Croker v Department of Education and Training

REASONS FOR JUDGMENT 1 The applicant has commenced a proceeding under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (the Rights Act) alleging unlawful discrimination. The respondent to the application is named as State of New South Wales, Department of Education and Training (the State). By notice of motion filed on 20 February 2009 the State has moved for summary dismissal of the proceeding. Alternatively, the State has asked for security for the costs of the proceeding. 2 There is evidence before me that the costs of the proceeding are likely to be in the vicinity of $20,000 if they continue. The applicant concedes that, if an order for costs in the sum of $20,000 were made in the proceeding today, he would be unable to meet it. In his application in terms of Form 167 under Order 81 of the Rules, the applicant asserts that the State is an agency carrying on business as an authority within the meaning of the Rights Act and is an education provider within the meaning of the Disability Discrimination Act 1992 (Cth) (the Discrimination Act). 3 The applicant claims that he was enrolled in a Diploma of Website Development (the Diploma) at the Sydney Institute of Technology TAFE, New South Wales and that he was under a disability. The Form 167 filed by the applicant furnishes no particulars whatsoever of the nature of the disability. In the Form, the applicant says that he informed the respondent that, because of his disability, not all units in the Diploma would be attempted. He complains that, on 29 January 2008, when he attended to re-enrol in the Diploma, the respondent failed to accept his application. The particulars are that the respondent failed to accept his application on the grounds of inadequate education level, inadequate finance and full enrolment. There is no allegation that the respondent failed to accept his application by reason of some disability. 4 The applicant also complains that he commenced a proceeding before the Human Rights and Equal Opportunity Commission (the Commission) and that the respondent wrongly defended his application to the Commission and knowingly engaged in acts and omissions that constituted contravention of the Rights Act by filing a response to his complaint that was unsigned and undated. He alleges that the response contained information or statements that were knowingly false and misleading in material particulars. The applicant claims that the respondent has caused him to incur administrative costs, which are not particularised, and has caused him embarrassment, caused him to be defamed and caused him a loss of use of amenity and injury to liberty. On their face, those complaints do not appear to have any connection whatsoever with the allegations that are made against the respondent. 5 The first basis upon which the State seeks summary dismissal is that the institution providing the educational services that the applicant apparently sought is the Technical and Further Education Commission, a body corporate formed under the Technical and Further Education Act 1990 (NSW). That Act apparently provides that the Commission may use and act under the name TAFE Commission. 6 Clearly the proceeding as presently constituted cannot possibly succeed and it should be dismissed. Whether or not the applicant has a valid claim against the TAFE Commission is a matter about which I am presently unable to express any view. It may be that the applicant will commence a fresh proceeding against the TAFE Commission. However, unless any such proceeding discloses some basis for relief, which is certainly not disclosed in the present application, any such further proceeding would suffer the same fate. 7 The State has asked that the Court, in effect, to preclude any such further attempt by the applicant. Specifically, the State asks for an order that the applicant be restrained from instituting any proceeding against the State relating to the subject matter of the present proceeding without the leave of the Court. 8 I am not at present disposed to make such an order. It may be that there is some basis upon which the applicant can indicate that he has been discriminated against. There is no basis in the material before me so far to suggest he will be able to do that but I am not prepared to preclude his making an attempt to do so. However, as I have said, if he does commence a fresh proceeding in relation to alleged discrimination in connection with his enrolment for the Diploma and does not specify with specific clarity the basis upon which it is alleged that his rejection was on the basis of his disability, that proceeding should also be dismissed as having no prospects of success. However, I am not in a position to pre-empt what might be done if such a proceeding is commenced. I therefore decline to make the order sought by the State. 9 The State seeks its costs of the motion in respect of which it has been wholly successful. The State asks for an order that the applicant pay its costs in the sum of $8,000. In the absence of any evidence as to the way in which that sum is calculated, I would not be disposed to make such an order. However, it would be preferable for a lump sum order to be made to avoid the cost and inconvenience of a taxation. Accordingly I propose to direct the respondent to file and serve an affidavit no later than 27 March 2009 indicating the basis upon which it seeks an order for costs in a lump sum. 10 I will stand the matter over to 1 April 2009 for the purposes of hearing further argument on the question of costs. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.