FEDERAL COURT OF AUSTRALIA

Bickle v State of Victoria (Victoria Police) [2020] FCA 168

ORDERS

THE COURT ORDERS THAT:

1.    On or before Wednesday, 4 March 2020:

(a)    the parties are to confer and, if possible, agree on suitable orders by which the respondent’s interlocutory application dated 24 October 2019 should be determined consistently with the attached reasons; and

(b)    in the event that such an agreement is reached, the respondent is to provide by email addressed to the chambers of Justice Snaden a minute of orders reflecting that agreement.

2.    In the absence of agreement as per order 1 above, each party is to file and serve, by no later than Wednesday, 4 March 2020, a minute of the orders by which they propose that the respondent’s interlocutory application dated 24 October 2019 should be determined consistently with the attached reasons.

3.    Further orders will be made in chambers by way of determination of the respondent’s interlocutory application dated 24 October 2019.

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

REASONS FOR JUDGMENT

SNADEN J:

1    By his amended points of claim dated 26 September 2019, the applicant charges the respondent with having subjected him to various forms of unlawful discrimination contrary to the Disability Discrimination Act 1992 (Cth) (hereafter, the “DD Act”).

2    The conduct at the centre of those allegations is an altercation that the applicant claims to have had in February 2018 with, amongst others, the principal of his school. The particulars of that altercation are not material—its significance lies in the fact that, nearly five months later, it was the subject of a complaint made by the applicant’s mother to the respondent, Victoria Police. It is the conduct in which Victoria Police then engaged (or didn’t engage) in response to that complaint (hereafter, the “Police Complaint”) that is at the heart of these proceedings.

3    By paragraph 18 of his amended points of claim, the applicant pleads that (errors original):

…in contravention of section 24 of the Disability Discrimination Act (Cth) 1992 the respondent has discriminated against the applicant directly, on the grounds of the applicant's disability;

(a)    by refusing to provide the services of investigation of a crime where the applicant was victim;

(b)    in the manner in which the respondent has provided the services of crime investigation.

4    By an interlocutory application dated 24 October 2019, Victoria Police moves the court for orders that that paragraph (and several others within the amended points of claim, none of which, in the interests of brevity, shall here be replicated) be struck out for want of a reasonable cause of action. It maintains that the bulk (but, for present purposes, not all) of the conduct that the applicant’s amended points of claim attributes to it—comprising, in particular, the manner in which it investigated and determined the Police Complaint—was not conduct to which the DD Act applies. Whether or not that contention is true turns upon whether or not the conduct in question constituted the provision, non-provision or conditional provision of a “service” of a kind to which s 24 of the DD Act refers.

5    For the reasons that follow, I accept Victoria Police’s contention. By conducting itself as it did by way of investigation of the applicant’s Police Complaint, Victoria Police was not providing, nor declining to provide, a service to the applicant. Insofar as his case proceeds upon the contrary premise—and it was not in question that it does—it cannot succeed.

6    Additionally, the respondent complains that part of the applicant’s amended points of claim is embarrassing and apt to mislead or confuse. That part concerns a police interview to which the applicant claims to have been subjected. It is said to be objectionable because it alleges, in only the most peremptory of ways, that the interview was conducted in the way that it was because of the applicant’s disabilities. The respondent contends that it is unclear how that allegation is put.

7    For the reasons that appear below, I do not accept Victoria Police’s contention in that regard. Although the applicant’s amended points of claim is not well drafted—a reality that senior counsel for the applicant voluntarily conceded—it is sufficiently clear that he maintains that the conduct of the interview in question was discriminatory because it was conducted the way that it was (which is to say, in a manner that is alleged to have visited prejudice upon him) because of the applicant’s disabilities.

Legislation

8    Section 24 of the DD Act provides as follows:

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.

9    Sections 5 and 6 of the DD Act identify the circumstances in which a person is considered to have discriminated against another person. It is not necessary to replicate those provisions.

10    Section 4(1) of the DD Act defines what is meant by (amongst other things) “services”. It relevantly provides as follows, namely:

“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.

Relevant principles

11    The respondent’s interlocutory application is made under r 16.21 of the Federal Court Rules 2011 (Cth). Before me, there was no material dispute as to the principles that I am bound to apply in determining it. In Varasdi v State of Victoria [2018] FCA 1655 (O’Callaghan J), the court made the following observations, which I gratefully adopt:

5    A pleading must ensure that the opposing party can know, with sufficient clarity, the case which it is required to meet; it must state all the material facts to establish a reasonable cause of action; and it must be in intelligible form. It cannot be vague, ambiguous, inconsistent or lacking in coherence.

…

9    A pleading under the DDA must put the respondent on notice of the case it is required to meet, rather than asking the respondent or the court to identify a case for it. The pleading must do “more than scope out the nature of the problem, and leave it to the trial of the action for the content of the respondent’s omissions to become apparent”: Sievwright v State of Victoria [2013] FCA 964 at [48] (Jessup J).

12    The court may order that all or part of a pleading be struck out if it fails to disclose a reasonable cause of action, is likely to cause prejudice, embarrassment or delay in the proceeding, or is otherwise an abuse of the court’s process. Such orders are not lightly to be made: Carrigan v Honourable Senator Michaelia Cash [2016] FCA 1466, [43] (White J).

Evidence

13    Victoria Police’s interlocutory application was supported by an affidavit affirmed by its solicitor, Mr Matthew Peter Garozzo, on 24 October 2019. It is not necessary to set out in detail the content of that affidavit. It was read without objection.

14    The applicant filed an affidavit affirmed on his behalf by his solicitor, Mr Bilal Katar, on 10 February 2020. To that affidavit were attached several documents originating from Victoria Police, in which various of its functions—including those to which the present proceedings relate—were described as “services”. Again, that affidavit was read without objection.

“Services” in the context of police work

15    It is not in contest (nor sensibly to be doubted) that the investigation of alleged criminal offending is one of the functions that Victoria Police is entrusted to perform. It does so with a view to discharging another, related function: namely, the detection and apprehension of alleged offenders.

16    The question upon which the present applicant turns is whether or not Victoria Police should be understood to be providing a service, for the purposes of s 24 of the DD Act, when it does (or does not do) certain things in the process of investigating allegations of criminal conduct.

17    Clearly enough, police conduct that is engaged in by way of investigation of alleged criminal wrongdoing will (or, at least, might) inure to the benefit of a person or persons who claim to have been its victim or victims. However, conduct does not qualify as a service merely because it is of benefit to one or more people: IW v City of Perth (1997) 191 CLR 1, 15 (Brennan CJ and McHugh J).

18    There are authorities that recognise that certain aspects of police work might amount to the provision of services. The New South Wales Court of Appeal, for example, has held that “…the initial investigation of complaints of violence and the protection of the victims of violence provide services to the victims”: Commissioner of Police v Mohamed (2009) 262 ALR 519 (“Mohamed”), 536 [87] (Handley AJA, with whom, on that point, Spiegelman CJ and Basten JA agreed). There is English authority to like effect: Farah v Commissioner of Police of the Metropolis [1998] QB 65 (“Farah”), 78 (Hutchison LJ, with whom Otton and Peter Gibson LJJ agreed). With respect, such reasoning might readily be understood: in responding (by way of “initial investigation”) to a call for assistance—and, thereby, delivering would-be victims of criminal offending from harm’s way—police act in a manner that confers benefits uniquely upon those would-be victims in their capacities as such.

19    The same is not true in respect of subsequent investigation processes and the decisions that arise therefrom as to what, if any, action should be taken against those accused of criminal conduct. The investigation of alleged wrongdoing and the prosecution (or otherwise) of alleged wrongdoers are not functions that the police undertake so as to benefit alleged victims. They are undertaken because orderly civil society and the proper administration of criminal justice requires that they be undertaken. Plainly, that is of benefit to the community as a collective, as well as individually to those who might be the victims of particular wrongdoing. But those functions are discharged in satisfaction of a duty with which the police are entrusted; not so as to confer a benefit upon any particular individual (including those claiming to be the victims of the conduct under investigation).

20    In Djime v Kearnes [2019] VSC 117 (Cavanough J) (“Djime”), the Supreme Court of Victoria referred with apparent approval (at [130] and following) to reasoning adopted by an administrative tribunal that:

Services are not provided when police investigate an alleged offence, question an alleged offender, arrest an alleged offender, deal with a bail application, decide whether or not to lay charges, decide whether or not to prosecute charges and decide how a matter will proceed in court…

21    In Mohamed, Handley AJA, in obiter (at [87]), distinguished requests for police assistance from “…the later stages of an investigation and decisions whether or not to prosecute or arrest…alleged perpetrators”. The latter, he said, would generally not qualify as the provision of a service. That reasoning is consistent with Cavanough’s J reasoning in Djime, and with other superior and inferior court and tribunal rulings: Secretary of the Department of Justice and Industrial Relations v Anti-Discrimination Commissioner (2003) 11 Tas R 324, 342 (Underwood J); Kavanagh v Victorian WorkCover Authority (2011) 215 IR 108 (Judge Lacava VP).

22    Conduct engaged in by police in the process of investigating alleged criminal wrongdoing is not conduct that amounts to the provision of a service, whether at large or to those who claim to have been the victims of particular wrongdoing. The same is true of the decisions that are made—and the conduct in which police engage in consequence of the decisions that are made—about how or if those investigations should proceed to the laying of charges or the prosecution of offenders.

Application to the present case

23    The applicant alleges that there were aspects to the manner in which Victoria Police investigated his Police Complaint that subjected him to prejudice. In short, he is (or, perhaps more accurately, he and his litigation representative are) not happy with the way that that Police Complaint was investigated, nor with its apparent outcome (which was that nobody was held to account by way of criminal charges for the conduct upon which it focused). By the amended points of claim, the applicant attributes his various alleged disabilities (the particulars of which need not here be explored) as at least a reason as to why Victoria Police did the things that he accuses it of having done.

24    During the hearing of the interlocutory application, senior counsel for the applicant conceded that conduct comprising what might loosely be described as a police investigation was not conduct engaged in by way of the provision of a service. That concession was, he continued, consistent with the preponderance of authority, both in Australia and abroad. With respect (and for the reasons that I have set out above), that was a concession appropriately made. It necessarily requires excision of at least some passages of the amended points of claim with which the respondent takes issue.

25    Notwithstanding that concession, the applicant continues to contend that the respondent’s response (or non-response) to his Police Complaint qualifies as conduct engaged in by way of the provision of a service. How that contention sits alongside the concession just referenced was not easy to follow. In summary form, the applicant suggests that that conduct (the response or non-response to his Police Complaint) was conduct in which Victoria Police engaged by way of initial response to his Police Complaint; and that, that being the case, it should be seen in the same light as was the conduct in cases such as Mohamed and Farrah.

26    I do not accept that submission. The incident (or incidents) to which the Police Complaint is said to have been directed were entirely historical, which is to say that they occurred nearly five months before the Police Complaint was made. There is no suggestion in the amended points of claim that the wrongdoing alleged by the Police Complaint was ongoing, or that the applicant was otherwise at risk of falling victim to ongoing conduct such as might require police assistance (as was the case in both Mohamed and Farrah). There is simply nothing about the conduct in which Victoria Police engaged after receipt of the Police Complaint in this case that is comparable to the police conduct with which those cases were concerned. Everything that is alleged to have been done (or not done) is alleged to have been done (or not done) in the course of investigating and/or determining (that is to say, deciding not to pursue charges in respect of) the Police Complaint. As the authorities make clear (and the applicant, in any event, conceded), that is not conduct that is properly understood as being directed toward the provision of a service.

27    That Victoria Police has seen fit to publish various documents in which it self-describes as “services” some of its functions—including some that are the subject of the present proceedings—is of little moment. One might speculate as to the reason or reasons for which Victoria Police communications (or other) personnel have seen fit to so describe—in my view, misdescribe—some police duties. It may simply be an erroneous conclusion that some within the organisation have formed. Alternatively, it may be “spin” designed to portray Victoria Police in a positive public light. Whatever the reasons might be, they do not alter the true character of the conduct that is presently in issue.

The “VARE” interview

28    In the course of investigating his Police Complaint, the respondent is said to have subjected the applicant to what is known as a “VARE” (visual and audio recording of evidence) interview. The applicant complains that the respondent conducted that interview in a manner inconsistent with internal Victoria Police guidelines that are intended to regulate how those with disabilities should be interviewed. By its interlocutory application, the respondent seeks to have aspects of that part of the applicant’s case struck out, not because it is said that the conduct in question was not conduct that amounted to (or that otherwise was engaged in as part of) the provision of a service; but, instead, because the amended points of claim does not properly allege a causal connection between the applicant’s disabilities and the prejudice that the conducting of the interview is said to have visited upon him.

29    Paragraph 17 of the amended points of claim is in the following terms:

In the premises set out in paragraphs 3 to 16A above, the applicant has been directly and unlawfully discriminated against contrary to s. 5 of the Disability Discrimination Act 1992 (“the DDA”) in that he has been treated less favourably because of his disability:

(a)    he has been treated less favourably than Victoria Police would treat a person without a disability because the complaint made on his behalf was at first not investigated at all, and subsequently he was subjected to a VARE interview without a support person being present;

(b)    because of the lack of a support person he was not properly able to communicate with the interviewer and give clear answers or respond with a full understanding of what was happening;

(c)    the VARE process was not explained to him in a language and at a level of detail appropriate for a person with his disability (contrary to paragraph 6.2 of the VARE Procedural Guidelines) and no support person was allowed into the room (cf. the provision of an Auslan interpreter for a deaf person);

(d)    he was a child victim and under paragraph 11.3 of the VARE Procedural Guidelines a parent/guardian or independent person should have been present when the statement was being taken from him; but no such person was present, and no parent/guardian was able to monitor the interview.

30    There is an inherent circularity to the applicant’s contention: he alleges, simultaneously, that he was denied the benefit of certain guidelines that are designed to protect the disabled (and was, thereby, subjected to relevant prejudice) and that his disabilities were at least a reason as to why he was denied them. It is unclear why a respondent might deliberately withhold the benefit of such guidelines because a person exhibits what might fairly be presumed are the very characteristics in respect of which they were adopted.

31    Therein lies the respondent’s principal complaint on this aspect of the case that is alleged against it. It complains that the amended points of claim fails to properly associate the impugned conduct (namely, the VARE interview) with a prohibited attribute (namely, the applicant’s disability). It is said that the mere mention of the applicant’s disability as a motivation behind that conduct is insufficient. Counsel for the respondent relied in that regard upon the observations of O’Callaghan J in Varasdi v State of Victoria [2018] FCA 1655. His Honour there observed (at [37]):

Paragraph [72] says that “[t]he reasonable adjustments were not provided due to and/or because of [the applicant’s] disabilities”. However, no particulars or material facts are relied on. The mere assertion of causation cannot establish causation.

32    His Honour went on (at [39]) to conclude that the pleading before him was deficient because:

The failure to identify how the applicant was treated less favourably than a student without her disabilities in circumstances that are not materially different has the consequence that there is no proper cause of action pleaded.

33    Paragraph 17 of the amended points of claim, as senior counsel for the applicant voluntarily conceded, is not well pleaded. Nonetheless, I cannot agree that it fails to identify the attribute by reason of which the incidents of discriminatory conduct there enumerated are said to have contravened the DD Act. That attribute is identified in the chapeau of that paragraph: the relevant incidents are said to have been visited upon the applicant “…because of his disability”. It might well be that proof of those discrete allegations will be difficult; and one might readily understand the respondent’s criticism that the paragraph proceeds upon an unlikely circularity (namely, that the respondent would adopt procedures aimed at the protection of vulnerable witnesses and then not only fail to apply them to a particular person, but fail to apply them because that person has the very vulnerability for the protection against which they were adopted). But, that future, potential difficulty aside, I do not accept that paragraph 17 of the amended points of claim fails to identify why it is said that the various incidents of conduct were engaged in in contravention of the DD Act. It was, so it is said, because of the applicant’s disability.

Conclusions

34    The respondent, perhaps generously, does not presently suggest that the alleged subjection of the applicant to the VARE interview could not amount to conduct engaged in as part of the provision of a service (although, as was made clear, it will likely make that submission at trial). For present purposes, that submission is reserved for the remainder of the conduct that the applicant’s amended points of claim alleges against it.

35    Having accepted that the bulk of the conduct alleged against the respondent is conduct that it is alleged to have engaged in by way of investigation and determination of the Police Complaint (and, therefore, is conduct that could not be said to have been engaged in in connection with the provision of a service), it follows that much of the amended points of claim should be struck out. Precisely how much is difficult to pinpoint, in part because of the rolled-up manner in which much of it has been pleaded.

36    The parts of the amended points of claim that pertain to the VARE interview, however, are not deficient in the way that the respondent contends and ought not now to be struck out. Again, given the overlapping way in which the amended points of claim deals with the VARE interview and the other conduct, it is difficult to precisely separate the objectionable aspects of the pleading from those that should survive.

37    That difficulty is potentially complicated by the more pervasive shortcomings that plague the amended points of claim. Senior counsel for the applicant candidly described that document as something of a “dog’s breakfast”. It might well be that, in light of the observations made above (and the orders that will have to be made on account of them), some effort is made to bring the applicant’s pleading more into line with what the court’s rules require.

38    With those observations made, I propose to give the parties time to confer as to a form of orders reflective of these reasons. In the absence of agreement as to suitable orders that the court should make in light of what is said above (including with respect to the question of costs arising from the respondent’s interlocutory application), I will make further orders to that end in chambers.

Associate:

Dated:    21 February 2020