Frost v State of New South Wales, Department of Justice [2019] NSWCATAD 76 | Case summary

Frost v State of New South Wales, Department of Justice [2019] NSWCATAD 76 | Case summary | Zoe

Background

On 3 October 2017, Ms Frost emailed the Supreme Court Registry. In the email, she asked how she could submit a fee waiver form alongside her statement of claim online, as the online system would not accept the statement of claim until payment had been made.
A registry officer replied the same day, stating: "If you require a fee postponement then you CANNOT file online."
Ms Frost replied as follows: "Since I live in a remote place, can you organise so that claims can be accepted as lodged at least for those who are at least able to attend Sydney registry because they need a fee waiver."
The registry officer responded later that day: "Please complete the fee postponement and post it to the registry together with your summons/statement of claim."
On 4 October 2017, Ms Frost filed an application to postpone, remit or waive payment of a court fee and provided the registry with a statement of claim she wished to file to commence defamation proceedings.
On 6 October 2017, Ms Frost filed two more applications to postpone, remit or waive payment of a court fee. She provided a copy of her disability support pension card with these applications. She stated, in the applications, that she had been "seriously ill" for six years and that she was "currently experiencing an improvement in health (sign of remission)." She stated that the limitation period for her action expired "today".
On 8 October 2017, Ms Frost emailed the registry again as follows: "Dear Registrar Thank you for processing my 3 statements of claim on 4-10-17 and 6-10-17 last week. I filed them together with a fee postponement application so I do not have a case number. May I please request the last possible return date so I have a chance to get a solicitor to amend and review my claim and pleadings? I have been chronically ill for a long time and my condition has come into a period of relative remission so I filed the three claims quickly as the date filed was also the limitation period expiration date. Sincerely Julie Frost."
Some time after Ms Frost filed the statements of claim (which Ms Frost remembers to be about two weeks afterwards, but was probably earlier), she called the registry and was told that there was no sign of the statements of claim. In a second telephone call with the registry, Ms Frost told the staff member she did not have a copy of the statements of claim. At the staff member's request, she sent the registry a screenshot of the first two paragraphs of one of them.
On 16 October 2017, Prothonotary Rebel Kenna wrote to Ms Frost as follows: "I refer to your application dated 4 October 2107 requesting Postponement of the filing fee. The application has been considered by the Court and is NOT approved. The registrar has refused the application on the following grounds: The Statement of claim is required to be properly particularized; It is not clear how the applicant would be entitled to the value of damages claimed. It is more cost effective to run this matter in the District Court where the fees are lower. Your documents are returned to you."
Ms Frost sought review of this decision.
On 20 October 2017, Prothonotary Kenna drafted an email, for Chris D'Aeth, the Executive Director and Principal Registrar of the Court, to send to Ms Frost. This email was a draft response to Ms Frost's application for review of Prothonotary Kenna's decision. In the covering email, Prothonotary Kenna informed Principal Registrar D'Aeth that another registry officer had returned to Ms Frost all copies of the proposed pleading but she had not received them in the post.
On 23 October 2017, Principal Registrar D'Aeth sent an email to Ms Frost, in similar terms to that drafted by Prothonotary Kenna, indicating that he considered Prothonotary Kenna's decision to refuse a waiver of the filing fee to be correct.
On the same day, Ms Frost made a request to the Department of Justice, by email, for access to all information held about her and all communication about her from 1 October 2017 to the present and, in particular, communications about her to or from Chris D'Aeth and Rebel Kenna.
On 2 November 2017, a Departmental officer replied to the email, asking her for payment of an application fee and for the application to state that it is made under the Government Information (Public Access) Act 2009 ("GIPA Act").
Ms Frost replied on the same day, stating that it was not necessary to pay an application fee and that it was clear from her email that the request was made under the GIPA Act. On 23 November 2017, Ms Frost emailed the Departmental officer again, complaining that her access application had not been processed.
On 24 November 2017, Ms Frost emailed various people, including the Premier and Attorney General of New South Wales and the "Chief of New South Wales Department of Justice," stating that "Department of Justice employees have lost my claims, one of which was for $5m." This was a reference to the apparent loss, by the Department, of the statements of claim which she lodged.
Ms Shevlin, of Client Services of the Supreme Court, replied to Ms Frost's email on the same day, stating that her proposed Supreme Court claim was refused in October 2017.
Ms Frost complained to the President of the Anti-Discrimination Board on 2 October 2018. Her complaint was set out in a long email of seventeen paragraphs, detailing the issues she had had with the Department. She identified the complaint as being one of direct and indirect disability discrimination and victimisation by Departmental staff. The complaint began by referring to a request made on 3 October 2017 to the Supreme Court registry "to consult with the registrar about my disability and adjustments I required in order to access justice," then referred to her applications for postponement of the filing fees, the apparent loss of her statements of claim and the "adverse" treatment by various persons in response to her complaints.
The President accepted her complaints of disability discrimination in the area of goods and services and victimisation under s 89B of the AD Act for the period of 3 October 2017 to 2 October 2018.
On 17 January 2019, the President declined Ms Frost's complaints as lacking in substance. The reasons for the President's decision were as follows: "Ms Frost has provided no information that she notified Supreme Court staff that she had a disability, and required reasonable adjustments in order to access services of the Court. Further, there is no information provided that Ms Frost made a complaint or was suspected of making a complaint of allegations that could amount to disability discrimination. Hence, no unlawful victimisation could arise. However, even if Ms Frost is able to demonstrate that staff were made aware of her disability and requirement for reasonable adjustments, there is insufficient information to support any less favourable treatment on the ground of disability or unlawful victimisation to Ms Frost in relation to the handling of her applications or request for fee waivers."
At Ms Frost's request, the matter was referred to the Tribunal.

[5]

Disability discrimination complaint - general matters

If the discrimination complaint were to proceed, Ms Frost would have the onus of establishing that she had been discriminated against on the ground of disability in the provision of services. Section 49M(1) of the AD Act provides: "49M Provision of goods and services (1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability: (a) by refusing to provide the person with those goods or services, or (b) in the terms on which he or she provides the person with those goods or services."
Section 49B(1) of the AD Act provides for what constitutes discrimination on the ground of disability. It provides: "49B What constitutes discrimination on the ground of disability (1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if the perpetrator: (a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply."
In summary, to prove disability discrimination in the provision of services, Ms Frost would have to prove that: 1. she has a disability or a presumed disability (AD Act, s 49A); 2. the State (through the Supreme Court Registry) provides services connected with the filing of a statement of claim; 3. the Department refused to provide Ms Frost with services or it discriminated against her in the terms on which it provided services to her.
The matters she would have to prove to establish direct discrimination on the one hand, and indirect on the other, are dealt with below under separate headings.

[10]

Was Ms Frost's indirect disability complaint referred to the Tribunal?

The first matter to consider is whether the indirect disability complaint, as Ms Frost articulated it at the hearing, was part of the complaint referred to the Tribunal by the President of the Anti-Discrimination Board.
Ms Frost's initial complaint to the President focused upon the Registry officers' alleged refusal of Ms Frost's request, on 3 October 2017, to consult with the registrar about her disability and adjustments she required in order to access justice. She also claimed that, by losing her "claims" (that is, her statements of claim) and sending insulting correspondence to her, the registry engaged in disability discrimination and victimisation. In the twelfth paragraph of a lengthy email which constituted her complaint to the President, Ms Frost stated: "It was implied by Ms Kenna [who processed her fee waiver application] that …. due to having disability, I should not be given access to the courts because I am not rich enough, and that adjustments or fee postponement or fee waiver decisions would not be made to ensure people with disabilities can access justice."
I consider that this sentence at least arguably raises an allegation of indirect discrimination in the processing of the fee waiver application (in that it could be construed as an allegation that Ms Kenna was imposing a requirement of paying a fee to file a statement of claim, which was unreasonable in the circumstances and with which many people with a disability would not be able to comply).
On 18 January 2019, Ms Frost emailed a staff member of the Anti-Discrimination Board, referring to her request that the President refer her complaint to the Tribunal, and stating: "Attorney General rules apply to processing the application [for a fee waiver or deferral]. If the applicant has a disability pension card and is not a registered vexatious litigant and there is no preferred jurisdiction, the registrar must accept the application. … The registrar has no discretion to determine the merits of the claim,… or consider the merits of the claim when granting or denying fee concessions - which is the only means to access to the justice system for people who have a disability pension card. If it isn't accepted it's indirect disability discrimination."
This email was included in the material referred to the Tribunal.
I consider that this paragraph arguably raises a complaint of indirect discrimination, being that the registrar imposed a requirement or condition (that the claim have sufficient merit) before granting a fee concession.
A complaint referred to the Tribunal is to comprise the original complaint and, among other things, "any other documents or information obtained or recorded by the President that, in the opinion of the President, help to identify the subject-matter of the complaint or otherwise contain an allegation of a contravention of a provision of this Act or the regulations" (AD Act, s 94A(1)(c)).
The Department did not submit that Ms Frost's indirect discrimination complaint, in the form she articulated it at the Tribunal, was not part of the referred complaint.
I consider that there is a reasonable argument that the indirect discrimination complaint Ms Frost now makes, insofar as it relates to the processing of her application for waiver or postponement of the filing fee, is part of the complaint referred to the Tribunal.
However, it appears to me that the complaint Ms Frost made at the hearing, that the filing fee is set too high for people on a disability pension, insofar as it complains about the setting of the fee per se, is not part of the complaint referred to the Tribunal. That is, in any event, a matter determined by regulation (Civil Procedure Regulation 2017, Sch 1).

[11]

Did the Department require Ms Frost to comply with a requirement or condition?

Ms Frost's indirect discrimination case is not clearly articulated. She does not identify with precision the requirement or condition with which she claims the Department required her to comply.
The expression "requirement or condition" is not defined by the AD Act. The alleged "requirement or condition" must be identified with some degree of precision (Australian Iron and Steel Pty Limited v Banovic [1989] HCA 56; (1989) 168 CLR 165 at 185; Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 393, 406-7; Catholic Education Office v Clarke [2004] FCAFC 197; (2004) 138 FCR 121 at 143; King v University of Notre Dame Australia [2017] NSWCATAD 58 at [50]). However, "considerable latitude is afforded to applicants in formulating the requirements or conditions about which they complain" (Walker v State of Victoria [2011] FCA 258 at [194]).
I understand Ms Frost's case to be that the Department required her to comply with a requirement or condition before it would provide her with the services of attending to the filing of her statement of claims, being either the payment of a filing fee, or the provision of a statement of claim which was particularised and/or which complied with court rules. Her case also appears to be that the Department required her to provide a compliant statement of claim, or one with sufficient merit (a requirement) before giving her a fee concession.
There is a reasonable argument that the Department required Ms Frost to comply with the condition of paying a filing fee, when it rejected her fee waiver application. There is also a reasonable contrary argument, that the requirement to pay a filing fee is imposed by law, and the Department's role is only to relax this requirement where it considers it appropriate to do so.
As to the other putative requirement, part of Ms Frost's complaint is that the registry officers should not have "scrutinised" her statement of claim when determining whether to grant her application for a fee waiver or postponement of the fee. She said that, if she paid the fee, then her statement of claim would not have been scrutinised.
One of Prothonotary Kenna's reasons for refusing the fee waiver application was that the statement of claim was not adequately particularised. The evidence of Principal Register D'Aeth is that he would have rejected any application for a waiver of a filing fee for a statement of claim which failed to comply with certain court rules and which was not adequately particularised.
There is thus a reasonable basis for the contention that the Department required Ms Frost to provide a statement of claim which complied with certain court rules, before processing the filing of it (in the absence of Ms Frost paying the filing fee). This may be described as a requirement or condition.

[15]

Was it necessary to refuse the fee waiver application?

The Department relies upon the application of s 54 of the AD Act as a discretionary factor relevant to the decision to grant leave. The effect of this provision is that any discriminatory treatment, by way of refusal of the fee waiver application, would not be unlawful if it was necessary for Departmental officers to refuse the fee waiver application in order to comply with a requirement of cl 11 of the Civil Procedure Regulation or any instrument made under an Act.
Clause 11(1) of the Civil Procedure Regulation provides that the registrar may, "by order in writing, direct that the whole or part of a fee payable to the registrar be waived, postponed or remitted, subject to any conditions the registrar thinks fit to impose." Clause 11(3) of that regulation provides that the powers conferred by clause 11 are to be exercised in accordance with any guidelines published by the Attorney General.
The Attorney-General has published "Guidelines for the Waiver, Remission and Postponement of Fees" ("Guidelines"). I will assume, for the purposes of this leave application, that they are an instrument made under an Act (although this might be doubted). Clause 8 of the Guidelines provides: "A decision-maker may waive, postpone or remit any fees payable, subject to such conditions as they see fit." Clause 10 provides, relevantly, that, when considering the application, the decision-maker must consider the applicant's financial, social and emotional needs. Clause 11 provides, broadly, that the decision-maker may consider any relevant matter and that applications will generally be granted where the applicant is dependent on social security payments and lacks sufficient income to pay a fee.
Principal Registrar D'Aeth made a statement in these proceedings in which he stated that Ms Frost's statement of claim did not comply with r 14.30 or r 15.19 of the Uniform Civil Procedure Rules 2005 and, even if the Registry was aware that Ms Frost suffered from a disability (which he said it was not), her applications for fee postponement or waiver would not have been dealt with any differently.
I accept that the Principal Registrar is a witness of truth. However, it appears that the registry staff (including Principal Registrar D'Aeth) overlooked the evidence of Ms Frost's disability support pension when making their decision about her fee waiver application. I accept, for the purposes of the leave application, the Principal Registrar's evidence that her application would not have been dealt with any differently if he had been aware that she had a disability. This is not, however, an answer to her indirect discrimination complaint.
Given that the Regulation and Guidelines provide a discretion to grant a fee waiver in the circumstances, I am not persuaded that it is likely that s 54 of the AD Act would be a bar to relief, or that it provides a discretionary reason to refuse leave.

[17]

Direct disability discrimination complaint

In order to prove direct disability discrimination (AD Act, s 49B(1)(a)), Ms Frost would have to prove that: 1. the Department treated Ms Frost less favourably than it treated or would have treated a person without her disability in the same or similar circumstances (differential treatment); and 2. one of the reasons for that treatment was her disability.
In response to the Department's claim that it was not aware that she had a disability, Ms Frost said that, when she applied for a fee waiver, she provided evidence that she was receiving a disability pension. I am satisfied from the documentary material before me that this is the case. Ms Frost also informed the registry by email on 8 October 2017 that she had been chronically ill for a long time.
The nature of Ms Frost's direct disability claim is not clearly set out in her complaint to the President, nor is it entirely clear from her oral submissions at the hearing or other material before the Tribunal. However, it appears from these sources that Ms Frost's complaint is that the Department directly discriminated against her by: 1. scrutinising her statement of claim when processing her fee waiver application; 2. failing to decide her fee waiver application in accordance with the Guidelines; 3. rejecting her fee waiver application; 4. losing or destroying her statements of claim; 5. not dealing properly with her GIPA Act request; 6. not dealing fairly with her complaints.
Ms Frost would, in my view, be unlikely to be able to establish that one of the reasons for any of these actions was that she had a disability. The concern of the officers dealing with her fee waiver application appears to be that the statement of claim was, or statements of claim were, inadequately particularised and non-compliant with the rules. There is no evidence to suggest that those officers would not have rejected the fee application for the same reason if a person without a disability had made it. There is evidence to the contrary.
The registry's emails of 16 and 20 October 2017 indicate that the statements of claim which Ms Frost provided to the registry were returned to her in the mail when her fee waiver application was rejected. Ms Frost states that she did not receive them. Again, there is no evidence that they were lost or destroyed because she had a disability. A more likely explanation is that they were inadvertently sent to the wrong address or misplaced by Australia Post.
There is no evidence that any action taken in relation to Ms Frost's application under the GIPA Act, or in response to the complaints she made to other persons, was related to her disability or presumed disability.
The direct disability complaint is therefore very unlikely to succeed. It would not be fair or just to give Ms Frost leave to proceed with this complaint.

Frost v State of New South Wales, Department of Justice

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Cases Cited (13)