FEDERAL COURT OF AUSTRALIA

Connor v State of Queensland (Department of Education and Training) [2017] FCA 1060

ORDERS

THE COURT ORDERS THAT:

1.    Peter Connor be appointed as litigation representative for the applicant.

2.    The applicant’s title be amended to “Beau Connor (by his litigation representative Peter Connor)”.

3.    Service of the application to appoint a litigation representative on the applicant be dispensed with.

4.    The application to transfer the matter to the Federal Circuit Court of Australia is dismissed.

5.    The costs of the interlocutory applications filed on 14 July 2017 and 26 June 2017 are reserved.

6.    The matter is listed for a case management hearing on 13 September 2017 at 9.30 am.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    An originating application has been filed on behalf of the applicant alleging that the respondents contravened s 32 of the Disability Discrimination Act 1992 (Cth). The applicant seeks an apology, damages, a declaration and costs.

2    There are presently two interlocutory applications before the Court. The first is for an order that the applicant’s father be appointed as litigation representative for the applicant. That application is not opposed by the respondents.

3    In the second application, the respondents seek an order that the matter be transferred to the Federal Circuit Court of Australia. That application is opposed by the applicants.

4    The parties have filed written submissions in respect of the respondents’ interlocutory applications. Both interlocutory applications are to be determined on the papers.

Background

5    On 2 July 2016, the applicant’s father, Peter Connor, made a complaint to the Australian Human Rights Commission (the Commission) alleging that the respondents had discriminated against the applicant.

6    The contraventions are alleged to have occurred between 2011 and 2015. The applicant was then a student at a public primary school in Queensland. He is presently 11 years old.

7    The applicant’s complaint to the Commission states that:

[The applicant] has Autism Spectrum Disorder, specific learning disabilities, ADHD and Anxiety. He was attending Kawungan State School during the period of the complaint. During that period, [the applicant] began exhibiting behaviours of concern. Rather than intensive expert assistance being provided, [the applicant] was subjected to multiple suspensions, restraint, violence and seclusion. Due to the treatment he experienced, he:

•    was unable to equally access the curriculum;

•    experienced academic delay;

•    became distressed, anxious and depressed;

•    was subjected to physical violence that put his life at risk.

8    On 7 April 2017, a delegate of the President of the Commission wrote to the applicant advising that there was no reasonable prospect of the matter being settled by conciliation and terminating the complaint under s 46PH(1)(i) of the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act).

9    On 1 June 2017, the originating application was filed in the New South Wales Registry of this Court. On 26 June 2017, the respondents filed an interlocutory application seeking orders that the proceeding be transferred to the Queensland Registry and to the Federal Circuit Court. On 27 June 2017, by consent, a judge of this Court ordered that the proceeding be transferred to the Queensland Registry.

Application to appoint a litigation representative

10    On 10 July 2017, an interlocutory application was filed seeking an order that Peter Connor be appointed as the litigation representative for the applicant.

11    The respondent has not opposed the interlocutory application, and no submissions have been provided by either party on the issue.

12    Rule 9.63 of the Federal Court Rules 2011 (Cth) (the Rules) states:

r 9.63    Appointment of litigation representative by the Court

(1)    A party or an interested person may apply to the Court for an order appointing a person as a litigation representative.

Note:    Interested person, in relation to a person under a legal incapacity, is defined in the Dictionary.

(2)    A copy of the application must be served on the person under a legal incapacity.

(3)    The application must be accompanied by an affidavit stating:

(a)    that the person for whom the appointment is to be made is a person under a legal incapacity and giving details of the nature of the legal incapacity; and

(b)    that the proposed litigation representative:

(i)    has consented, in writing, to the appointment; and

(ii)    is a person who, under rule 9.62, may be appointed as a litigation representative.

13    A copy of the application has not been served on the applicant in accordance with r 9.63(2) of the Rules. However, the Court may dispense with that requirement: Amir v Minister for Immigration and Citizenship [2012] FCA 1102 at [20]. As the applicant is a minor and evidently has disorders impairing his cognition, I am satisfied that it is appropriate to dispense with service.

14    In compliance with r 9.63(3) of the Rules, an affidavit affirmed by Claire Pirie, a solicitor acting for the applicant, accompanies the application. Ms Pirie deposes on information and belief that the applicant is under a legal incapacity by reason of his age, and annexes a document signed by Peter Connor indicating that he consents to being appointed as litigation representative.

15    An order will be made appointing Peter Connor as the applicant’s litigation representative.

16    The applicant was incorrectly named in the originating application as “Beau Connor (by his next friend Peter Connor)”. An order will be made amending the title of the applicant so that it reads “Beau Connor (by his litigation representative Peter Connor)”.

Application to transfer proceeding to Federal Circuit Court

17    Section 32AB of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) provides, relevantly:

s 32AB    Discretionary transfer of civil proceedings to the Federal Circuit Court

(1)    If a proceeding is pending in the Court, the Court may, by order, transfer the proceeding from the Court to the Federal Circuit Court.

(2)    The Court may transfer a proceeding under subsection (1):

(a)    on the application of a party to the proceeding; or

(b)    on its own initiative.

…

(6)    In deciding whether to transfer a proceeding to the Federal Circuit Court under subsection (1), the Court must have regard to:

(a)    any Rules of Court made for the purposes of subsection (4); and

(b)    whether proceedings in respect of an associated matter are pending in the Federal Circuit Court; and

(c)    whether the resources of the Federal Circuit Court are sufficient to hear and determine the proceeding; and

(d)    the interests of the administration of justice.

18    The power to make an order under s 32AB(1) of the FCA Act is discretionary and may be exercised even where one party opposes such an order being made: Sagacious Legal Pty Ltd v Lumley General Insurance Limited t/as Lumley Special Vehicles [2009] FCA 763 at [4] (Flick J).

19    Rule 27.12 of the Rules provides, relevantly:

r 27.12    Factors to be taken into account

…

(3)    For…a proceeding, the parties should address the following:

(a)    whether the appeal or proceeding is likely to involve questions of general importance;

(b)    whether it would be less expensive and more convenient to the parties if the appeal or proceeding were transferred;

(c)    whether an appeal or proceeding would be determined more quickly if transferred;

(d)    the wishes of the parties.

20    The respondents’ submissions can be summarised as follows:

(1)    The principles pertaining to allegations of discrimination under the Act are well established and do not involve any issues which the Federal Circuit Court could not adequately address.

(2)    As the proceedings have only just commenced, and as no pleadings or evidence has been filed by either party, there will be no delay in resolving the matter, or prejudice to either party, by transferring the matter to the Federal Circuit Court.

(3)    The matter is likely to be heard and determined more quickly and at less cost if determined by the Federal Circuit Court.

(4)    Transferring the matter to the Federal Circuit Court would be consistent with the overarching purpose of civil practice and procedure in this Court, as outlined in s 37M(1) of the FCA Act.

21    In response, the applicant argues that:

(1)    The case gives rise to questions of general importance, particularly as there has not been judicial consideration by this Court to date as to the appropriate method to use for the assessment of damages in cases involving discrimination against children with disabilities.

(2)    Due to the number of witnesses and the matter’s complexity, there is no evidence that the proceeding will be determined more quickly and at less cost in the Federal Circuit Court.

Whether the matter is of general importance

22    The applicant claims damages pursuant to s 46PO(4)(d) of the AHRC Act. That section provides that if satisfied that there has been unlawful discrimination by any respondent, the Court may order that a respondent pay an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent.

23    The applicant argues that there are “only a handful of superior court decisions dealing with the [Disability Discrimination Act] as it relates to children with disabilities in education”. However, there are a number of judgments of the Court which consider how damages are to be assessed under s 46PO(4)(d) of the AHRC Act. It is a remedial and discretionary provision that allows judicial officers to take into account a range of factors in determining what is an appropriate sum “by way of compensation”: Qantas Airways Ltd v Gama (2008) 167 FCR 537 at [99]: Clarke v Catholic Education Office & Anor [2003] FCA 1085 at [83] (appeal dismissed in Catholic Education Office & Anor v Clarke (2004) 138 FCR 121); Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217 at 239; Employment Services Australia Pty Ltd v Poniatowska [2010] FCAFC 92 at [133]. The applicant’s submissions do not suggest that s 46PO(4)(d) operates differently when assessing how damages are to be quantified for children with disabilities discriminated against in the field of education.

24    The relevant principles are well established and involve settled law. The present case does not present issues of such general importance to require that it remain in this Court.

Expedition and Expense

25    Pursuant to s 37M(1) of the FCA Act, the overarching purpose of civil practice and procedure in the Court is to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible. The applicant estimates that the trial will take at least five days. The applicant argues that there is no evidence to suggest that the proceeding would be determined more quickly if it were to be heard in the Federal Circuit Court. Likewise, it is not apparent that the proceeding would be determined more quickly in this Court if the application were refused. There is no reason to conclude that a hearing would be delayed if the matter were transferred to the Federal Circuit Court, particularly where the proceeding has only recently been commenced.

26    There are no proceedings in respect of any associated matters pending in the Federal Circuit Court. I assume that the resources of the Federal Circuit Court are sufficient to hear and determine the proceeding.

27    The legal costs that will inevitably be incurred can be expected to be lower in the Federal Circuit Court. However, if the matter proceeds in this Court, it would be open to the Court to make appropriate orders for costs, including, for example, that any order for costs in the applicant’s favour be on the Federal Circuit Court’s scale of costs. On the other side of the equation, the applicant’s litigation representative is apparently willing to take the risk that he may be ordered to pay costs on the Federal Court scale, and it has not been suggested that he will be unable to satisfy any costs order. In the circumstances, I do not think that the issue of costs carries significant weight.

28    The considerations are finely balanced. The applicant is permitted under s 46PO(1) of the AHRC Act to commence proceedings in this Court and, through his father, has elected to do so. Weight should be given to the applicant’s choice of forum: see National Mutual Holdings Pty Ltd v Sentry Corporation (1988) 19 FCR 155 at 162. That factor tips the scales in this case.

29    It would not be in the interests of the administration of justice to transfer the matter to the Federal Circuit Court. The respondent’s interlocutory application will be dismissed.

Associate:    

Dated:    6 September 2017