Federal Magistrates Court of Australia|2004-11-26

Damiano & Anor v Wilkinson & Anor [2004] FMCA 891 (26 November 2004)

HUMAN RIGHTS - Whether applicants' son was 'victimised' by the principal of his school - complaint made to HREOC dismissed, appeal of that decision - preliminary application for summary dismissal - whether applicants have made out grounds for a reasonable cause of action.

That the application filed 17 July 2001 be dismissed.

At the outset I apologise to the parties for the delay in delivering reasons. This resulted from an administrative oversight by me, which I sincerely regret.

The applicants rely upon a complaint made to the Human Rights and Equal Opportunity Commission (HREOC) via a letter of 8 December 2000 to found the application to this Court filed 17 July 2001. The complaint was terminated on 18 June 2001.

The complaint alleged that the applicant's son Antony was being "further victimised" by the First Respondent David Wilkinson, principal of the Bundaberg State High School.

An earlier complaint ("the first complaint") made to HREOC alleged Anthony had been discriminated against by Education Queensland in the provision of education services, on the ground of disability, while he was a student at Bundaberg High School. The complaint was terminated on 17 November 2000 "as lacking in substance".

It is common ground, that as no application was made to the Court based upon the allegations contained in the first complaint, the Court has no jurisdiction to hear and determine those allegations.

The Applicants say they will only rely upon the making of the first complaint as the basis for the victimisation complaint made on

8 December 2000.

The hearing proceeded on a preliminary issue raised by the Respondent Education Queensland, namely that the Application be summarily dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001. Notice having been given to the Applicant of this application, I formally dispensed with the need for the Respondent to file and serve an application to dismiss.

The Respondent (who of course is the Applicant in this preliminary issue, asserts that:-

a) The Application was filed one day outside the time limit of

28 days prescribed by s.46PO(2) of the HREOC Act. This ground has no utility as a result of my order of 25 September 2001, giving leave to file out of time;

b) The application deals with matters that were not the subject of the complaint terminated on 18 June 2001; and

c) The allegations that are before the Court fail to disclose a breach of s.42 of the Disability Discrimination Act 1992 (DDA).

The Applicants say in their submissions that:-

a) "The effect of s.46PO (3) is to allow a degree of flexibility to allow the applicant to incorporate allegations that are the same as the facts arising from the terminated complaint, and also incorporate allegations of facts that are different but of the same substance as those formally alleged in the terminated complaint." Further, in the alternative, the Applicant says the complaint "was general and brief in nature", the allegations of fact which differ "are of the same legal substance, the legal substance being victimisation". Accordingly the Court has jurisdiction to hear allegations of unlawful discrimination on those facts in the application."

b) The evidence does establish a prima facie allegation of victimisation.

Are all allegations the subject of the complaint terminated on 18 June 2001

Section 46PO (3) of the HREOC Act provides that:-

"The unlawful discrimination alleged in the application:-

(a)

Must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or

(b)

Must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint."

The section has been considered in a number of matters in this Court (see Bender v Bovis Lend Lease PTY LTD (2003) FMCA 277; Rispoli v Merck Sharpe & Dohme & Ors (2003) FMCA 160; Hollingdale v Northern Rivers Area Health Service (2004) FMCA 721. These decisions followed the clear lime of authority established by Travers v State of NSW (2000) FCA 1565 and Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531; (2000) 105 FCR 573.

The effect of s.45PO(3) is to limit the Applicant to allegations that relate to the complaint made on 8 December 2000.

Although I accept that the Applicants, being unrepresented at the time the Affidavit was filed on 17 July 2001, may not have been able to specifically confine their evidence to the issues complained of in the letter of 8 December 2000, I am of the view that the Applicant's may have thought the Court should determine all earlier issues.

At paragraph 9 of the Affidavit of Judith Damiano, she lists 40 "facts" which she says "supports this Application".

I accept the submission of the respondent that the allegations of discrimination contained in paragraphs 1 to 21, 24, 25, 29 and 31 to 38 are not the same in substance as the allegations of victimisation contained in the complaint of alleged unlawful discrimination are not within the jurisdiction of this Court to determine.

Do the remaining allegations disclose a breach of s.42 of the DDA

Relevantly, s.42 of the DDA provides that:-

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

(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

(b)

has brought, or proposes to bring, proceedings under this act against any person;"

Before turning to the remaining allegations, by way of brief background, the Applicants have alleged that their son Antony (who was 16 years old at the time of the application to this Court) was unfairly treated in class and as a student trombone player who was interested in joining the School Band and other musical events at Bundaberg State High School.

In particular the Applicants alleged that:-

a) "John and myself made three telephone calls to Bundaberg State High School over a period of seven days before our telephone calls were returned"

b) "I was shouted at by Mr Wilkinson during a telephone conversation with him on Friday 24 November 2004"

c) "Mr Wilkinson shouted that he would speak with me 'only when he was ready to do so'"

d) "Mr Wilkinson indicated that there would be no auditions for Antony at the commencement of 2001 because I had taken my complaint to the Human Rights and Equal Opportunity Commission."

e) "I asked Mr Wilkinson if I could say something. He shouted: 'No! You have already said too much. You have taken your complaint to the Human Rights and Equal Opportunity Commission and also back to the Education Department.'"

f) "Mr Wilkinson made very damaging statements to the News-Mail including that our complaint was 'trivial, vexatious, misleading or lacking in substance'. He said 'She's taken it to the highest authority and its been thrown out'. 'The school is currently investigating what legal recourse we have in terms of taking action against people who are guilty of those sorts of complaints, because there is a high degree of harassment we want investigated.' Mr Wilkinson said similar complaints made to the Criminal Justice Commission could see the complainants face hefty fines or even jail sentences. Mr Wilkinson stated that he was confident that the school community stood behind the teachers' decisions regarding orchestra places."

As a consequence of this conduct the Applicants' alleged that Antony suffered emotional distress and sought an apology and compensation.

The complaint to HREOC is contained in the letter of 8 December 2000, which is in the following terms:-

"I wish to advise that we are concerned about Mr Wilkinson's comments to me during a phone conversation with him on

24 November 2000 and he reiterated his comments to the Bundaberg News-Mail published 2 December 200. He advised the News-Mail that a complaint could be overturned if the Commission was satisfied the complaint was 'trivial, vexatious, misleading or lacking in substance'. Mr Wilkinson said similar complaints made to the Criminal Justice Commission face hefty fines or even jail sentences.

Our other concern is that we waited one week for Mr Wilkinson to return my call and upon doing so he shouted at me that he would see us only when he was good and ready to do so and that as my case with you has been terminated there was certainly no chance of auditions being done in the future. However, you will recall that Mr Wilkinson previously made an offer of further opportunity for Antony with your Commission in a letter dated 26/5/2000. (page 13)

I believe that Antony is being further victimised and would like you to investigate on our behalf."

The respondent submits that consideration of each of the alleged claims of victimisation on the grounds referred to in s.42(2) of the DDA upon the facts alleged, if proved, would not amount to a breach of s.42 of the DDA.

For victimisation to be established, one of the grounds referred to in s.42(2) of the DDA must be a "substantial and operative" factor for the action taken (see Bailey v ANU (1995) EOC 92-744). Plainly, in this matter, a ground is alleged to exist (that a complaint had been lodged), however there must be both:-

a) A detriment or a threat to cause detriment to the Complainant; and

b) A causal link between the detriment and, in this case, the lodgement of the complaint to HREOC.

Detriment is not defined in the DDA, however I was directed to three authorities which, combined shape the definition of detriment as placing a complainant "under a disadvantage of a matter of substance" (Bogie v University of Western Sydney (1990) EOC 92-313) or "suffers a material difference in treatment" (Bailey v Australian National University (1995) EOC 92-744) which is "real and not trivial" (Sivanathan v Commissioner of Police (NSW) (2001) NSWADT 44).

I am satisfied that the allegations at paragraph 9(22) (no return of telephone calls); paragraph 9(23) (shouting on phone on 24 November 2000) and paragraph 9(26) (only prepared to speak when he "was good and ready"), could not if proved amount to victimisation within the meaning of section 42 of the DDA. Whilst I can imagine the Applicant felt angry by what they saw as a continual refusal to discuss their grievances with the Headmaster, the complaints are trivial and lack particularity.

The context of the allegation at paragraph 9(3) of the Affidavit is that Mrs Damiano, apparently engaged a journalist with the Bundaberg News-Mail "out of sheer frustration because Mr Wilkinson refused to make an appointment to discuss our concerns".

The concerns, I infer remained the parents disappointment (probably shared by Antony) that he had not been given an opportunity to audition, and was unlawfully discriminated as a result.

That issue having been before HREOC; subjected to conciliation in Bundaberg; terminated by the President as "lacking in substance", was not the subject of an application to a Court.

In the circumstances, and assuming that Mr Wilkinson was quoted accurately by the Bundaberg News-Mail, his response to the allegation made to the Newspaper was both accurate and understandable. The principal and the school were, when Mrs Damiano took the issue into the public arena, entitled to respond, although they may have elected to make "no comment".

I do not agree with the submission of Mr Laikland for the Applicants that the words:-

"The school is currently investigating what legal recourse we have in terms of taking action against people who are guilty of these sorts of complaints because there is a degree of harassment we want investigated."

The discrimination complaint had been dealt with and concluded. The principal did not say he was taking action against the complainant, merely investigating any recourse.

Mr Laikland said:-

"that the words uttered by the Principal, David Wilkinson, as far as relationship to CJC and harassment and that somebody is guilty of bringing a discrimination compliant, are words that go against a right to bring a discrimination complaint..."

I disagree. It reported what had happened. When the complainant did not obtain the desired result from HREOC, it seems Mrs Damiano decided to go to the Press. She was perfectly entitled to do so. The Principal was also entitled to respond.

I do not accept that the words are capable of constituting victimisation within the meaning of s.42.

The final issue relates to paragraphs 9 (27), (28) and the allegation that the Principal indicated there would be no auditions for Antony at the commencement of 2001 because a complaint to the HREOC had been made.

The evidence relied upon creates a reasonable inference that the discussion with the Principal and Mrs Damiano occurred on

24 November 2004. This conversation precedes the letter of complaint (about victimisation) on 8 December 2000 and is subsequent to the first complaint of discrimination being terminated on 17 November 2000.

The complaint of 8 December is that:-

"As my case with you (HREOC) has been terminated there was certainly no chance of auditions being done in the future."

The way in which paragraph 9(27) is drawn, the clear statement is attributed to the Principal that there would be no auditions for Antony "because I had taken my complaint" to HREOC.

The letter of 8 December, written as it was only about 2 weeks after the telephone conversation, suggests that the earlier decision of the School not to allow Antony to audition, was not going to be reconsidered because, as the Principal saw it, the earlier decision had been resolved in favour of the school with the termination of the complaint.

By the affidavit, the Respondent alleges a quite different statement by the Principal. It is not a complaint which was put, in those terms, to HREOC in the letter of 8 December, and for the reasons earlier mentioned is excluded from discrimination by s.46PO(3).

"13.10 The Court may order that a proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding, if it appears to the Court that in relation to the proceeding or claim for relief:-

(a)

No reasonable cause of action is disclosed; or

(b)

The proceeding is frivolous or vexatious; or

(c)

The proceeding is an abuse of process of the Court.

The test to be applied before a Court should summarily terminate an application without the Applicant having an opportunity to present its full case in the usual way has been variously addressed as:-

"...so obviously untenable that it cannot possibly succeed."

"...so manifestly faulty that it does not admit an argument."

"...disclose a case which the Court is satisfied cannot succeed."

"...under no possibility can there be a good cause of action."

(see Barwick CJ in General Steel Industries Inc v The Commissioner for Railways NSW (1964) 112 CLR at 129)

I am conscious of the remarks of Lander J recently, sitting as the Full Federal Court in Rana v the University of South Australia (2004) FCA 559 that:

"In my view, because the FMCA Rules do not require pleadings, the parties are not obliged to tender all their evidence when the application and responses are filed; there are few, if any, interlocutory processes available, and the Federal Magistrates Court is a low cost court, the Federal Magistrates Court should be very cautious about summarily dismissing an applicant's proceedings. That course should only be adopted when it is clear, beyond any doubt, that the applicant has not, and cannot, articulate in writing a reasonable cause of action. As I have already said, the philosophy of the Federal Magistrates Court is to provide inexpensive justice and a streamlined dispute resolution process. Litigants will often be self represented and the documents they rely on as founding their claim will no doubt often be imprecisely articulated. In those circumstances, there is even more reason for the Federal Magistrates Court to be cautious before summarily dismissing an applicant's claim."

I am satisfied that no reasonable cause of action capable of success has been disclosed.

I am therefore bound to dismiss the application before the Court filed 17 July 2001. I so order.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Baumann FM

Magistrates Court Rules 2001

Discrimination Act 1992

Damiano & Anor v Wilkinson & Anor [2004] FMCA 891

At a glance

Court

Decision date

Source

Judgment (43 paragraphs)

Damiano & Anor v Wilkinson & Anor [2004] FMCA 891 (26 November 2004)

Parties

Legislation Cited (2)

Cases Cited (1)