FEDERAL COURT OF AUSTRALIA

Pateras v State of Victoria [2022] FCA 238

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 54A(3) of the Federal Court of Australia Act 1976 (Cth), the Report of Registrar Legge, dated 1 November 2021, be adopted in its entirety.

2.    The applicant’s interlocutory application for leave to bring proceedings pursuant to s 46PO(3A)(a) of the Australian Human Rights Commission Act 1986 (Cth) be dismissed.

3.    The Applicant pay the first respondent’s costs of and incidental to the applicant's application for leave pursuant to s 46PO(3A)(a) of the Australian Human Rights Commission Act 1986 (Cth), and the second respondent's interlocutory application filed on 9 September 2021, assessed on the standard basis.

4.    Pursuant to section 31A of the Federal Court of Australia Act 1976 (Cth) and rule 26.01 of the Federal Court Rules 2011 (Cth), the proceeding be dismissed as against the second respondent.

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

REASONS FOR JUDGMENT

ANDERSON J:

1    On 21 September 2021, I ordered that: Pursuant to s 54A of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and Division 28.6 of the Federal Court Rules 2011 (Cth) (Rules), a Registrar of the Court be appointed as referee to conduct a hearing and prepare a report for the Court on the questions of whether the Court should grant:

(a)    the applicant’s application for leave pursuant to s 46PO(3A)(a) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act); and

(b)    the relief sought by the second respondent in its application filed on 9 September 2021, namely, that pursuant to s 31A of the FCA Act and r 26.01 of the Rules that the proceeding be dismissed as against the second respondent, or alternatively, pursuant to rr 9.08 and/or 1.32 of the Rules, the second respondent be removed as a party from the proceeding.

2    On 1 November 2021, Registrar Legge (Referee) produced her referee report (Report). In summary, the Referee made the following recommendations:

(a)    Section 46PO(1) of the AHRC Act provides no statutory basis for the applicant to bring the application against the second respondent. That provision enables an affected person to make an application to this Court alleging unlawful discrimination by one or more respondents to the complaint that was terminated by the President of the AHRC. The second respondent was not a respondent to the terminated complaint.

(b)    The applicant has previously made a complaint and initiated proceedings under the laws of Victoria in respect of the same grounds on which she alleged unlawful discrimination in her complaint to the AHRC. In those circumstances, s 13(4) of the Disability and Discrimination Act 1992 (Cth) (DD Act) disentitles the applicant from making a complaint under the AHRC Act in respect of those grounds.

(c)    Section 46PO(3) of the AHRC Act requires that the unlawful discrimination alleged in the application must be at least substantially the same, or arise out of substantially the same acts, omissions and practices, as the terminated complaint. The unlawful discrimination alleged in the statement of claim is not substantially the same as the discrimination alleged in the terminated complaint nor does it arise out of substantially the same acts, omissions and practices.

(d)    The applicant’s complaint has no reasonable prospect of success even if the facts she alleges are proven.

(e)    In addition to the poor viability of the applicant’s claim, the other considerations to which the Court will have regard in exercising its discretion under s 46PO(3A)(a) of the AHRC Act strongly militate against the grant of leave.

(f)    Alternatively, the second respondent is entitled to judgment against the applicant pursuant to s 31A of the FCA Act and r 26.01 of the Rules or, alternatively, to an order pursuant to r 9.08 of the Rules that it cease to be a party to the proceeding.

(g)    In circumstances where the applicant has been wholly unsuccessful in her application and, or alternatively, in her opposition to the interlocutory application, the applicant should pay the respondents’ costs of and incidental to the proceeding.

3    The issue before the Court is whether the findings of the Report should be adopted, varied or rejected.

4    For the reasons set out below, the Report will be adopted in its entirety.

SUBMISSIONS

Applicant’s submissions

5    The applicant appeared in person, and other than a few observations that she made with respect to difficulties that she experienced in presenting her case to the Referee, she relied upon her submissions.

6    The applicant submits that the Report should be varied in order to grant the applicant leave pursuant to s 46PO(3A)(a) of the AHRC Act.

7    The applicant submits that:

(a)    the findings in the Report should be rejected because of a lack of evidence including that the Report did not deal with a number of issues relating to prior claims raised by the applicant, in various forums from 2008-2020;

(b)    she is a layperson with no legal qualification, experienced difficulty in directing Registrar Legge to documents that, the applicant submits, she should have had regard to, and experienced difficulty in this forum due to her anxiety;

(c)    no prejudice will be caused to the respondents by the delay; and

(d)    any inconsistencies identified in the originating application and the statement of claim should not be accepted by the Court as a reason to refuse leave.

First Respondent’s submissions

8    The first respondent (Department) submits that the Court should adopt the Report and recommends that the Court:

(1)    refuse the applicant leave pursuant to s 46PO(3A)(3) of the AHRC Act;

(2)    order the applicant to pay the respondents’ costs of, and incidental to, the proceeding; and

(3)    otherwise dismiss the proceeding.

9    The Department submits that the AHRC Act does not specify any criteria in relation to the power to give leave under s 46PO(3A)(a). However, the Department submits that a range of factors relevant to the proper exercise of discretion were identified in James v WorkPower Inc [2018] FCA 2083 (WorkPower), where her Honour, Mortimer J, found that other factors include:

(1)    the circumstances of the parties: how important the subject matter of the complaint is to both the applicant and any respondent, and to their respective circumstances;

(2)    the nature of the allegations made (including whether, for example, they involve allegations of continuing discrimination, or how serious the discrimination is alleged to be);

(3)    how thoroughly the Australian Human Rights Commission (AHRC) has dealt with the merits of the complaint. For example, it may be that the AHRC’s termination reasons thoroughly answer the alleged merits of a complaint and make it clear the complaint is not reasonably arguable;

(4)    whether an applicant has delayed in complaining about the alleged discrimination and, if so, whether there are any explanations for that delay;

(5)    whether a respondent has attempted to address the allegations in any way outside the AHRC process and whether the allegations have been addressed or resolved in any way;

(6)    the factual and legal complexity of the matters raised by the allegation of unlawful discrimination;

(7)    whether the allegations raise issues of public importance, or of general application. The express power given to the President in s 46PH(1)(h) of the AHRC Act does not exhaust the circumstances in which this factor might be considered; and

(8)    other factors that are often considered in leave applications – such as prejudice to a party.

10    The Department submits that the Referee considered the evidence and arguments filed by each of the parties, as well as the parties’ oral submissions against the factors outlined by Mortimer J in WorkPower, and ultimately recommended that the Court:

(a)    refuse the applicant’s application for leave pursuant to s 46PO(3A)(a) of the AHRC Act; and

(b)    order the a pplicant to pay the respondents’ costs of, and incidental to, the application.

11    The Department submits that the Referee gave reasons for these recommendations in the Report, and in summary, the Referee found:

(a)    that certain claims raised by applicant in the proceeding raised matters that had already been dealt with under the laws of Victoria. In those circumstances, s 13(4) of the Disability Discrimination Act 1992 (Cth) disentitles the applicant from making a complaint under the AHRC Act in respect of those grounds;

(b)    the applicant’s proposed claims in the proceeding were not, at least substantially the same, or arise out of substantially the same acts, omissions and practices as were raised in the complaint terminated by the AHRC, contrary to s 46PO(3) of the AHRC Act;

(c)    the applicant’s claims in the proceeding did not have reasonable prospects of success, even if the facts she alleged were proven; and

(d)    the factors relevant to the proper exercise of discretion under s 46PO(3A)(a) of the AHRC Act strongly militated against the grant of leave.

12    The Department submits the Referee’s Report should be adopted because the Referee’s Report reveals no error of principle, no absence or excess of jurisdiction or patent misapprehension of the evidence. To the contrary, the Department submits that the Report is carefully reasoned and reflects the justice of the case. The Department submits that the findings of the Report are supported by the factual material that was before the Referee. Indeed, the Report demonstrates that the Referee:

(a)    applied a correct understanding of the scope and nature of the task referred;

(b)    adopted a process that was procedurally fair to the parties insofar as:

(i)    the Referee gave the parties the opportunity to file evidence and argument in the Referral;

(ii)    the Referee gave the parties the opportunity to be heard at an oral hearing;

(iii)    the Referee accepted material filed by the applicant after the hearing; and

(iv)    the Referee considered the applicant’s claims as a matter of substance and with a correct understanding of her obligations to the applicant as a self-represented party;

(c)    considered the facts of the proceeding and made findings amply supported by the material; and

(d)    identified and applied the correct legislative framework and legal principles.

13    The Department submits that, on balance, the evidence and argument has been understood and considered as a matter of substance and on merit. The Department submits that the Report accords with the law and is a just and appropriate outcome in all the circumstances of this case.

Second Respondent’ submissions

14    In the second respondent’s submission, the Court should adopt the Referee’s Report in its entirety and otherwise make orders that the second respondent be removed as a party to this proceeding.

15    The second respondent submits that the principles to be applied by the Court when determining whether to adopt, vary or reject a referee’s report pursuant to s 54A(3) of the Act or r 28.67 of the Rules, are well established in Sheehan v Lloyds Names Munich Re Syndicate Ltd [2017] FCA 1340 by Allsop CJ at [10], and can be summarised as follows:

(1)    The court should be reluctant to allow factual issues determined by a referee to be argued afresh in court.

(2)    Some error of principle, absence or excess of jurisdiction or patent misapprehension of the evidence should generally be demonstrated to justify the rejection of the referee’s report.

(3)    The court will generally not reconsider disputed questions of fact where there exists factual material that is sufficient to entitle the referee to reach the conclusions that they did, particularly where the disputed conclusions are made in a technical area in which the referee possesses appropriate expertise.

(4)    The discretion to reconsider a referee’s factual findings will generally only be exercised if the findings are such that no reasonable finder of fact could have made that finding.

(5)    The determination of questions of law and the application of legal principles to the facts found by the referee is a matter for the court.

16    The second respondent submits that the Referee’s report:

(a)    correctly understood the scope of the inquiry and the nature of her task;

(b)    accorded procedural fairness by giving all parties the opportunity to supply whatever affidavit material or written submissions upon which they intended to rely and to attend a hearing to make oral submissions;

(c)    paid careful and close regard to the material before her and comprehensively set out the relevant factual background; and

(d)    set out and applied the correct legal tests in arriving at her findings, both in relation to the application for leave and the second respondent’s interlocutory application.

17    In circumstances where it is clear that the Referee applied a thorough and analytical approach to answering the referred questions, and that she applied the correct principles to arrive at findings that were logically justified on the material before her, the second respondent submits that the Court should adopt the Report in whole.

18    In this regard, the second respondent submits that it would frustrate the purpose of the referral to allow the re-agitation of the Referee’s findings in circumstances where those findings were open on the material before her. The second respondent submits that the Court is entitled to consider the futility and cost of re-litigating an issue determined by the Referee where the parties have had ample opportunity to be heard: Chocolate Factory Apartments v Westpoint Finance Pty Ltd [2005] NSWSC 784 at [7] (Chocolate Factory), referred to in Gulf Conveyor Systems Pty Limited v Gulf Integrated Solutions Pty Limited [2020] FCA 1534 at [10].

PRINCIPLES

19    The power to appoint a referee and to deal with a referee’s report is conferred by s 54A of the FCA Act. Section 54A provides:

Referral of questions to a referee

(1)     Subject to the Rules of Court, the Court may by order refer:

(a)     a proceeding in the Court; or

(b)     one or more questions arising in a proceeding in the Court;

to a referee for inquiry and report in accordance with the Rules of Court.

(2)     A referral under subsection (1) may be made at any stage of a proceeding.

(3)     If a report of a referee under subsection (1) is provided to the Court, the Court may deal with the report as it thinks fit, including by doing the following:

(a)     adopting the report in whole or in part;

(b)     varying the report;

(c)     rejecting the report;

(d)     making such orders as the Court thinks fit in respect of any proceeding or question referred to the referee.

20    Division 28.6 of the Rules establishes rules for the conduct of a referral.

21    After the referee has provided the Court with a written report, r 28.67 comes into play. It provides:

28.67 Proceeding on report

(1)     After a report has been given to the Court, a party may, on application, ask the Court to do any of the following:

(a)     adopt, vary or reject the report, in the whole or in part;

(b)     require an explanation by way of a further report by the referee;

(c)     remit on any ground, for further consideration by the referee, the whole or any part of the matter that was referred to the referee for inquiry and report;

(d)     decide any matter on the evidence taken before the referee, with or without additional evidence;

(e)     give judgment or make an order in relation to the proceeding or question.

(2)        A party must not adduce in the Court evidence given in an inquiry.

22    The exercise of the Court’s discretion is governed by principles drawn from the object and purpose of the relevant rules. Those principles are well-established. They were summarised by McDougall J in Seven Sydney Pty Ltd v Fuji Xerox Australia Pty Ltd [2004] NSWSC 902 at [12] and Chocolate Factory at [7]. Although these principles were formulated in the context of Pt 72 r 13 of the Supreme Court Rules 1970 (NSW), that rule is not materially different from r 28.67 of the Rules and the same principles have been cited with approval in numerous judgments of this Court: see, for example, Shannon (in his capacity as receiver and manager of North East Wiradjuri Co Limited) v North East Wiradjuri Co Limited (No 3) [2012] FCA 106 at [3]–[9] (Jacobson J); Sheehan v Lloyds Names Munich Re Syndicate Ltd [2017] FCA 1340; 19 ANZ Ins Cas 62-158 at [10] (Allsop CJ); Ozmen Entertainment Pty Ltd v Neptune Hospitality Pty Ltd [2018] FCA 647 at [6]–[7] (Burley J).

23    The relevant principles have been outlined by Katzmann J in Gulf Conveyor Systems Pty Ltd v Gulf Integrated Systems Solutions Pty Ltd [2020] FCA 1245 at [13]-[21] as follows:

(1)    An application made under the relevant rule is not an appeal. The Court does not conduct a hearing de novo or a rehearing. A party who is dissatisfied with a referee’s report is not entitled to require the Court to reconsider and re-determine afresh matters, whether of fact or law, which the party wants to contest, see: Super Pty Ltd v SJP Formwork (Aust) Pty Ltd (1992) 29 NSWLR 549 at 562–563, per Gleeson CJ (Super Pty Ltd).

(2)    The discretion to adopt, vary or reject a referee’s report is to be exercised in a manner consistent with the context and purpose of the relevant rules. The purpose of the Rules is to provide, where the interests of justice so require, “a form of partial resolution of disputes alternative to orthodox litigation, and it would frustrate that purpose to allow the reference to be treated as some kind of warm-up for the real contest”: Super Pty Ltd at 563.

(3)    If the source of a party’s dissatisfaction with a report is a question of law, or the application of legal standards to established facts, a proper exercise of discretion requires the judge to consider and determine that matter afresh.

(4)    If the referee’s report reveals some error of principle, absence or excessive jurisdiction, patent misapprehension of the evidence or perversity or manifest unreasonableness in fact finding, that would ordinarily be a reason for rejection: Chocolate Factory at [7]. In this context, “patent misapprehension of the evidence” means a lack of understanding of the evidence and not the weight attributed to it; and “perversity or manifest unreasonableness” means a conclusion that no reasonable tribunal of fact could have reached: Chocolate Factory at [7].

(5)    But in general, the referee’s findings of fact should not be re-agitated before the Court. The Court will not reconsider disputed questions of fact where there is factual material sufficient to entitle the referee to reach the conclusions he or she did, particularly where the disputed questions are in a technical area in which the referee has expertise. It is not enough for an aggrieved party to point to errors of fact which would be amenable to correction by an appellate court.

(6)    Even if it were to be shown that the Court might have come to a different conclusion in some respect from that reached by the referee, absent any error of the kind referred to above, it would not be a proper exercise of the discretion conferred by r 28.67 of the Rules, to allow matters agitated before the referee to be re-explored so as to lead to qualification or rejection of the report.

(7)    The Court is entitled to consider the futility and cost of re-litigating an issue determined by the referee where the parties have had ample opportunity to place before the referee the evidence and submissions upon which they wish to rely.

(8)    Although the reasons given by the referee may appear to be adequate, where the party challenging the report contends that they are not because the referee did not deal with “very significant evidence”, the Court may examine the evidence to see whether the reasons were in fact inadequate because they omitted to refer to such evidence: Chocolate Factory at [7].

(9)    If the Court decides that the reasons are flawed, either on their face or because they have been shown not to deal with important matters, the Court may decline to adopt the report or examine the evidence to see whether the expense of a further proceeding before the referee is justified.

CONSIDERATION

24    I have considered the Referee’s Report dated 1 November 2021 and I find that there are no errors of principle or jurisdiction. The Report is well-reasoned and well-structured and is a correct application of the principles.

25    The Referee correctly understood the scope of the inquiry and the nature of the task and accorded procedural fairness to all parties, paid careful and close regard to the material before her, comprehensively set out the relevant factual background and set out and applied the correct legal tests in arriving at her findings, both in relation to the application for leave and the second respondent’s interlocutory application.

26    I am not satisfied that a proper basis has been established for rejecting or varying the Referee’s Report.  The applicant did not complain about the application of legal standards to established facts. The Report reveals no error of principle or want or excess of jurisdiction: Chocolate Factory at [7]. Nor does it disclose any perverse or unreasonable finding of fact: Chocolate Factory at [7]. On the material before her, the Referee was entitled to come to the conclusions she reached.

27    I do not consider that there is an error of principle or manifest unreasonableness such as would cause me to reject the Report. It is plain that in preparing the very thorough and comprehensive Report, the Referee did turn her mind to whether or not particular claims should be allowed, disallowed or reduced by reference to her overall assessment of the matter based on the materials provided, including any submissions.

28    Orders will therefore be made that the Report be wholly adopted and that the applicant pay the costs of this proceeding.

Associate:

Dated:    17 March 2022