Federal Court of Australia

Muradian v Jones Lang Lasalle (Qld) Pty Limited [2023] FCA 165

ORDERS

THE COURT ORDERS THAT:

The interlocutory application

1.    The interlocutory application filed 20 December 2022 (interlocutory application) be dismissed.

Costs of the Interlocutory application

2.    The costs of interlocutory application, in respect of the respondent to proceeding QUD404/2022, be that respondent’s costs in any event.

3.    The costs of the interlocutory application, in respect of each of the interested parties which appeared and made submissions today, as set out in schedule A to these orders (interested party), be that interested party’s costs in the interested parties’ respective proceedings in any event.

Other Matters

4.    The appearance of any interested party today be without prejudice to such right as that interested party may have to oppose the grant of leave and any associated extension of time under the Australian Human Rights Commission Act 1986 (Cth).

5.    Order 4 to take effect nunc pro tunc from 20 December 2022.

6.    The third respondent to proceeding WAD169/2022 and the respondent to QUD415/2022 file and serve and serve an amended outline of argument forthwith.

7.    A copy of this order be placed on the file of each proceeding listed in the table in Schedule A to these orders.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    It is a matter for judicial notice that, on and from at least March 2020, Australia, in succession or in conjunction with virtually everywhere else on earth, encountered the pernicious phenomenon of a pandemic arising from an infectious virus which has come to be termed COVID-19. Also a matter for judicial notice, as far as Australia is concerned, is that over the ensuing two and a half years or so, a succession of disparate public health measures was adopted by Commonwealth, State and Territory governments, and in turn, disparate policies adopted by government and private employers, owners of premises and operators of businesses, all to the end of addressing related public health risks.

2    One sequel to all of the foregoing has been the institution of a number of proceedings in the Court alleging that in the experience of particular applicants there occurred disability discrimination, contrary to the Disability Discrimination Act 1992 (Cth), and in particular, s 23 and s 24 thereof. A particular firm of solicitors, JKR Lawyers, has come to act for many of those disparate applicants in respect of the applicants for whom JKR acts.

3    An application has been made by the applicant in QUD404/2022, Ms Elda Muradian for the following orders:

1.    That, pursuant to Rule 30.11 of the Federal Court Rules, these proceedings be consolidated with Federal Court proceedings number QUD403/2022, being Elda Muradian v SPB (2000) Pty Ltd trading as Stamford Plaza Brisbane.

2.    That this Honourable Court make determinations in relation to the following preliminary questions of law:

a.    Whether a policy by any business or organisation that absolutely prevented a person not wearing a face covering from entering the business’s premises and/or accessing the business’s facilities or services in the same way as other customers was indirectly discriminatory against a recognisable group of people, being those who suffered from medical conditions that prevented them from safely wearing a face covering:

i.    In breach of ss. 23 or 24 of the Disability Discrimination Act (Cth); and

ii.    Where there was no reasonable justification for such discrimination under the Disability Discrimination Act;

b.    Whether a policy by any business or organisation that prohibited a person not wearing a face covering from entering the business’s premises and/or accessing the business’s facilities or services in the same way as other customers, unless they produced evidence of the medical condition that made it unsuitable for them to wear a face covering, was indirectly discriminatory against a recognizable group of people, being those who suffered from such medical conditions:

i.    In breach of ss. 23 or 24 of the Disability Discrimination Act (Cth); and

ii.    Where there was no reasonable justification for such discrimination under the Disability Discrimination Act;

c.    Whether action taken by any business (or its employees, servants or agents) to prevent or impede a customer’s entry to premises and/or access to the business’s facilities or services after the customer revealed to the business (through its employee, servant or agent) that they suffered from a medical condition that made it unsuitable to wear a face covering was directly discriminatory against that customer:

i.    In breach of ss.23 or 24 of the Disability Discrimination Act; and

ii.    Where there was no reasonable justification for such discrimination under the Disability Discrimination Act.

3.    That these proceedings be further consolidated with the following proceedings for the determination of the preliminary questions specified in paragraph 2(a) and 2(c) above:

4.    That these proceedings be further consolidated with the following proceedings for the determination of the preliminary questions specified in paragraph 2(b) and 2(c) above:

5    Costs

4    Having regard to the relief sought in that interlocutory application, I directed on 20 December 2022 that Ms Muradian serve the interlocutory application and supporting affidavit not only on the respondent to that proceeding, Jones Lang LaSalle (QLD) Pty Limited (Jones Lang LaSalle), but also on the respondents listed in [1], [3] and [4] of that interlocutory application. The latter class of respondents I termed “the interested parties”. In the result, not only Ms Muradian and Jones Lang LaSalle, but also a large number of the interested parties, have appeared today and made submissions. Both Jones Lang LaSalle, as well as the interested parties, have opposed the granting of the interlocutory relief sought. The oral submissions made confirmed an impression formed by reference to the written outlines filed on behalf of Jones Lang LaSalle and the interested parties, which was that there are common themes to that opposition.

5    Before dealing with the merits of the interlocutory application in law, it is convenient to offer a brief summary of the class of proceedings. At the broadest level of abstraction, each concerns alleged discrimination, arising from a requirement to wear a mask whilst on or seeking to enter particular premises. The respondent in QUD349/2022, one of the interested parties, has offered by way of supplementation of its submission a convenient, analytical tabulation which summarises not only the particular factual context in which an allegation of discrimination in a particular proceeding arises, but also seeks to subdivide the general class of proceedings into broad categories. Another feature of the class of proceedings is that not all of those proceedings has invoked as of right this Court’s jurisdiction. By that, I mean that in respect of a number of the proceedings a grant of leave, and in some cases also a related extension of time under s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (Australian Human Rights Commission Act), is required.

6    With that in mind, and so as not to prejudice the position of particular respondents to proceedings where such a grant of leave or extension of time or both is required, and with respect properly without objection by or on behalf of Ms Muradian, I directed that any appearance by any interested party in any such case be without prejudice to the right of that party to object to a grant of leave or extension of time, and that that direction operate nunc pro tunc on and from 20 December 2022.

7    In all there are some 35 cases. Dividing them by category, four of the cases arise from the health sector. Of these, one concerns alleged events in a hospital, the others concern events at medical clinics, either those of general practitioners, or in one instance, a radiology practice. Of these, three of the applications have been filed out of time, another which is presently the subject of a subsisting order for mediation.

8    Another category of case arises from what one might term the hospitality industry. Some concern hotel premises, others restaurants. Of these 14 cases, seven require an extension of time, four have been filed within time, and three filed within time have progressed to the point where defences have been filed.

9    Another category of case concerns the retail sector, and of these, five applications have been filed out of time, five within time, and one also filed within time has progressed to the point where, on the pleadings, a reply has been filed. There is no uniformity in relation to the type of retail premises. Some of the cases concern: a large hardware store; others, a retail liquor outlet; others, a smaller timber and hardware store; others, a small retail shop dealing with mobile phone retailing; yet another concerns a retail technology goods store; yet another category concerns recreational premises. By that I mean, in one case, a gym, in another, a swimming school. These two applications have been filed within time.

10    A further category of case arises from the aviation sector. These entail alleged discrimination in respect of the experience of passengers on flights. The two applications in this regard have each been filed out of time.

11    Yet another category of case, and for that matter, a catchall, concerns the alleged experience of a customer at a government service centre, be it at State level, “Services Tasmania”, or an agency dealing with disability employment. One of these applications has been filed out of time, the other in time.

12    Of these cases, no one judge has each on his or her docket. They are disparately allocated to Collier J, Thomas J, me, Sarah C. Derrington J, Meagher J, Feutrill J and Rangiah J. Further, the premises concerned are disparately located throughout Australia. Yet further, and as was apparent from the appearances, the representation is, to say the least, disparate. Those who act for Jones Lang LaSalle do not act for all the interested parties, or even any. There is separate representation for the interested parties or groups of the interested parties.

13    Against this background, one might, with respect, have considered that there was pause for thought about the prospect of gaining an order for consolidation, or even that proceedings be heard together.

14    That is not, however, to diminish what I discern to be an underlying sentiment in the interlocutory application. Mr Grealy, who acts not only on behalf of Ms Muradian, but also on behalf of the applicants in the other proceedings, confirmed that not only Ms Muradian but also these other applicants wished to have one or the other of the orders sought in the interlocutory application to the end of trying to achieve a just and expeditious resolution of what were said to be common issues at least of law.

15    For reasons which I shall now detail, whilst, with respect, I consider the particular interlocutory orders sought not to be appropriate, that is not to say that I am insensitive to a need to find a way in which not only Ms Muradian or other applicants, but also each respondent, can at least determine prospects of success by reference to outcomes on particular facts. In other words, I can see particular attraction in at least trying to identify a sample number of test cases to progress with as much expedition as reasonably possible to finality.

16    Where a grant of leave under s 46PO of the Australian Human Rights Commission Act is required, the jurisdiction of the court to entertain the proceeding substantively is only invoked upon the grant of that leave. That is not to say that, in the context of determining whether to grant leave, prospects of success are irrelevant. It is always a relevant consideration to take into account whether a proceeding would enjoy a sufficient prospect of success to warrant a grant of leave. Even so, it is distinctly odd, quite apart from other considerations, to consolidate or hear together a proceeding at the stage of requiring a grant of leave before substantive jurisdiction can be exercised with proceedings in respect of which the jurisdiction of the court has been invoked as a right.

17    On its face, the interlocutory application mentions r 30.11 of the Federal Court Rules 2011 (Cth) with respect to consolidation of QUD 404 of 2022 with another proceeding brought by Ms Muradian, QUD 403 of 2022, where the respondent is Spb (2000) Pty Limited, trading as Stamford Plaza Brisbane. No particular rule is cited in respect of the relief sought in paras 2, 3 or 4.

18    Some precision as to the power to make the orders sought is, however, offered in Ms Muradian’s outline of submissions. There called in aid is s 23 of the Federal Court of Australia Act (Cth) (Federal Court of Australia Act), and in particular the power to make orders of such kinds, including interlocutory orders, and to issue the issue of writs of such kinds as the court thinks appropriate. Section 23, it must be accepted, confers broad powers on the court to do justice by order in the circumstances of particular cases in which the court's jurisdiction has been invoked. Absent an invocation of jurisdiction, materially a grant of leave under s 46PO, where required, one might question whether s 23 could ever be a source of power other than in the particular context of dealing with the leave application.

19    Also called in aid are the following rules:

Rule 1.31 – Orders to have regard to nature and complexity of proceeding

(1)    The Court may in making any order in the proceeding have regard to the nature and complexity of the proceeding.

Rule 1.32 – Court may make any order it considers appropriate in the interests of justice

The Court may make any order that the Court considers appropriate in the interests of justice.

Note:    See sections 23 and 28 of the Act.

Rule 9.05 – Joinder of parties by Court order

(1)    A party may apply to the Court for an order that a person be joined as a party to the proceeding if the person:

(a)    ought to have been joined as a party to the proceeding; or

(b)    is a person:

(i)    whose cooperation might be required to enforce a judgment; or

(ii)    whose joinder is necessary to ensure that each issue in dispute in the proceeding is able to be heard and finally determined; or

(iii)    who should be joined as a party in order to enable determination of a related dispute and, as a result, avoid multiplicity of proceedings.

(2)    A person must not be added as an applicant without the person's consent.

(3)    If a person is joined as a party under this rule, the start date of the proceeding for the person is the date on which the order is made.

(4)    An application under subrule (1) need not be served on any person who was not served with a copy of the originating application.

Note:    The Court may make an order for any of the following:

(a)    service of the order and any other document in the proceeding;

(b)    amendment of a document in the proceeding;

(c)    the filing of a notice of address for service by a party.

20    Overarchingly, it is also submitted that it is relevant to consider in this type of case, which concerns an alleged violation of human rights legislation, that there may be a need to adopt a different approach to that concerning other causes of action. Whilst the invocation, where it has occurred, of a human rights jurisdiction certainly bespeaks recognition of a need for an expeditious disposition, it does not involve what one might term palm tree justice.

21    As to consolidation, the judgment of Herring CJ in Cameron v McBain [1948] VLR 245 (Cameron v McBain) is something of a root authority and valuable for his Honour's account of the history of that practice. The circumstances of Cameron v McBain and the outcome are instructive. In that case, Mrs Cameron, her husband and another, Mrs B, were passengers in a car driven by one S, which collided with a truck, driven by McBain, a servant of another. In the result, Mrs Cameron and Mrs B were injured, and Mr Cameron was killed. Mrs Cameron brought an action for damages against McBain, B and another. She also, as executrix of the will of her husband's estate, brought a second action against the same defendants for damages in respect of his death. Mrs B also brought an action in which she claimed damages for her injuries against those same defendants. Application was made by one defendant to consolidate the actions. Thus, in terms of liability, at least, there was common cause factually. The same could not be said in relation to issues of damages, for reasons which are obvious enough from the facts just related. Each would necessarily depend on particular circumstances of particular plaintiffs.

22    Having surveyed the history of consolidation up to and including the conferral under the then prevailing rules of the Victorian Supreme Court of a power to order consolidation, the Chief Justice considered whether such an order was apt. His Honour noted that the issue of liability in the three actions mentioned depended upon a common set of facts. There was no question of contributory negligence alleged against any plaintiff. His Honour accepted that there was no other matter which would serve to differentiate the actions one from the other, as far as the issue of liability was concerned. The same solicitor acted, as did counsel, for each of the plaintiffs. His Honour accepted in those circumstances that considerations of convenience favoured the exercise of a discretion to order consolidation.

23    The plaintiffs in that case raised that there were disparate issues going to damages. His Honour noted, as I do, that there are particular distinctions between consolidating actions and hearing actions together. He did not consider the case was one apt for consolidation. Rather, his Honour’s view was that what was proper was to make an order singling out one of the actions for final determination, whilst staying the others until that action had been heard and determined. That, his Honour held, was the only order he thought he could make in the circumstances.

24    In this particular set of cases, even as between QUD 403 and 404 of 2022, there is no common event which occasioned alleged disability discrimination to Ms Muradian; rather, the events are disparate, reflected in disparate respondents. So the case is one removed from that singular commonality of occurrence which formed the background to Cameron v McBain.

25    A more limited form of consolidation is sought in respect of cases concerning the interested parties. That is to the end of bringing particular questions forward for resolution on matters of law. Were I to look to s 23 of the Federal Court of Australia Act, I doubt that it would be to any different end in resolving that question of whether to order even limited consolidation to that which would arise under r 30.01. As to that, in Han Jing Pty Ltd v Nestle Australia Limited [2021] FCA 143, at [18] to [20], Thawley J offered the following helpful summary of relevant considerations:

18    Rule 30.01 must be applied in a way that best promotes the overarching purpose of civil practice and procedure, which includes facilitating the just resolution of disputes as quickly, inexpensively and efficiently as possible: s 37M of the Federal Court of Australia Act 1976 (Cth).

19    Nestle must demonstrate that it is just and convenient for the order under rule 30.01 to be made: EnergyAustralia v Australian Energy Limited [2001] FCA 1049 at [5]-[8]; Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 240 FCR 276 at [8]-[9]. The starting point is that all issues of law and fact should be determined simultaneously: Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 at 141-142. “The attractions of trials of issues rather than of cases in their totality, are often more chimerical than real”: Tepko Pty Limited v Water Board (2001) 206 CLR 1 at [168]. Where determining a particular question may “determine the outcome of an application and save the parties the expense of a trial upon all the issues, the advantages of the use of the power [to order a separate question be determined] are plain”: TVW Enterprises Ltd v Duffy (No 3) (1985) 8 FCR 93 at 95; Todd Hadley Pty Limited v Lake Maintenance (NSW) Pty Limited [2019] NSWCA 262 at [15], [46] and [105]. If the separate determination of the question may save time and cost by “substantially narrowing the issues for trial, or … contribute to the settlement of the litigation”, this will tend in favour of granting the order: Reading at [8]. If a separate question would prolong the litigation or “result in significant overlap between the evidence adduced on the hearing of the separate question and at trial”, this will tend against making the order: Reading at [8].

20    As Bell P observed in Todd Hadley Pty Limited v Lake Maintenance (NSW) Pty Limited [2019] NSWCA 262 at [15], “[t]he length of time which a separate question with the capacity to resolve the entirety of the dispute may take, relative to the likely length of a full hearing, is a very important consideration in the exercise of a discretion whether or not to order the decision of a separate question”.

26    Also persuasive are observations made by Kirby and Callinan JJ in Tepko Pty Ltd v The Water Board (2001) 206 CLR 1, at [168]. Those observations were made in a dissenting judgment, but the observations were not part of the reasons for the dissent. The observations concerned the practice which had been adopted of limiting the issues which the primary judge tried. Their Honours stated, at [168]:

In Perre v Apand Pty Ltd, attention was drawn to difficulties that can be caused when that course is adopted. In light of the experience in this case, what was there said should be restated with emphasis. The attractions of trials of issues rather than of cases in their totality, are often more chimerical than real. Common experience demonstrates that savings in time and expense are often illusory, particularly when the parties have, as here, had the necessity of making full preparation and the factual matters relevant to one issue are relevant to others, and they all overlap.

27    That particular observation accords with my own experience from practice. The benefits of a trial of separate questions of law, or fact, apparent as a matter of first impression often do not survive a more reflective consideration of the potential for elongation of the final disposition of a proceeding that may yield.

28    In this particular case, of even a limited form of consolidation for the purpose of stating particular questions, or if not consolidation, even a limited form of hearing together for that purpose, is truly more apparent than real in benefits. And that is so notwithstanding the urging in written submission on behalf of the applicants of that course. The facts here are truly disparate, both as to premises, point in time, related to that prevailing public health directives, and related to that prevailing understandings of risk, according to prevailing medical opinions, one might apprehend.

29    Even if one were to assume particular facts for the purpose of stating a question, that would still leave particular respondents to highlight by evidence that their facts were different.

30    I can see no virtue at all in consolidation, either in respect of the two cases mentioned or in respect of any others, even in a limited form; and even in relation to hearing together. That would visit upon particular respondents the burden of hearing evidence in respect of cases of no concern to them at all.

31    Consolidation would also visit upon respondents the position that there is but one proceeding. It would be distinctly difficult, in those circumstances, for there still to be multiple representation of respondents.

32    All in all, it seems to me that the range of factual permutations and combinations at large, even on the present state of the pleadings in cases where the same have been filed is such that it is not appropriate to order any form of consolidation or hearing together. Neither is it appropriate to endeavour against such desperate facts to state any of the questions which are promoted for the applicants.

33    For these reasons, I dismiss the application.

34    In so doing, and as I have already indicated, I am well persuaded that this is a case which demands the identification if possible, by the court, and demands also the like focused attention of the parties, in identifying particular test cases. That may well in turn require that other cases be stayed pending the determination of such cases. It would not, however, be appropriate for me to order any such stay. I am not the docket judge for all cases. Further, particular respondents may seek to persuade the court that, nonetheless, a particular case ought not to be the subject of a stay prior to determining whether leave and any related extension of time should be granted.

35    It is necessary now to consider what to do in relation to costs. Although the application has failed, it was probably always necessary to have a case management proceeding which entailed some degree of collecting together respondents to the end of seeking to identify test cases. I am well seized on the sentiments which have underpinned Ms Muradian’s application.

36    Subject to submissions, which may be made by any of the respondent or the interested parties, what I have in mind is ordering in respect of QUD404:

(1)    that the costs of the application be the respondents' costs in the proceedings, in any event;

(2)    and as to each of the other proceedings, that the costs of the interested party be that interest party's costs in those proceedings, in any event.

37    Application has been made in a particular case for an order other than the costs be a particular respondents’ costs in particular proceedings. It precedes from the hardly surprising premise that in the ordinary course of events, an exercise of a discretion in relation to costs under s 43 of the Federal Court of Australia Act would seek costs follow the event. The event, in this particular case, is an outcome in respect of the interlocutory application which has seen that application dismissed.

38    The view which I expressed in relation to the application was that I considered that underlying it was an attempt by the applicants to find a way forward in respect of a range of cases concerning alleged violations of human rights, which was just and, included in just, cost effective.

39    As I highlighted in observations made before dealing with the interlocutory application and directed to a class of cases generally, there are obligations in respect of solicitors as officers of the court referred to in Caboolture Park Shopping Centre Pty Ltd (In Liq) v White Industries (Qld) Pty Ltd (1993) 45 FCR 234 with respect to the conduct of litigation which give pause to thought as to whether s 37N and s 37M of the Federal Court of Australia Act were really but declaratory of obligations and the over-arching purposes of civil litigation in the modern era.

40    A notable feature of the position prior to the hearing of this interlocutory application was the absence of promotion of some creative solution on behalf of the respondents to the disposition of a litigious sequel to the pandemic apt for the circumstances of the present case, and also those of others. It must necessarily have been apparent to those acting on behalf of the respondent who has sought an order for costs that its circumstances, whilst unique, formed part of a class of cases. I heard nothing by or on behalf of that respondent by way of a creative solution as an alternative. In my view, that is not in accordance with the overarching purpose of civil litigation. The particular respondent has, of course, succeeded. In my view, its interests are sufficiently met by an order which will give it the costs of those proceedings, in any event. I, therefore, dismiss the application for costs other than in that form.

Associate:    

Dated:    3 March 2023

Schedule A