrimination against Mr Robinson on 21 March 2009. A survey of cases which Yates J undertook from [146] to [170] in the 2012 judgment made it apparent that, in s 24(1), the notion of services does not have a meaning so wide that it includes all interactions. Yates J concluded (at [181]):

181    … the various interactions between Mr Robinson, Ms El Masri and members of the NSW Police Force on 21 March 2009 did not involve “services” for the purposes of s 24 of the Act. As the applicants’ claims of unlawful discrimination are based solely on unlawful discrimination under s 24 of the Act, it follows that their claims must be dismissed.

48    In the appeal judgment, those conclusions were all upheld. It should be noted also that some aspects of the analysis which are material for present purposes were, in any event, not in issue. Thus, the Full Court said (at [145]):

145        However, it is to be noted that there was no oral argument specifically directed to the two key legal issues, namely, the question of whether or not there was a specific provision of ‘services’ for the purposes of s 24 of the DDA and, secondly, whether or not there was, in any event, ‘discrimination’ as defined under the legislation. On these central issues we have considered the reasons of the primary judge and find no reason to doubt their correctness.

49    The Full Court also said (at [165]-[167]):

165        The next point advanced on appeal was the complaint by the appellants before the primary judge was not confined to the concept of provision of a service. A repeated theme in the general complaints of the appellants is that the primary judge narrowed the scope of the case too much. In fact, his Honour confined the scope of the case to the scope of the complaint before the Commission or to matters substantially similar. This is entirely in accordance with the provisions of the AHRC Act and the DDA. The difficulty for the appellants is that discrimination is not an open ended complaint at large but has to be linked to certain circumstances. In this instance, the circumstances were said to be those of the provision of a service within the meaning discussed in s 24 of the DDA.

166        There is no doubt that the primary judge considered this question in detail, fairly and entirely accurately. For a complaint of discrimination to succeed, the complainant must identify that the complaint falls within one of the relevant areas of direct and indirect discrimination in certain fields of public life. The area identified by the appellants had been with respect to ‘provision of services’.

167        The appellants have argued that the primary judge should have considered a broader ranging form of discrimination than that on which they expressed or relied. That was not a course open to his Honour in the way the complaint before him was conducted. As is made clear on the appeal by senior counsel for the Police Commissioner, the DDA is not a law which looks at discrimination at large. The DDA is specific to the circumstances which fall for consideration. Moreover, s 42PO(3) [sic] of the AHRC Act provides that a Federal Court action arising out of a terminated complaint to the Commission must be the same unlawful discrimination (or the same in substance) as that which was the subject of the terminated complaint. On these central issues we have considered the reasons of the primary judge and find no reason to doubt their correctness.

50    Those observations have significance for the present interlocutory applications also. Although Ms El Masri made it clear that the applicants wished as wide a legal foundation as possible for the 2011 proceedings, those proceedings are also confined by the nature of the complaint made to the AHRC. As the distillation of the allegations provided by the respondent in its written submissions filed on 6 September 2013 makes clear, the 2011 proceedings are, like the 2010 proceedings, ones which depend upon the fundamental premise that members of the NSW Police Force unlawfully discriminated against Mr Robinson and Ms El Masri in the provision of services to them.

51    With that background, I will address the specific legal arguments advanced by the respondent, each of which I attempted to keep at the forefront of the applicants’ attention in the hearing on 17 March 2014.

Res judicata

52    The respondent identified 43 arguably individual allegations contained in the complaint to the AHRC which provides the jurisdictional foundation for the 2011 proceedings. Eight of those were the subject of the 2010 proceedings and relate to events on 21 March 2009.

53    The first matter relied upon in the interlocutory application that the 2011 proceedings be summarily dismissed is that it is not open to the applicants to rely again on the facts and circumstances of 21 March 2009 to suggest unlawful discrimination. In my view, this contention is irresistible. Those matters have been dealt with finally. They may not be relitigated.

Prior findings of law

54    The balance of the allegations, on the submission of the respondent, raised the following questions:

44.    In summary, the following questions arise with respect to each allegation:

(a)    did the Respondent’s officers provide any relevant ‘service’ to either or both Applicant for the purpose of s 24 of the DD Act (as it was prior to 5 August 2009 and thereafter); and

(b)    did the Respondent’s officers refuse to provide any relevant ‘service’ for the purpose of s 24(1)(a) of s 24(a) of the DD Act; or

(c)    did the Respondent’s officers provide any relevant ‘service’ on particular terms and conditions for the purpose of s 24(1)(b) of s 24(b) of the DD Act; or

(d)    did the Respondent’s officers provide any relevant ‘service’ in a particular manner for the purpose of s 24(1)(c) or s 24(c) of the DD Act;

(e)    did the Respondent treated [sic] Mr Robinson less favourably when compared to a person without his disability in the same or similar circumstances, within the meaning of s 5(1) of the DD Act (as it was prior to and post 5 August 2009);

(f)    if the Respondent treated Mr Robinson less favourably, whether a reason for the less favourable treatment was Mr Robinson’s disability;

(g)    alternatively, has the Respondent imposed a requirement or condition which amounts to ‘indirect discrimination’ within the meaning of s 6 of the DD Act (as it was prior to and post 5 August 2009);

(h)    has the Respondent treated Ms EI-Masri less favourably on the ground of being an associate of Mr Robinson when compared to a person without Mr Robinson’s disability in the same or similar circumstances, within the meaning of s 5(1) of the DD Act (as it was prior to and post 5 August 2009) and s 7 of the DD Act (after 5 August 2009);

(i)    if the Respondent treated Ms EI-Masri less favourably, whether a reason for the less favourable treatment was Mr Robinson’s disability;

(j)    alternatively, has the Respondent imposed a requirement or condition which amounts to ‘indirect discrimination’ within the meaning of s 6 of the DD Act (as it was prior to and post 5 August 2009) and s 7 of the DD Act (after 5 August 2009).

55    Although ss 5 and 6 of the DD Act, which deal with direct or indirect discrimination, have each been amended with effect from 5 August 2009, no aspect of the amendments would operate to support a conclusion that any of the complaints now made would be found to represent direct or indirect discrimination any more than did the events of 21 March 2009. However, it is not necessary to express any final conclusions about the factual elements involved in those additional allegations.

56    That is because the 2011 proceedings also suffer from the fatal defect that members of the New South Wales Police were clearly not providing “services” to Mr Robinson within the meaning of s 24 of the DD Act at any relevant time.

57    As the respondent’s written submissions filed on 6 September 2013 pointed out, the construction given to s 24 of the DD Act by Yates J has been followed in other cases (see Ejueyitsi v Commissioner of Police (Western Australia) [2013] FMCA 120 at footnote 2; Mariani v NSW Police Force, State of NSW [2013] NSWADT 35 at [22], [81]-[87]; Jamal v State of NSW (NSW Police Force) [2013] NSWADT 168 at [29]; see also Commissioner of Police, NSW Police Service v Estate Edward John Russell [2001] NSWSC 745 at [43]-[44]; Costello v Tasmania Police [2012] TASADT 9 at [14]-[18]).

58    As I would be bound by doctrines of precedent or comity to assess the applicants’ claims on the basis of the same statutory construction as employed by Yates J in the 2012 judgment and the Full Court in the appeal judgment, there is, in my view, no basis upon which to conclude that there is any likelihood that the additional claims would have any prospects of success if the 2011 proceedings had continued to a final hearing and not been dismissed for default.

Conclusion

59    As it is inevitable that the interlocutory application filed on 6 September 2013 would have succeeded, there is no utility in reinstating the proceedings. It is not necessary, therefore, to reach a final view about whether a satisfactory explanation was given for the applicants’ default.

60    The appropriate order is that the interlocutory application filed by the applicants on 24 February 2014 be dismissed with costs.

Associate:

Dated:    1 May 2014