FEDERAL COURT OF AUSTRALIA

Munday v Commonwealth of Australia [2014] FCA 618

THE COURT ORDERS THAT:

1.    The interlocutory application filed on 1 April 2014 be dismissed.

2.    The applicants pay the respondent’s costs.

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

REASONS FOR JUDGMENT

1    Catherine Anne Day apparently has a genetic chromosome disorder which prevents her from producing ova. More than once she has been denied early access to her superannuation in order to finance in vitro fertilisation (“IVF”) treatment in the United States where ova may lawfully be purchased. Micheal John Munday is her de facto husband. On 28 March 2012 Mr Munday complained to the Australian Human Rights Commission (“AHRC”) that the Commonwealth of Australia (more specifically, the Department of Human Services (“the Department”)) had unlawfully discriminated against Ms Day because of “the medical condition that she suffers”. He described the discrimination as “disability discrimination” and he asserted that the Department “directly discriminated” against his wife on the grounds of her disability.

2    On 20 December 2012 a delegate of the President of the AHRC terminated the complaint under s 46PH(1)(c) of the Australian Human Rights Commission Act 1986 (Cth) on the ground that she was satisfied that the complaint was lacking in substance. This action entitled “an affected person in relation to the complaint” to make an application to this Court or the Federal Circuit Court alleging unlawful discrimination by one or more of the respondents to the complaint: AHRC Act, s 46PO.

3    Subsequently, Mr Munday and Ms Day (together “the applicants”) began proceedings in this Court based on the same facts underlying the complaint. This judgment is concerned with an interlocutory application they filed in which they seek orders that the Commonwealth supply them with certain information to enable them to serve subpoenas on a number of individuals who are said to be involved in the allegedly discriminatory conduct.

Background

4    Ms Day made two applications for early release of her superannuation on compassionate grounds. The first was in November 2010, the second in August 2011. Each of these applications was considered by the Australian Prudential Regulatory Authority (“APRA”) and refused. The reason given for refusing the first application was the insufficiency of supporting medical information from treating specialists and the decision-maker’s lack of satisfaction that Ms Day lacked the financial capacity to meet the expense by other means. The application was reviewed by an independent reviewer, who was a delegate of APRA. The reviewer affirmed the decision because he was not satisfied that the treatment was necessary and was, in any event, prohibited under Australian law. The 2011 application was refused on the ground that the treatment was prohibited by Australian law.

5    The Commonwealth Department of Human Services later took over from APRA responsibility for the early release of superannuation on compassionate grounds. It seems that Ms Day made no application to the Department itself but Mr Munday said that he made representations to the responsible Minister and then to the Department’s national manager, who apparently undertook to “investigate the issue”. No formal investigation was apparently carried out but, on the basis of informal reviews of APRA’s decision-making processes, the Department considered that the decisions APRA made in relation to Ms Day’s applications were “sound and reasonable”.

The proceeding in this Court

6    The originating application in this Court was filed on 19 February 2013 and amended on 5 August 2013. The amended application alleges that the Commonwealth unlawfully discriminated against Ms Day “concerning acts, omissions and/or practices employed … in the assessment; subsequent review/s and/or reassessment of an application for the Early Release of Superannuation on Compassionate Grounds made by Ms Day”.

7    Section 29 of the Disability Discrimination Act 1992 (Cth) provides that “[i]t is unlawful for a person who performs any function or exercises any power under a Commonwealth law or for the purposes of a Commonwealth program or has any other responsibility for the administration of a Commonwealth law or the conduct of a Commonwealth program, to discriminate against another person on the ground of the other person's disability in the performance of that function, the exercise of that power or the fulfilment of that responsibility”.

8    In the amended originating application, the applicants complain that the Commonwealth did not carry out an impartial assessment of Ms Day’s application, that it erred in law by applying more stringent release criteria than those prescribed under reg 6.19A of the Superannuation Industry (Supervision) Regulations 1994 (Cth), that it arbitrarily applied a general policy outside the prescribed conditions of release, and that it was actuated by bad faith. They also assert that those who administered the Commonwealth’s early release of superannuation on compassionate grounds program unlawfully discriminated against Ms Day by refusing to obtain an independent legal opinion concerning the appropriateness of applying “additional more restrictive conditions of release on a program that ought reasonably be governed by compassion in the fulfilment of their responsibilities”.

9    The applicants seek the following relief (without alteration):

1.    A determination regarding the legality of “cherry picking” non-related pieces of legislation that can be appended to legislated Conditions of Release identified in Regulation 6.19A ; and

2.    A determination regarding the legality of Ms Day’s treatment regimen; and

3.    A determination regarding the appropriateness of applying local legislative restrictions to the actions of an individual undertaken in another legal jurisdiction; and

4.    A determination regarding the [Commonwealth]’s refusal to make reasonable adjustments when considering Ms Day’s treatment regimen and her need to have treatment in the location where she is most able to obtain the specific medical treatment that she requires; and

5.    An Order of specific performance be made requiring the [Commonwealth] to write to Ms Day formally apologising for the unreasonable interference in the fulfilment of her human and natural right to bear children; and

6.    An Order requiring the [Commonwealth] to assess Ms Day’s original application for the Early Release of Superannuation on Compassionate Grounds strictly in accordance with the legislated Conditions of Release is sought; and

7.    Any other Order/s that the Court sees fit.

10    On one view the originating application seeks judicial review. Although it does not ask for relief under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”) or s 39B of the Judiciary Act 1903 (Cth) and the applicants have not complied with the Federal Court Rules 2011 (Cth) for seeking judicial review, for the most part the language of the amended originating application is the language of judicial review.

11    There is no doubt that the applicants were aware that they could file an application for judicial review. Mr Munday was told by a registrar of the ACT Magistrates Court on 22 November 2011 that relief under the ADJR Act was an option. That advice was also given by a Senior Investigation Officer of the Commonwealth Ombudsman on 29 February 2012. On 15 March 2012 the then responsible minister, Senator Kim Carr, made the same suggestion. Furthermore, when it terminated the complaint, the AHRC referred in its reasons to the availability of judicial review under the ADJR Act.

12    On 5 November 2013 the Australian Government Solicitor wrote to Mr Munday pointing out that “although the originating application purports to be an application under the AHRC Act, the originating application contains allegations and seeks orders that are more usually found in judicial review applications and unlikely to be granted in a disability discrimination case”. The letter set out the background and history of the proceeding and referred to the matters I have just mentioned. It also foreshadowed that the letter would be handed up at the forthcoming directions hearing and that orders would be sought limiting the applicants to claiming relief under s 46PO(4) of the AHRC Act and that if they wished to seek judicial review they should file and serve an interlocutory application seeking leave to amend the originating application to add such a claim, apply for an extension of time to do so (if seeking review under the ADJR Act) and file and serve an affidavit explaining the delay.

13    On 8 November 2013 the matter was listed for directions before Foster J. It appears from the transcript that short minutes of order were handed to his Honour (though the contents of the document were not the subject of any evidence on the present application) and this question was ventilated in open court. Mr Munday, who appeared for himself and who was given leave to represent Ms Day, signified his willingness to confine the proceeding to one of unlawful discrimination. But it is far from clear that he understood all the implications of that. In any case, the only orders that were made were an order referring the proceeding for mediation and an order listing the proceeding for further directions. The applicants have not sought to amend the current originating application to remove any of the allegations that, at least on one view, raise issues which are quintessentially for judicial review. Nevertheless, at the hearing of the interlocutory application before me on 2 June 2014 Mr Munday confirmed the applicants’ intention not to seek judicial review.

The present application

14    By an interlocutory application filed on 1 April 2014 the applicants seek an order that the Commonwealth supply them with sufficient information to allow them to serve subpoenas on six individuals alleged to be the decision-makers involved in their applications to APRA. They are named only as Adaem, Chloe, Yumi, Maureen, Dan or Daniel and Jenna. Specifically, the applicants want their full names and work locations (if still employed by the Department of Human Services) and (if not) their last known residential addresses.

The evidence

15    The interlocutory application is supported by an affidavit affirmed by Mr Munday on 1 April 2014. In it Mr Munday stated that on 29 November 2010 Adaem made a record that he had received Ms Day’s application for assessing and spoke to Chloe. Mr Munday adds that a file note stated that the matter “should be assessed by SRA due to the IVF element”. He states that the next day the application was recorded as being with Yumi and that Yumi recorded the “reason statements” that would be included in the letter of decision. Mr Munday also states that “[t]he advice letter was initialled by an anonymous Delegate”. He goes on to say that on 7 March 2011 Maureen “reference[d]” Yumi’s comments and a system recorded note made by Peter identified that the file was transferred to Dan. Mr Munday asserted that, according to a file note dated 5 May 2011, on 21 March 2011 Dan (later recorded as Daniel) actioned the file as the Independent Review Officer, that on 14 April Dan met with an anonymous in-house legal representative who referred him to State and Territory legislation regarding the purchase of donor eggs, and that on 5 May 2011 Jenna checked Dan’s decision. On 16 August 2011 at 1.10 pm Mr Munday states that Jenna was recorded as the action officer receiving Ms Day’s second application and that on 18 August 2011 Jenna recorded that the second application was rejected.

16    In his affidavit Mr Munday submitted that the decision-makers “appear to be motivated by [Ms Day’s] IVF treatment rather than the legislated release criteria”. He explained that he “intend[s] to explore the motivation and direction that each of these employees operated under”. He stated that the Commonwealth has told him that it will not provide the relevant identification details and that it would oppose the issue of the subpoenas.

17    Some evidence concerning the process of decision-making by APRA appears in an affidavit sworn by Ms Day on 2 August 2013 which was read on the hearing of the interlocutory application.

18    The only material before the Court concerning the position taken by the Commonwealth (that is, supporting APRA’s decisions) is contained in Mr Munday’s complaint to the AHRC and the AHRC’s statement of reasons (both of which are attached to the originating application). In his complaint to the AHRC, Mr Munday stated:

Ms Sheila Bird the General Manager responsible affirmed to me that while the APRA decisions was (sic) made by lower-level staff, the Department’s senior staff had now reviewed the issue. She made it quite clear to me that the Department did not approve the release of any funds to cover the medical and transport costs that my wife needs because a small part of her treatment involves obtaining human ova, which is banned here in Australia.

19    Later in the document Mr Munday wrote:

The Department seems to be unconcerned with the deliberate perversion of the specified grounds identified in the Superannuation Regulations which provides the criteria for assessing the Early Release of Superannuation. The Department has been made aware of my concern that it is in breach of the Disability Discrimination Act 1992 by making a decision based solely on the disability of my wife and a tenuous link to international legal jurisdictions. The Department has failed to make reasonable adjustments by refusing to approve the release of any funds sought (even though I don’t believe that they have any legal grounds on which they can withhold the portion required for donor compensation). My wife and I believe that her application is being treated less favourably than a person who might need to undergo specialist IVF treatment in the US, but not need to purchase ova to treat their infertility. We believe that this is a direct breach of her human rights.

The position of the Commonwealth

20    The Commonwealth accepts that the Court has the power to make orders of the kind sought in the interlocutory application. It points to the power to order discovery (Federal Court Rules, r 20.11); the power to order production to the Court of documents in the Commonwealth’s control relating to an issue in the proceeding (r 20.35); the power to require the Commonwealth to answer interrogatories (r 21.01); the power to issue a subpoena to the Commonwealth to produce certain documents (rr 24.01, 24.12); and, indeed, the power to make any order the Court considers appropriate in the interests of justice (r 1.32).

21    Nevertheless, the Commonwealth opposes the making of an order in the present case on the ground that none of the six individuals could give evidence relevant to the issues in the proceeding. For the reasons given below, the Commonwealth is correct and the interlocutory application must be dismissed.

Consideration

22    Whatever the foundation for the Court’s power may be, whether the proposed order should be made depends on whether the purpose for which it is sought is a legitimate forensic purpose.

23    What little evidence there is suggests that the six individuals were acting on behalf of APRA at all relevant times. There is no evidence that they were employed at any such time by the Commonwealth. The letters refusing Ms Day’s applications, which are annexed to her affidavit, were signed by delegates of APRA. There is no evidence to implicate them in the Department’s refusal to interfere with APRA’s decisions. APRA is not a Commonwealth Department; it is an independent statutory authority established as a body corporate under the Australian Prudential Regulation Authority Act 1998 (Cth). The complaint to the AHRC was made against the Department, not against APRA, and APRA is not a party to this proceeding. Accordingly, it is the conduct of the Commonwealth, more particularly the Department, with which this proceeding is concerned, not the antecedent processes. In the circumstances, the application is misconceived.

24    Even if the Commonwealth is somehow liable for the decisions of APRA made before responsibility for early release of superannuation on compassionate grounds was transferred to the Department, I am not satisfied that the order sought serves any legitimate forensic purpose.

25    First, there is no satisfactory evidence that Adaem, Chloe, Yumi or Maureen played a part in any decision to deny Ms Day access to her superannuation. For this reason alone I would not make any order that their contact details be supplied to the applicants.

26    More fundamentally, the amended originating application does not take issue with the proposition that the reason given for the decision was that Ms Day’s fertility treatment would be unlawful in Australia. Indeed, the grounds upon which relief is sought turn on that reason. To the extent that the substantive proceeding involves a claim of unlawful discrimination, the complaint appears to be that Ms Day’s application for early release of her superannuation was refused on the basis that the fertility treatment she was seeking was unlawful in Australia. It appears that the applicants’ case is that the decision-makers should not have taken into account the illegality of the proposed treatment in Australia (it being a factor not mentioned in the relevant legislation) or Ms Day’s infertility and the fact that they did amounted to unlawful discrimination. The motivations and “directions” of the named individuals are irrelevant to this issue.

27    During the interlocutory hearing, however, Mr Munday said that he would be arguing that the reasons given by the decision makers were not the true reasons Ms Day’s applications were refused. The true reason, he submitted, was his wife’s infertility.

28    To the extent that this complaint is simply another way of expressing Mr Munday’s argument about unlawful discrimination, for the reasons given above, I am not satisfied that the motivations of the named individuals are relevant. To the extent that Mr Munday seeks the information to make out a case of partiality or bad faith, I am not satisfied that there is a legitimate forensic purpose in providing the information.

29    In Wingecarribee Shire Council v Lehman Brothers Australia Ltd (No 4) [2010] FCA 1128 at [20] Rares J said of a subpoena to produce documents:

Whether a subpoena has a legitimate forensic purpose is to be ascertained by reference to an assessment as to whether the Court is satisfied that it is “on the cards” (to use the expression of Gibbs J in Alister v The Queen (1984) 154 CLR 404 at 414) that the documents would materially assist the subpoenaing party in relation to the proceedings: see also R v Saleam (1989) 16 NSWLR 14 at 18A-F per Hunt J with whom Carruthers and Grove JJ agreed. This filter prevents the use of the subpoena as a mere “fishing expedition”.

30    The reference to a “fishing expedition” picks up what was said by Jordan CJ in Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575:

[A] party is no more entitled to use a subpoena … than he is a summons for interrogatories for the purpose of “fishing,” i.e., endeavouring, not to obtain evidence to support his case, but to discover whether he has a case at all …

31    The same principle applies to applications for discovery (see WA Pines Pty Ltd v Bannerman (1980) 30 ALR 559) and leave to administer interrogatories (see Austal Ships Pty Ltd v Incat Australia Pty Ltd (No 3) (2010) 272 ALR 177; [2010] FCA 795). Logically, they must also apply to the way in which the Court exercises the power given to it in r 1.32.

32    Upon the material before the Court, the interlocutory application is properly characterised as a fishing expedition. His contention that the reasons given were not the real reason is but an allegation. In Minister for Immigration & Multicultural & Indigenous Affairs v Wong [2002] FCAFC 327, the Full Court held at [32] in relation to discovery and interrogatories:

It is clear from Bannerman that a mere allegation, in the absence of something more, would not suffice to require discovery and it may be said here interrogatories. In fact the case concerned both interrogatories and discovery and did not suggest any difference in principle between the two. What that something more is will depend on the particular circumstances of the case. In some cases (the present is not one) there may be evidence upon which it is open to conclude that the matter into which enquiry is sought may be made out so that discovery or interrogatories may be appropriate. In other cases it may be possible by reference to known facts to draw inferences which then found a suspicion. But mere suspicion not “grounded” on evidence or inference will not suffice.

33    Mr Munday’s allegation that the decisions were made for reasons other than those provided is a suspicion that is not grounded in any evidence. There is no basis to conclude that any evidence that any of the six individuals could give would assist the applicants’ case (materially or at all). The interlocutory application is an attempt “not to obtain evidence to support [their] case, but to discover whether [they have] a case at all”: Commissioner for Railways v Small at 575.

34    It follows that the interlocutory application must be dismissed. There is no reason why costs should not follow the event.

Associate:

Dated:    12 April 2014