FEDERAL COURT OF AUSTRALIA

Reurich v Shoalhaven Heads Bowling and Recreational Club Ltd

[2020] FCA 427

ORDERS

THE COURT ORDERS THAT:

1.    The Originating Application and Statement of Claim be struck out pursuant to r 16.21 of the Federal Court Rules 2011 (Cth).

2.    The Applicant have liberty to file and serve a Further Statement of Claim certified by a lawyer in accordance with r 16.01(c) of the Federal Court Rules 2011 (Cth) by 2 June 2020.

3.    The Applicant is to pay the costs of the Respondent in respect to the hearing of its Interlocutory Application filed on 4 October 2019.

4.    The proceeding is stood over for further mention on 6 July 2020 at 9:30am.

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

REASONS FOR JUDGMENT

FLICK J:

1    In November 2018, the Applicant in the present proceeding (Mr Peter George Reurich) was granted provisional membership of the Shoalhaven Heads Bowling & Recreation Club Ltd (the “Shoalhaven Heads Club”), however, his application for membership as an ordinary member was rejected.

2    Mr Reurich asserts that the rejection of his application constituted unlawful discrimination and victimisation.

3    In August 2019, he filed in this Court an Originating application under the Australian Human Rights Commission Act 1986 (the “Originating Application”). The Respondents to that proceeding were the Shoalhaven Heads Club and Mr Michael Bowen, the General Manager of the Club.

4    In September 2019, Mr Reurich also filed a document characterised as a Statement of Claim. Given the difficulties inherent in both the Originating Application and the Statement of Claim, Mr Reurich, in November 2019, supplemented the manner in which he sought to advance his claim by a further document titled Points of Claim.

5    The Respondents filed a Defence in October 2019.

6    A number of affidavits have been filed by the parties, together with an Outline of Evidence proposed to be given by persons on behalf of the Respondents.

7    Now before the Court is an Interlocutory Application, filed by the Respondents on 5 November 2019, seeking either an order that the proceeding be summarily dismissed pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (the “Federal Court Act”) and r 26.01(1)(a) of the Federal Court Rules 2011 (Cth) (the “Federal Court Rules”), or an order that the Originating Application and the Statement of Claim be struck out pursuant to r 16.21 of the Federal Court Rules.

8    At the outset of the hearing of that Interlocutory Application, Mr Reurich abandoned any claim he sought to pursue as against Mr Bowen. The sole case which he now wishes to pursue is one as against the Shoalhaven Heads Club.

9    It is concluded that:

    no order should be made dismissing the proceeding against the Shoalhaven Heads Club pursuant to s 31A(2) of the Federal Court Act (or r 26.01(a) of the Federal Court Rules);

and that:

    the Originating Application and the Statement of Claim should be struck out pursuant to r 16.21 of the Federal Court Rules;

but that:

    Mr Reurich should be given liberty to re-plead his case by the filing of a Statement of Claim, certified by a lawyer in accordance with the requirements set out in r 16.01(c) of the Federal Court Rules.

These conclusions follow principally from an understanding of the regime pursuant to which discrimination claims may be pursued in this Court, subsequent to consideration by the Australian Human Rights Commission and, more importantly, the form of the existing “pleadings”.

The Role of the Commission & Discrimination

10    The claims made by Mr Reurich, he asserts, were the subject of a prior complaint to the Australian Human Rights Commission (the “Commission”).

11    The Commission in July 2019 terminated his complaint “alleging victimisation under the Disability Discrimination Act …”. The complaint was terminated pursuant to s 46PH(1B)(b) of the Australian Human Rights Commission Act 1986 (Cth) (the “Human Rights Commission Act”).

12    Relevantly for present purposes, s 46PO(1) of the Human Rights Commission Act provides (in part) as follows:

If:

  (a)    a complaint has been terminated by the President under … section 46PH; and

(b)    the President has given a notice to any person under subsection 46PH(2) in relation to the termination;

any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Circuit Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.

In accordance with s 46PH(2), a notice was given to Mr Reurich that his complaint against the Shoalhaven Heads Club had been terminated under s 46PH(1B)(1)(b). Mr Bowen (it may be noted) was not a party to any complaint made by Mr Reurich to the Commission.

13    The regime set forth in the Human Rights Commission Act for the resolution of claims as to discrimination has been summarised by Perry J in Picos v Australian Federal Police [2015] FCA 118 as follows:

4.2 Statutory preconditions for commencing proceedings in the Federal Court for a contravention of the SD Act

[34]    Part IIB of the AHRC Act establishes a regime for redress for “unlawful discrimination”. “Unlawful discrimination” is defined in s 3 of the AHRC Act to mean any acts, omissions or practices that are unlawful under Part 4 of the Age Discrimination Act 2004, Part 2 of the Disability Discrimination Act 1992, Part II of the Racial Discrimination Act 1975, and, relevantly, Part II of the SD Act (including any conduct which is an offence under s 94) in which s 28G appears (collectively, the Unlawful Discrimination Laws). Section 28G makes it unlawful for a person to sexually harass another person in the course of providing, seeking or receiving goods or services.

[35]    Part IIB of the AHRC Act prescribes a number of steps:

a)    lodging a written complaint with the AHRC alleging unlawful discrimination (s 46P);

b)    referring the complaint to the President of the AHRC (s 46PD);

c)    requiring the President to inquire into the complaint and attempt to conciliate it (s 46PF(1));

d)    providing that the President may terminate a complaint on a number of grounds including that the alleged unlawful discrimination is not unlawful discrimination, the complaint was lodged more than 12 months after the alleged unlawful discrimination occurred, or the President is satisfied that the complaint was trivial, vexatious, misconceived or lacking in substance (s 46PH);

e)    affording the affected person the right, where a complaint is terminated and the President has given notice, to apply within 60 days to the Federal Court or the Federal Circuit Court alleging unlawful discrimination by one or more of the respondents to the terminated complaint (s 46PO(1) and (2));

f)    limiting the right to pursue a claim to unlawful discrimination through the courts to unlawful discrimination which is the same, or the same in substance, as that which was the subject of the terminated complaint, or arises out of the same acts, omissions or practices (s 46PO(3));

g)    conferring power on the court to grant a range of remedies if satisfied that there has been unlawful discrimination by any respondent, including declaratory relief and compensatory damages (s 46PO(4)).

[36]    It is well established that this regime is an exclusive one for remedying contraventions of the Unlawful Discrimination Laws, including the SD Act: Bropho v Western Australia [2004] FCA 1209 at [29] and [51]-[53] RD Nicholson J (Bropho) and French v Gray (2013) 217 FCR 404; [2013] FCA 263 at [149]-[151] Besanko J (holding that Re East; ex parte Nguyen (1998) 196 CLR 354 at [26], [31]-[32] continued to apply notwithstanding removal of the complaint procedure from (in those cases) the RDA and its re-enactment in Part IIB of the AHRC Act). In other words, a contravention of s 28G of the SD Act gives rise only to a right to invoke the procedures, and to obtain the remedies provided for, in the AHRC Act. As Katzmann J held in Dye v Commonwealth Securities Limited [2010] FCA 720 at [78]-[79]:

Just like the Racial Discrimination Act did when it was enacted, the AHRC Act expressly provides a private remedy for a contravention of s 94 [of the SD Act] and prescribes detailed procedures for obtaining it. That is the remedy the applicant has invoked. In my view it is an exclusive one. The only right that the Act creates is a right to engage the processes prescribed by it and the duties or liabilities that are created are correlative to that right: Re East; Ex parte Nguyen [1998] HCA 73; (1998) 196 CLR 354 at [31]-[32].

It makes no sense for the legislature to establish an elaborate process for the vindication of rights but at the same time to contemplate the use of common law remedies working alongside and independently of it. To do so would defeat the purpose of the system of redress afforded by the Act, which promotes conciliation over litigation. It would undermine s 46PO, which limits the circumstances in which litigation may be pursued. In my opinion, an action as [sic] the case for a breach of s 94 of the SDA is not available.

[37]    Her Honour’s decision in this respect was upheld on appeal in Dye v Commonwealth Securities Limited (No. 2) [2010] FCAFC 118 at [71] which held that neither the AHRC Act, nor the SD Act, created or gave rise to any common law cause of action for relief.

[38]    That being so, there is no jurisdiction to hear an allegation of unlawful discrimination under s 28G of the SD Act unless the conditions in s 46PO of the AHRC Act are satisfied: Bropho at [53]. Justice Gleeson reached the same conclusion in dismissing so much of a claim made by Ms Picos as alleged sex discrimination in Picos v Servcorp Limited [2014] FCA 922 at [22].

(emphasis in original)

14    Given the “exclusive” nature of the regime imposed by the Human Rights Commission Act, a potential difficulty that Mr Reurich would have confronted had he wished to pursue a claim against Mr Bowen in this Court, is that Mr Bowen was never the subject of any complaint made to the Commission and therefore not ‘one or more of the respondents to the terminated complaint’: s 46PO(1) Human Rights Commission Act. In the absence of any notice of termination of any such complaint, this Court would in all likelihood have had no jurisdiction: cf. Clarke v Nursing and Midwifery Council New South Wales [2019] FCA 1782 at [14] per Flick J. But such difficulties need not be resolved. The claims against Mr Bowen have been abandoned.

The claims against the Shoalhaven Club

15    No question is raised by the Shoalhaven Heads Club as to this Court lacking jurisdiction to entertain a complaint as to discrimination under the Disability Discrimination Act 1992 (Cth) (the “Disability Discrimination Act”). A complaint has been made to the Commission, and that complaint has been terminated and a notice given under s 46PH(2) of the Human Rights Commission Act.

16    Counsel for the Shoalhaven Heads Club expressly did not submit that the Court lacked jurisdiction to entertain the claims now sought to be agitated by Mr Reurich by reason of the Commission only resolving a claim that it characterised as victimisation rather than discrimination.

17    The Disability Discrimination Act defines both direct and indirect discrimination. “Direct disability discrimination” is defined in s 5 as follows:

5 Direct disability discrimination

(1)    For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.

(2)    For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

(a)    the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and

(b)    the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.

…

(emphasis in original)

Section 5 and other statutory provisions addressing discrimination more generally are not without difficulty. At its most general, s 5 requires a comparison between persons with and those without a disability and thereafter the section requires a factual analysis as to whether a person has been treated “less favourably” because of the person’s disability: Purvis v State of New South Wales [2003] HCA 62, (2003) 217 CLR 92 (“Purvis”). When addressing the terms of s 5, Gummow, Hayne and Heydon JJ there observed:

[213]    Section 5(1) of the Act requires comparison between the treatment which the discriminator gives, or proposes to give, to the aggrieved person and the treatment that the discriminator would give, or would propose to give, to a person without the aggrieved person's disability “in circumstances that are the same or are not materially different”. If that comparison reveals that the disabled person was treated less favourably, the further question which must be asked is whether that was because of the disabled person's disability. Section 5(1), therefore, requires equality of treatment between the disabled and those who are not. Attention is invited to how the discriminator “treats or would treat a person without the disability” (emphasis added). The “comparator” identified by s 5(1) is “a person without the disability”.

18    The facts of that case, however, well demonstrate the factual and legal difficulties which may surround the application of the terms of that section to a particular claimant. The difficulty in that case arose by reason of the fact that the complainant had a disability which manifested itself by disinhibited and uninhibited aggressive behaviour. The question was whether the comparison was between a person without the disability who engaged in the same violent behaviour and the complainant who engaged in such conduct by reason of his disability. After Purvis, the definition of “disability” in s 4 of the Disability Discrimination Act was amended to expressly include “…behaviour that is a symptom or manifestation of the disability”. For present purposes, it is sufficient to note that the application of s 5 to the facts of a particular case requires some degree of certainty and specificity as to what constitutes “circumstances that are the same or … not materially different”. There is also a degree of specificity and certainty required in considering whether conduct was “because of the disabled person’s disability…”.

19    Indirect discrimination is defined in s 6. That section provides as follows:

6 Indirect disability discrimination

(1)    For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

(a)    the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and

(b)    because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and

(c)    the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability.

(2)    For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

(a)    the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and

(b)    because of the disability, the aggrieved person would comply, or would be able to comply, with the requirement or condition only if the discriminator made reasonable adjustments for the person, but the discriminator does not do so or proposes not to do so; and

(c)    the failure to make reasonable adjustments has, or is likely to have, the effect of disadvantaging persons with the disability.

(3)    Subsection (1) or (2) does not apply if the requirement or condition is reasonable, having regard to the circumstances of the case.

(4)    For the purposes of subsection (3), the burden of proving that the requirement or condition is reasonable, having regard to the circumstances of the case, lies on the person who requires, or proposes to require, the person with the disability to comply with the requirement or condition.

(emphasis in original)

20    Victimisation is defined in s 42 of the Disability Discrimination Act. That section provides as follows:

42 Victimisation

(1)    It is an offence for a person to commit an act of victimisation against another person.

Penalty: Imprisonment for 6 months.

(2)    For the purposes of subsection (1), a person is taken to commit an act of victimisation against another person if the first-mentioned person subjects, or threatens to subject, the other person to any detriment on the ground that the other person:

(a)    has made, or proposes to make, a complaint under this Act or the Australian Human Rights Commission Act 1986; or

(b)    has brought, or proposes to bring, proceedings under this Act or the Australian Human Rights Commission Act 1986 against any person; or

(c)    has given, or proposes to give, any information, or has produced, or proposes to produce, any documents to a person exercising or performing any power or function under this Act or the Australian Human Rights Commission Act 1986; or

(d)    has attended, or proposes to attend, a conference held under this Act or the Australian Human Rights Commission Act 1986; or

(e)    has appeared, or proposes to appear, as a witness in a proceeding under this Act or the Australian Human Rights Commission Act 1986; or

(f)    has reasonably asserted, or proposes to assert, any rights of the person or the rights of any other person under this Act or the Australian Human Rights Commission Act 1986; or

(g)    has made an allegation that a person has done an act that is unlawful by reason of a provision of this Part;

or on the ground that the first-mentioned person believes that the other person has done, or proposes to do, an act or thing referred to in any of paragraphs (a) to (g) (inclusive).

Section 42, it will be noted, makes it an offence punishable by imprisonment “to commit an act of victimisation”.

21    No detailed exposition is presently required as to the manner in which these provisions have been construed and applied to the facts of individual cases. It is sufficient for present purposes to note that each provision has the potential to give rise to difficult questions of both fact and law. There are “difficulties … in construing and applying” these provisions as the legislation “represents a compromise by the Parliament between the protection and advancement of the right to equality of treatment and opportunity enjoyed by people with disabilities, and the interests of other groups in the community” and does so “in statutory language which is deliberately opaque”: Mulligan v Virgin Australia Airlines [2015] FCAFC 130 at [137], (2015) 234 FCR 207 at 244 per Flick, Reeves and Griffiths JJ, citing Watts v Australian Postal Corporation [2014] FCA 370 at [12]-[14], (2014) 222 FCR 220 at 225-226 per Mortimer J.

22    Although no question is thus raised by Counsel on behalf of the Shoalhaven Heads Club as to this Court having jurisdiction to review claims of discrimination and victimisation, Counsel does seriously cavil with any suggestion that those claims have been articulated with sufficient precision as to be capable of being fully understood and resisted. Repeated opportunities, Counsel submits, have been extended to Mr Reurich to formulate his claims, and the content of those claims – it is submitted – remains unspecified and unknown. The time has come, so the submission runs, to bring the proceeding to an end.

23    It should be noted at the outset that there is much justification for the Shoalhaven Heads Club seeking an order that the Originating Application be struck out pursuant to r 16.21 of the Federal Court Rules. Rule 16.21(1) provides in part as follows:

Application to strike out pleadings

(1)    A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:

…

    (c)    is evasive or ambiguous; or

    (d)    is likely to cause prejudice, embarrassment or delay in the proceeding; or

(e)    fails to disclose a reasonable cause of action … or other case appropriate to the nature of the pleading; or

    (f)    is otherwise an abuse of the process of the Court.

24    Had Mr Reurich confined his case to a claim of direct discrimination by reason of the rejection of his application for membership, a conclusion would in all likelihood have been reached that the existing and significant deficiencies in the manner in which he has sought to formulate such a claim would not have precluded that confined claim from proceeding to hearing, with or without even further clarification. In very broad outline, such a confined claim could have been understood as a claim that:

    Mr Reurich suffered a “disability”, described in his complaint to the Commission in December 2018 as “[a]nxiety depression autism”;

    as a result of that disability he has an “assistance animal”, a dog named “Boofhead”; and

    in November 2018, his application for membership of the Shoalhaven Club was rejected.

On such a confined claim, that which was missing from the Originating Application and the Points of Claim, were allegations going to:

    the reason why the membership application was refused; and

    the facts evidencing any such reason.

It would further have been unclear whether Mr Reurich’s case was that his membership was refused because:

    he had a disability; or

because

    the club did not want Boofhead on its premises.

Notwithstanding such deficiencies, an inference was (perhaps) available that his application for membership was refused because of his disability and/or his necessity to have an assistance animal when he entered the Club’s premises. Had that been the confined case sought to be resolved, the Shoalhaven Heads Club could have put such elements of the claim as it wished in dispute, including (in particular) evidence as to the reasons why the membership application was refused. To have permitted even such a confined case to proceed to hearing without some greater degree of specificity and certainty as to each of the legal and factual elements of a direct discrimination case would, it may readily be accepted, have presented certain forensic problems for the Club. The necessity for precision in the formulation of each of the elements of even a direct discrimination case (cf. Purvis [2003] HCA 62, (2003) 217 CLR 92) could have been potentially sacrificed on the altar of pragmatism and a desire to ensure an unrepresented litigant was not precluded from having his case fairly adjudicated by a court.

25    But such a confined case was rejected by Mr Reurich during the course of his oral submissions. Without seeking to unnecessarily confine him to the manner in which he formulated his claims during those oral submissions, it was understood that Mr Reurich wished to pursue a claim in this Court and that the facts would disclose:

    direct discrimination;

    indirect discrimination; and

    victimisation.

The content of each of those broadly expressed claims was further developed by Mr Reurich during his oral submissions.

26    The case (for example) of direct discrimination – and the act of discrimination – was said to be founded upon:

    two occasions when the Shoalhaven Heads Club threatened to call the police by reason of his conduct;

    threats to pursue him for “costs” he had occasioned the Club to incur;

    the Club not extending to him the opportunity to address the Board of the Club in respect to complaints that had been made; and

    taking his associate membership from him and rejecting his application for membership without providing reasons for its decision, as reasons were not required under its constitution.

And if attention was shifted from the conduct of the Shoalhaven Heads Club which was said by Mr Reurich to constitute the discrimination and shifted to the manner in which the Club treated him “less favourably”, Mr Reurich submitted that he was treated “less favourably” not merely by reason of the rejection of his membership but the “less favourabl[e]” treatment also extended to:

    the steps the Shoalhaven Heads Club had taken in correspondence with other Clubs; and

    precluding him from forming friendships with others in his local area.

27    The case he sought to advance as to indirect discrimination was (with respect) less well developed. Indeed, and perhaps not surprisingly in the case of a unrepresented litigant, Mr Reurich drew no clear distinction between his case of direct as opposed to indirect discrimination. Nor was there any clear identification of the “requirement or condition” which s 6 requires. And, as stated by Kirby J in New South Wales v Amery [2006] HCA 14 at [128], (2006) 230 CLR 174 at 212, “it is necessary to identify with precision what the individual “requirement” or “condition” is”.

28    The case as to victimisation, it suffices for present purposes to observe, was formulated during the course of oral submissions by Mr Reurich with scant (if any) regard to the terms in which s 42 is expressed. In particular, even if any of the conduct or acts of the Shoalhaven Heads Club as was identified by him could be taken as “an act of victimisation” for the purposes of s 42(1), completely left unaddressed was any articulation on his part as to why such acts were taken “on the ground” of any of those matters specified in s 42(2). Left to one side for present purposes is whether this Court has jurisdiction, and (if so) whether it should exercise such jurisdiction in respect to a complaint that an offence of victimisation has been committed together with claims for discrimination: cf. Walker v State of Victoria [2012] FCAFC 38 at [98] to [99] per Gray J (“Walker”).

29    The manner in which Mr Reurich outlined his case during oral submissions had, with respect, all of the hallmarks of an undisciplined attempt to make “a litany of complaints, rather than a series of allegations of unlawful discrimination”. Such was the complaint made by Gray J in Walker [2012] FCAFC 38 with respect to the pleadings there set forth in a statement of claim. His Honour thus observed:

[26]    It is apparent that the appellant’s legal representatives have adopted the course of trying to include in the amended statement of claim as many allegations as they can that the respondent’s provision of education services to the appellant has been inadequate and misguided, without making any serious attempt to relate those allegations to the provisions of Pt 2 of the Disability Discrimination Act, in the light of the definitions in ss 5 and 6. References to those provisions occur only late in the amended statement of claim. The provisions are treated in the most cursory fashion. There is no attempt to plead as material facts specific acts or omissions of the respondent. As a consequence, the respondent has not been called upon to plead to such allegations, so as to make it clear what is and is not in dispute. For the most part, there is a failure to particularise matters such as dates and the identification of the particular persons responsible. Specific alleged acts or omissions are not related directly to the provisions of the Disability Discrimination Act on which the appellant relies. There are no indications of the persons, or classes of persons, who might be regarded as proper comparators for the purposes of determining whether there has been discrimination by less favourable treatment, or of determining who is able to comply with a particular requirement or condition in respect of which it is alleged that the appellant cannot comply. In short, the amended statement of claim is a litany of complaints, rather than a series of allegations of unlawful discrimination under the Disability Discrimination Act.

The plight of the unrepresented

30    The plight of unrepresented litigants, especially those who suffer some form of mental disability, cannot be underestimated.

31    Frequently in the balance is the need to ensure the proper administration of justice in a manner which is procedurally fair to both the unrepresented party and those who oppose the relief sought.

32    The manner in which that balance is to be struck has long vexed the Courts.

33    And different considerations apply when a party seeks an order that judgment be entered summarily in its favour, as opposed to an order that the pleadings are such that they should be struck out with liberty to re-plead. Common to both exercises of discretion, however, is the need to ensure that any order does justice to both an applicant and a respondent. An unrepresented applicant may not be competent to properly articulate a claim for relief and a respondent should not be put in the position of seeking to resist a claim for relief that cannot properly be understood. In Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 (“Wentworth v Rogers”) at 536-537, Kirby P (when sitting as the President of the Court of Appeal) thus observed as to the duty of the Court to an unrepresented litigant upon a strike out application:

… Persons unfamiliar with the rules of pleading and the technicalities which surround the drafting of a statement of claim in adequate and permissible legal form are inevitably, if unrepresented, at a disadvantage. Courts should approach the peremptory termination of the litigation with special care to ensure that, within the possibly ill expressed and unstructured statement of the legal claim sought to be ventilated, there is no viable cause of action which, with appropriate amendment of the pleading and a little assistance from the court, could be put into proper form. If this can be done, the court should avoid the summary termination of the proceedings for this will prevent the Court from examining any merits of the case, once the statement of claim is struck out. …

See also: Morton v Vouris (1996) 21 ACSR 497 at 513-514 per Sackville J. Conversely, however, a Court “must ... have regard not merely to the position of the litigant in person but also to the position of the other party or parties concerned and to what is required, in justice, to prevent the unnecessary expenditure of public and private resources”: Corporate Affairs Commission v Solomon (unreported, 1 November 1989, Supreme Court of New South Wales Court of Appeal, Mahoney AP). Similar views to those expressed in Wentworth v Rogers were again expressed by Kirby J (when sitting as a Justice of the High Court) in Thorpe v Commonwealth of Australia (No 3) (1997) 144 ALR 677 at 686 (“Thorpe”), albeit with the express recognition of the need to ensure that the Court is not disadvantaging another party, where his Honour observed:

Setting aside, striking out, summarily dismissing or permanently staying proceedings of a litigant who has come to a court of law, are self-evidently serious steps. They are to be reserved to a clear case. If there is any doubt, a court should err on the side of allowing the claim to proceed. Evidence at trial may sometimes lend colour and strength to a claim. Reformulation of a pleading should normally be permitted where justice requires that course, particularly where a party does not have the assistance of legal representation. A court will ordinarily provide some assistance in such a situation although not to the point of unfairly disadvantaging the other party or losing either the reality or appearance of neutrality and impartiality which is the hallmark of the judiciary under the Australian Constitution and under international human rights law.

Strike out – but an opportunity to re-plead

34    It would be a manifestly wrong exercise of discretion to summarily enter judgment in favour of the Shoalhaven Heads Club. Any application for summary judgment pursuant to either s 31A of the Federal Court Act or r 26.01 of the Federal Court Rules is refused. The facts as presently known, whatever be the deficiency as to the manner in which they have been articulated, are not such that any view could be formed that the Club does not have a case to answer – perhaps a case confined to one of direct discrimination. Such, it may be noted, was the conclusion in Reurich v Club Jervis Bay Ltd [2018] FCA 1220, (2018) 360 ALR 296. That was a case obviously dependent upon its own facts but was a case in which Mr Reurich was legally represented.

35    The Club may or may not succeed in defending Mr Reurich’s claims. But he should not be forever shut out from seeking to have a properly formulated case resolved.

36    But no hesitation is expressed in concluding that the Originating Application and Statement of Claim should be struck out pursuant to r 16.21 of the Federal Court Rules. The case as it is presently formulated cannot proceed. To permit such a course would unquestionably “cause prejudice, embarrassment or delay in the proceeding” (r 16.21(d)). Nor as the case is presently formulated could it be fairly said that the existing pleadings “disclose a reasonable cause of action” (r 16.21(e)) in (at least) indirect discrimination or victimisation.

37    No hesitation is thus experienced in concluding that the existing “pleadings” should be struck out.

38    The fundamental difficulties inherent in seeking to identify the case sought to be advanced for resolution cannot be underestimated. Given these difficulties, Counsel for the Shoalhaven Heads Club not surprisingly placed considerable reliance upon the well-accepted principle that a pleading should be sufficiently precise so as to enable an opposing party of the case to be met: Banque Commerciale SA en liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 286-287 per Mason CJ and Gaudron J. The document characterised as a Statement of Claim and filed in September 2019 certainly does not comply with r 16.02(1) of the Federal Court Rules. The Statement of Claim, for example, is not “as brief as the nature of the case permits” (r 16.02(1)(b) of the Federal Court Rules) and does not “state the material facts on which [Mr Reurich] relies that are necessary to give the opposing party fair notice of the case to be made against [the Club]” (r 16.02(1)(d)). Nor are those failures remedied by either the Points of Claim which have been filed by Mr Reurich or his Outline of Submissions.

39    But pleadings (or Points of Claim), it must also be recalled, are the “servants, not the masters of the judicial process”: Thorpe (1997) 144 ALR at 687. The touchstone is whether on the materials before the Court a party “fairly knows the case to be met”: cf. Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50 at [44] per Greenwood, Flick and Rangiah JJ. And that touchstone works both ways, namely:

    the Shoalhaven Heads Club is entitled to know with sufficient certainty the legal and factual issues it is being called upon to answer; and

    Mr Reurich is entitled to know with sufficient certainty the legal and factual bases upon which the Club is seeking to resist his claims.

40    Whatever conclusion may ultimately have been reached had Mr Reurich confined his case to one of direct discrimination, the moment that he sought to advance claims based not only upon:

    direct discrimination founded not merely upon the refusal of his membership but upon further alleged facts,

but also claims as to:

    indirect discrimination; and

    victimisation,

a conclusion became inevitable that any hearing could not proceed upon the basis of the existing pleadings. Even a case founded on direct discrimination would have to fit within the constraints imposed by s 46PO(1) of the Human Rights Commission Act.

41    That conclusion, with respect, became inevitable because the content of any of those claims could not readily be discerned from any reading of either the pleadings or such evidence as was presently available. Even a hearing confined to a case of direct discrimination by reason of the refusal of membership may not have progressed smoothly. Unexpected legal or factual issues would in all likelihood have emerged. Such difficulties in seeking to resolve a confined case could possibly have been met by a short adjournment and possibly an adverse order as to the payment of such limited costs as may have been incurred. But no hearing upon the more expansive claims advanced by Mr Reurich could be expected to progress if the pleadings did not adequately identify the issues to be resolved and if those issues were not readily discernible from a fair and balanced reading of the evidence. The prospect of adjournments and significant disruption to both the Court and the parties could not be discounted and would (with respect) have been almost inevitable. And Mr Reurich frankly conceded in submissions that he was not in a position to meet any costs order that may have been made in an attempt to ensure that the Club was not prejudiced, even if it should ultimately lose the proceeding.

42    The difficulties and subtleties inherent in making out a case of direct or indirect discrimination and victimisation can also not be underestimated. The manner in which Mr Reurich outlined in his oral submissions the claims he sought to agitate in this Court were not, with respect, self-evident from anything that he had previously filed.

43    In such circumstances, it became inevitable that the existing pleadings should be struck out.

44    But the making of such an order should not preclude a further Statement of Claim being filed. Any such Statement of Claim, however, should be certified by a lawyer in accordance with r 16.01(c) of the Federal Court Rules. It does not reflect ill upon Mr Reurich to conclude that a proper formulation of his case has proved to be beyond his ability. If the case is to proceed, it should only be one drafted by a lawyer who can certify that there is a proper basis for the legal and factual allegations to be made. In the absence of such a Statement of Claim being filed, the Shoalhaven Heads Club may then apply to have the proceeding dismissed.

45    In advance of such a Statement of Claim being filed, no order should be made – either by way of subpoena or otherwise – for the production of documents.

CONCLUSIONS

46    On one view of the facts, a case is possibly open that the Shoalhaven Heads Club may have discriminated against Mr Reurich. No order should thus be made that judgment should now be entered in its favour.

47    But an order should be made that the Originating Application and Statement of Claim be struck out. Given the expansive nature of the claims which Mr Reurich seeks this Court to resolve, such an order is inevitable. The more expansive claims sought to be resolved are not readily discernible from either the existing pleadings or from such evidence as is presently available. The progress of the litigation in Walker [2012] FCAFC 38 serves only too well to demonstrate the difficulties experienced by both a judge at first instance and those on appeal when a case is not properly articulated from the outset.

48    Liberty should, however, be granted to Mr Reurich to file a further Statement of Claim certified by a lawyer in accordance with the Federal Court Rules.

49    There is no reason why Mr Reurich should not be ordered to pay the costs of the Shoalhaven Heads Club in respect to the present hearing of its Interlocutory Application.

THE ORDERS OF THE COURT ARE:

1.    The Originating Application and Statement of Claim be struck out pursuant to r 16.21 of the Federal Court Rules 2011 (Cth).

2.    The Applicant have liberty to file and serve a Further Statement of Claim certified by a lawyer in accordance with r 16.01(c) of the Federal Court Rules 2011 (Cth) by 2 June 2020.

3.    The Applicant is to pay the costs of the Respondent in respect to the hearing of its Interlocutory Application filed on 4 October 2019.

4.    The proceeding is stood over for further mention on 6 July 2020 at 9:30am.

Associate:    

Dated:    2 April 2020