REASONS FOR JUDGMENT
KENNY J:
the history of the proceedings
3 This is a consolidated appeal in two separate proceedings. The judgment under appeal is a judgment of the Federal Magistrates Court delivered on 19 October 2004, dismissing applications by the appellant, James Rainsford, in which he alleged that the respondents indirectly discriminated against him contrary to the Disability Discrimination Act 1992 (Cth) ("the DDA").
4 The proceedings have a protracted history. They stem from complaints made to the Human Rights and Equal Opportunity Commission ("HREOC") in March 2000 and September 2001. The failure to resolve these complaints to Mr Rainsford's satisfaction led to his instituting a proceeding in the Federal Magistrates Court and a proceeding in this Court, which was subsequently remitted to the Federal Magistrates Court. At the time Mr Rainsford made his complaints to HREOC and instituted these proceedings, he was serving a sentence of imprisonment and was deemed to be in the custody of the Secretary to the Department of Justice of the State of Victoria: see Corrections Act 1986 (Vic), s 4(1).
5 At some time prior to his imprisonment, Mr Rainsford injured his back and received surgery for the injury. These proceedings relate, in part, to a consequential "disability" for the purposes of the DDA. In his reasons for the judgment under appeal, the learned Federal Magistrate stated:
Mr Rainsford has at all times made it clear to the prison authorities that he has suffered from a disc prolapse. He made several attendances upon doctors and received medical certificates indicating that he was not fit for work or for lifting to certain weights or bending.
See Rainsford v State of Victoria and Anor (No 2) [2004] FMCA 707 ("Rainsford") at [8].
Mr Rainsford's complaints concern the arrangements made by the prison authorities for his transport between prisons and for his accommodation in the Charlotte Management Unit of Port Phillip Prison.
6 There was a hearing in the proceedings before Chief Federal Magistrate Bryant, as she then was, on 17 and 18 September 2003. At the hearing, a number of individuals gave evidence, including Mr Rainsford. In written submissions dated 16 October 2003, Mr Rainsford alleged that, contrary to s 24(1)(c) of the DDA, the first respondent had indirectly discriminated against him on the ground of his disability by transporting him between prisons in vehicles that did not allow him to stand up or stretch his back. In what was said to be a case of indirect discrimination, Mr Rainsford claimed that the first respondent had required him to comply with a requirement or condition to be reasonably or sufficiently comfortable in these transport arrangements or to maintain the state of his back, in circumstances in which: (a) a substantially higher proportion of individuals without the disability were able to comply; and (b) it was not reasonable. Further, in relation to his accommodation in the Charlotte Management Unit, Mr Rainsford alleged that, contrary to s 24(1)(c) of the DDA, the first and second respondents had indirectly discriminated against him on the ground of his disability in (1) failing to make adequate or any allowance for his exercise regime; and (2) failing to provide facilities that did not aggravate his injury. In connection with the Charlotte accommodation, Mr Rainsford alleged that the first and second respondents required Mr Rainsford to comply with a requirement or condition to be reasonably or sufficiently comfortable in the cell, or to maintain the state of his back, in circumstances in which: (a) a substantially higher proportion of persons without the disability were able to comply; and (b) it was not reasonable. In answering submissions, the respondents denied these claims.
7 Judgment had not been delivered when, in June 2004, her Honour was appointed Chief Justice of the Family Court of Australia. Another Federal Magistrate subsequently took charge of the proceedings.
8 At a directions hearing on 29 July 2004, the second respondent proposed to the learned Federal Magistrate that his Honour adopt the "separate decision on questions" procedure in Pt 17, r 17 of the Federal Magistrates Court Rules 2001 (Cth) ("the FMC Rules"). Part 17, r 7 provides as follows:
17.01 Definition
In this Part:
question includes a question or issue in a proceeding, whether of fact or law, or partly of fact and partly of law, and whether raised in a document, by agreement of the parties or otherwise.
17.02 Order for decision
The Court may make an order for the decision by the Court of a question separately from another question at any time in a proceeding.
17.03 Separate question
A separate question must:
(a) set out the question or questions to be decided; and
(b) be divided into paragraphs numbered consecutively.
17.04 Orders, directions or decision
If a question is decided under this Part, the Court may make the orders and directions that the nature of the case requires.
17.05 Disposal of proceeding
The Court may, in relation to a decision of a question under this Part:
(a) dismiss the proceeding or any part of the proceeding; or
(b) give judgment, including a declaratory judgment; or
(c) make another order.
9 The first respondent supported the second respondent's proposal. Counsel for Mr Rainsford opposed it upon the basis that: (1) the use of the procedure would have a tendency to fragment the proceedings; and (2), in any event, only the proposed question as to whether there was a "service" within the meaning of the DDA was suitable for the procedure, the second question as to the existence of a requirement or condition being "very much more closely related to the facts". As will appear, there was force in this opposition. Notwithstanding this opposition, however, his Honour determined to make an order for the decision by the Court of two separate questions. These questions were as follows:
(a) whether, in relation to the Transport complaint, the First Respondent provided a "service" to Mr Rainsford as that word is properly construed in [the DDA]; and whether in relation to the Charlotte complaint, the Second Respondent provided a "service" to Mr Rainsford as the word is properly construed in [the DDA].
(b) whether the First and Second Respondent each imposed a condition or requirement on Mr Rainsford of the kind identified by him: see paragraphs 37 (re the First Respondent) and 59 (re the Second Respondent) of the Applicant's Final Submissions (described as Contentions) dated 16 October 2003.
At pars 37 and 59 of the submissions of 16 October 2003 (referred to in these questions), Mr Rainsford set out the requirements and conditions referred to in [6] above.
10 In further written contentions dated 9 August 2004 and filed shortly before the hearing on the separate questions on 26 and 27 August 2004, Mr Rainsford reformulated the alleged requirements and conditions. In connection with the transport arrangements, Mr Rainsford submitted that there was a case of indirect discrimination in so far as the first respondent required him to comply with a requirement or condition:
(a) to be reasonably comfortable in the transport vehicle without access to conditions which would protect his back from injury; or
(b) to be sufficiently comfortable in the transport vehicle without access to conditions which would protect his back from injury; or
(c) to maintain the state of his back in the transport vehicle without access to conditions which would protect his back from injury.
In connection with the Charlotte accommodation, the indirect discrimination was said to consist of the respondents' requirement or condition:
(a) to be reasonably comfortable in the cell without access to appropriate exercise facilities; or
(b) to be sufficiently comfortable in the cell without access to appropriate exercise facilities; or
(c) to maintain the state of his back without access to appropriate exercise facilities.
11 At the commencement of a hearing of the separate questions on 26 August 2004, the Federal Magistrate gave leave to Mr Rainsford to amend his description of the claimed requirements and conditions to conform to these submissions of 9 August 2004.
12 About a fortnight after the hearing on the separate questions, by notice of motion dated 9 September 2004, Mr Rainsford sought leave again to amend his description of the requirements and conditions given in his written contentions of 9 August 2004. In the case of the transport arrangements, he sought to add to the alleged requirement or condition the words "to be transported without access to conditions which would protect his back from injury". Similarly, in the case of the Charlotte accommodation, he sought to add to the alleged requirement or condition the words "to be in the Charlotte Unit cell without access to conditions which would protect his back from injury". On this occasion, his Honour refused to grant the leave sought, stating, amongst other things, that the case that Mr Rainsford now sought to argue was "an entirely different case to that which came before me". His Honour added, "I have little doubt that the whole matter would have to be re-opened, the previous arguments abandoned and the new case heard": see Rainsford v State of Victoria and Another [2004] FMCA 620 at [6].
the decision of the federal magistrate
13 At [6] of his reasons for judgment ([2004] FMCA 707), the Federal Magistrate set out his approach to deciding the separate questions, saying:
The matter … proceeded on the usual basis upon which separate questions are considered, that is that the evidence of the applicant was taken at its highest. It was not necessary for me to hear any further evidence but I was taken to relevant evidence by each of the parties.
14 Under the heading "The background facts", in relation to Mr Rainsford's complaint about the transport arrangements, his Honour said, at [8]:
So far as I understand the evidence there were no specific medical recommendations relating to the provision of exercise facilities for Mr Rainsford nor to the provision of special facilities for him upon being transported from place to place. The evidence does, however, appear to corroborate Mr Rainsford's complaints that the transport arrangements involved him being in uncomfortable vehicles for long journeys without much in the way of support so that his back was liable to jarring and he was liable to slipping around. Mr Rainsford made a number of complaints about the transport arrangements which he claimed resulted in him suffering severe pain, aching and limitation of movement following any lengthy journey.
15 At [9], the Federal Magistrate accepted that Mr Rainsford's imprisonment in the Charlotte Management Unit lasted for nine days, but stated that there was no medical evidence that Mr Rainsford suffered any exacerbation of his back condition "in relation to this nine day period".
16 His Honour answered the two separate questions in the negative and against Mr Rainsford. After noting, at [18], that Mr Rainsford had restricted his claim to "the provision of services in the management and control of the prison" and, at [19], that the decision of the High Court of Australia in IW v City of Perth (1997) 191 CLR 1 ("IW v City of Perth") did "not provide much assistance to the lower court decision maker dealing with the matter on the cusp of the definition", his Honour said, also at [19]:
If the provision of something of benefit to the recipient is an indicator of the existence of a service then it is obviously arguable that the provision of cell accommodation and motor transport come within the definition. But it does not seem to me that the argument is an attractive one in this case.
17 His Honour went on to explain this comment, at [20] in the following way:
Firstly, the services are not defined in this way, they are defined as the management and control of the prison. Secondly, to allay the provision of cell accommodation within a prison to the provision of motel accommodation or a weekly room in an hotel would be far from comparing like with like. Similarly, the provision of transport from one jail to another where the applicant is being required to move for the maintenance of the good order of the prison service is clearly distinguishable from the provision of such services by a bus company to an individual wishing to travel from Melbourne to Sydney. In the case of these particular prison "services" they cannot be separated from the duty of incarceration. … If, in the case of services of the kind provided by government one distinguishes the statutory duty element by assessing whether the alleged services element is intended to provide a benefit to the complainer then it can be seen that the decided cases are consistent.
His Honour added, at [24]:
There is a clear distinction between a government authority, acting under the authority of statute, deciding whether or not to extend or apply a service to a particular individual and the situation in the instant case, where no discretionary element exists. Whilst undoubtedly there are various aspects of prison life over which a prisoner retains a degree of control e.g. participation in training programs or counselling sessions, his actual incarceration is not one of them. Rather it is the result of the coercive power of the State following judicial determination, and is a decision imposed on both the prisoner and the provider of correctional services. (Emphasis original)
18 His Honour also held, at [28], that an aggrieved person must specify a condition or requirement to make out his case; and the condition or requirement "must exist independently of the service itself and [be] in the nature of a qualification or stipulation that must be obeyed or endured if the services are to be acquired, use or enjoyed". His Honour found, at [29], that there was no evidence of any requirement, as that alleged by Mr Rainsford, that he was "being required to be comfortable but without the means which would enable that state of being to exist". Further, his Honour found, at [29], that "there was no evidence of any requirement by either of the respondents for the applicant to maintain the state of his back". His Honour observed, at [29]:
The respondents were charged with the welfare of the applicant and in order to carry out that duty they may have imposed requirements upon him. But it is difficult to conceive of them imposing a requirement upon him to maintain a state of health even if they could impose requirements upon him which would have that effect. It seems to the court that there are ways in which the applicant could have articulated his complaints so as to bring them within the confines of the Act but the way it has been done is not that. In the absence of any evidence of the requirement or condition, as opposed to evidence of the conditions within the Charlotte Unit or on the vehicles used for transport, the answer to the second question must also be no.
the grounds of appeal
19 The principal grounds for this consolidated appeal were that:
(1) in providing transport between prisons for Mr Rainsford, the first respondent provided a service within the meaning of the DDA;
(2) in providing accommodation for Mr Rainsford in the Charlotte Management Unit, the second respondent provided a service within the meaning of the DDA;
(3) the Federal Magistrate should have held that:
(a) in the case of transport, the first respondent; and
(b) in the case of the Charlotte accommodation, the second respondent required Mr Rainsford to comply with the requirements or conditions of the kind identified by him.
(4) the Federal Magistrate erred in refusing Mr Rainsford's motion for leave to amend his formulation of the relevant requirements and conditions.
There was also a ground of appeal that, if not services, the transport and accommodation involved were facilities within the meaning of the DDA.
20 The respondents filed notices of contention, which, amongst other things, maintained that, even if there were error on the part of the Federal Magistrate in refusing leave to amend Mr Rainsford's formulation of the relevant requirements and conditions, this Court should refuse the application for leave in the exercise of its discretion. Alternatively, the respondents maintained that there were no requirements or conditions of the kind that the appellant's reformulation would allege.
the parties' submissions on the hearing of the appeal
21 At the hearing of the consolidated appeal, at the request of the respondents, counsel for Mr Rainsford provided what were described as "Particulars of Pain Alleviating Measures", the details of which can be put to one side for the moment. Mr Rainsford submitted as follows.
(1) As a matter of ordinary language, the respondents were providing services to him. Citing IW v City of Perth at 44 per Gummow J, he contended that there was no definitive dichotomy between the discharge of the statutory function and the provision of services to those who are the object of the discharge of those functions. Referring to ss 4(1), 8A(2), 8B(1)(a), 9A(1), 17, 21(1), 23 and 47 of the Corrections Act 1986 (Vic) and to various provisions of the Prison Services Agreement (including Recitals E and F, clauses 24.2, 24.4, 29, 40, 41, 46.4 and 47, and Annexures N and T) together with the Operating Deed entered into under clause 61 of the Agreement, counsel contended that, in discharging public duties and performing public functions, the respondents provided transport and accommodation services to individual prisoners, including Mr Rainsford. There was, so counsel maintained, no relevant difference for present purposes between accommodation in an ordinary cell and in the Charlotte Management Unit. Moreover, the fact that prisoners were entirely under the control of the respondents emphasised that the respondents' provision of transport and accommodation was a provision of services to prisoners.
(2) In seeking to reformulate the requirements or conditions relevant to his indirect discrimination case, he did not change the substance of the requirements on which he relied. The amendment, if allowed, would not have required additional evidence or submissions.
(3) This Court should decide the second question propounded by the Federal Magistrate upon the basis of his latest reformulation of the requirements. The High Court, in Waters v Public Transport Corporation (1991) 173 CLR 349 ("Waters"), allowed for flexibility in defining the relevant requirement or condition in indirect discrimination cases; and further, as Rohini Pty Ltd v Krizaic (1991) 30 FCR 300 acknowledged, an appellate court may permit reliance on a different legal characterisation of the facts than that considered by the trial court in certain circumstances.
(4) Relying on Waters at 362-363 per Mason CJ and Gaudron J and 406-407 per McHugh J and Catholic Education Office v Clarke (2004) 138 FCR 121 ("Catholic Education Office") at [100], [103]-[104] and [107] per Sackville and Stone JJ, Mr Rainsford contended that the requirements, in the latest reformulation or as considered by the Federal Magistrate, accurately reflected the position in which he was placed and were properly characterised as requirements for the purposes of s 6 of the DDA.
22 The respondents relied heavily upon the custodial regime established under the Corrections Act 1986 (Vic) in support of their submission that they did not provide services within the meaning of the DDA. In written submissions, the first respondent said:
[T]ransport between prisons is the physical aspect of transferring prisoners from one prison to another. The decision as to which prison, and even which part of a prison, a prisoner is to be placed is a fundamental aspect of prison management and control.
…
"Prison management and control" is not a service in the relevant sense. It is a set of obligations and duties discharged by the first and second respondents for the benefit of the community generally. As far as prisoners are concerned it is erroneous to call this service an act of helpful activity.
Counsel for the first respondent submitted that the transport and accommodation of prisoners lacked the elements of benefit and reciprocity that characterised services for the purposes of the DDA. Unless they had a medical certificate and, save for one exception, the prisoners had no say about their transport, which, according to counsel for the first respondent, was "express". The first respondent reiterated the reasons of the Federal Magistrate in relation to the other issues on the appeal.
23 In written submissions augmented on the hearing of the appeal, the second respondent said:
The authorities demonstrate that core activities undertaken in the discharge of statutory duties, such as the prosecution of crime or the management and control of prisons and prisoners, do not fall within the scope of "services", but are statutory functions of a fundamentally different nature. It is possible that some welfare type services such as the provision of education or services to prisoners' families could constitute services provided by a prison. Such activities are far removed from the statutory duties of the management and control of prisoners which are at the core of the duty of incarceration and maintenance of the security and good order of the prison. … . The control and management of prisoners; and placing and confining prisoners in cells in prison must properly be held to be outside the scope of "services" in the sense in which that term is used in the Act.
In connection with the Charlotte accommodation, counsel for the second respondent submitted that what was at stake was the second respondent's conduct in putting Mr Rainsford into the Management Unit under a separation order under reg 22 of the Corrections Regulations 1998 (Vic). This was essentially a discretionary decision made in the management and control of the prison and did not involve the provision of a service to the prisoner who was subject to it.
24 Both respondents maintained that his Honour was correct to refuse leave to reformulate the requirements and conditions that were said to constitute part of the indirect discrimination case against them. The first respondent submitted that the amendment would have required further evidence to be adduced. The second respondent submitted that it would "be unjust now to permit the amendment to the requirement or condition after the hearing of the separate question".
25 At the hearing of the appeal, the Court raised with the second respondent the propriety of use of the separate questions and the approach adopted by his Honour. In relation to his Honour's approach to the evidence, counsel for the second respondent said, amongst other things, that:
[T]he learned Federal Magistrate was trying to confine himself to one side of the story; simply stating what is … a reasonably well-understood beneficial proposition when there is to be a determination of a proceeding without a full hearing on the evidence.
…
[T]he court needs to bear in mind the somewhat unusual way in which he was doing this. He was doing this from a transcript and a set of exhibits that came about because this matter had already been heard, and his Honour was clearly not making any decisions about credibility. What his Honour was doing was looking at what the evidence showed and giving the applicant the benefit of the doubt about that.
the parties' submissions after the hearing of the appeal
26 A few days after the hearing of the appeal, the Court informed the parties by letter that it had given further consideration as to whether the procedure followed by the Federal Magistrate was appropriate and had formed the tentative view that the discretion exercised by his Honour to state the separate questions without finding facts relevant to them involved an error of law. The letter further stated that:
It would seem that this could follow from the following propositions and authorities.
(1) In courts exercising federal jurisdiction, the separate question procedure is available only where facts have been judicially determined or agreed by the parties. All the facts that are arguably relevant to the determination of a question must be ascertainable as agreed facts or judicially determined facts. Unless a court proceeds upon facts found or agreed, any answer to a separate question is hypothetical. See, e.g., Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 ("Bass") at 357; Director of Fisheries (Northern Territory) v Arnhem Land Aboriginal Land Trust (2001) 109 FCR 488 at 526; Anderson v Wilson (2000) 97 FCR 453 at 461, 484; Jacobson v Ross [1995] 1 VR 337 at 340-342.
(2) It may be especially difficult to use the separate question procedure appropriately where there are questions of mixed fact and law. See Bass at 358-359; Jacobson v Ross [1995] 1 VR 337 at 340-343; Rajski v Carson (1988) 15 NSWLR 84 at 88 per Kirby P and Hope JA.
(3) If the separate question procedure is used, the question or questions must be stated with some particularity. See Jacobson v Ross [1995] 1 VR 337 at 340-342.
(4) There is a clear difference between the separate questions procedure and a "strike-out" application or demurrer. See Bass at 357; Australian Ocean Line Pty Ltd v West Australian Newspapers Limited (1983) 47 ALR 497 at 499; Menhaden Pty Ltd v Citibank NA (1984) 1 FCR 542.
(5) An appellate court is bound to consider whether the separate question procedure is appropriate, whether or not this is a point taken by the parties on the appeal. See Jacobson v Ross [1995] 1 VR 337 at 339.
The Court desires to give the parties an opportunity to be heard as to the law concerning the separate question procedure and its application in this case. That would necessarily involve consideration of the five propositions set out above.
Further, the Court wishes to have the parties' submissions on the appropriate costs order in the event that it takes the view that the use of the separate question procedure in this case was wrong. In this event, it is presently of the tentative view that there should be no order as to costs.
Accordingly, the Court directs that, on or before 27 May 2005, the parties file written submissions as to (1) whether the separate question procedure was properly invoked in this case; and (2) the question of costs if the Court concludes that there was error in this regard.
27 Mr Rainsford's submissions adopted the statement in this letter of the relevant propositions and authorities from which they derived and agreed with the tentative view of the Court that the exercise of discretion to state questions without finding facts relevant to them involved an error of law. It was further submitted that the respondents should pay Mr Rainsford's costs thrown away upon the basis that the second respondent, with whom the first respondent agreed, proposed this course to his Honour and Mr Rainsford's counsel opposed it. These submissions also raised the possibility that the Court might invite the parties to "engage in discussions with a view to agreeing a set of facts sufficient to satisfy the requirement identified in the authorities". They said:
Although this ought properly to have been done before his Honour made the order, it is respectfully submitted that the error - which is procedural not substantive - can even now be rectified, with no prejudice to any of the parties.
28 In its submissions, the first respondent began by noting that:
[T]he separate questions were posed in circumstances where the parties were desirous of avoiding the further costs of a full hearing, where the relevant facts were not in dispute and the first respondent was prepared to accept, for the purposes of answering the questions the facts raised by the appellant in his contentions.
In relation to the transport complaint the appellant alleged and the first respondent admitted that he was transported between prisons during his sentence. The appellant further alleged that the reason for the applicant being transported between prisons "were not relevant for present purposes". In those circumstances, the appellant had identified the "universe of relevant factual material" and those matters were not in dispute.
29 Notwithstanding this opening, the first respondent:
… accepted that the facts were not agreed and his Honour did not make findings of fact including those facts that were necessary to underpin the consideration of the two issues raised in the separate questions. It is also accepted that the facts identified by the appellant in the "Applicant's Amended Final Contentions" may not have exhaustively set out the relevant factual material.
That being so, the questions did not have the factual underpinning and should not have been asked without formal agreement as to the facts or judicial determination of those facts.
In the light if that concession is made by the first respondent it is conceded that the answers given to the questions posed cannot stand.
30 The second respondent submitted that it made the proposal for decision of separate questions, because of the unusual circumstances then obtaining in the case, and the costs that had already been thrown away and which were not recoverable under the Federal Proceedings (Costs) Act 1981 (Cth). The second respondent submitted that:
[T]here was no issue between the parties that the separate question procedure was inappropriate because the relevant facts were not clear or remained in dispute. Insofar as each of the separate questions was concerned, the relevant facts were of small compass: that is, the conduct alleged to be the provisions of "services" as against each respondent was clear, and the issue whether the condition as expressed by the appellants had been imposed was also clear. However, the second respondent accepts that the facts were not agreed by the parties for the purposes of the separate question procedure and nor had his Honour made findings of fact on the relevant issues (see Judgment, pars 7-9).
In those circumstances, the second respondent accepts that, on the basis of the authorities to which the Court has referred, it would be open to the Court to conclude that the learned Federal Magistrate's exercise of discretion to state two separate questions without finding facts relevant to them involved an error of law.
In the event that the Court finds that the discretion of the Federal Magistrate did involve such an error of law, the second respondent also accepts that the necessary consequence is that the matter be remitted to the Federal Magistrates Court to be determined according to law.
31 The second respondent contended that, bearing in mind the notice of consolidated appeal, it would be inappropriate to either dismiss or allow the appeal; and, in any case, the separate questions would fall to be determined in any remitted proceedings. The second respondent did not oppose:
(a) an amendment of the consolidated Notice of Appeal, to replace all of the current grounds of appeal with a ground relating to the question of whether his Honour Raphael FM erred in stating the separate questions without finding facts relevant to them ("the separate questions ground");
(b) in the alternative, a discontinuance of the current appeal and the filing of a Notice of Appeal containing the separate questions ground;
(c) orders of the Full Court
(i) allowing the appeal on the separate questions ground;
(ii) setting aside the orders of Raphael FM:
a. made on 2 August 2004, for the hearing of the separate questions;
b. made on 19 October 2004, giving answers to the separate questions and dismissing the proceedings; and
(iii) remitting the matter to the Federal Magistrates Court for determination.
32 Referring to the orders made in Director of Fisheries (Northern Territory) v Arnhem Land Aboriginal Land Trust (2001) 109 FCR 488 ("Fisheries v Arnhem Land Trust") at 526-527, both respondents submitted that there should be no costs of the appeal since all the parties had proceeded on the basis that the questions were properly asked. The first respondent submitted that the costs below should be reserved to the Federal Magistrates Court. The second respondent accepted that the costs orders made by the Federal Magistrate would need to be set aside. Citing Malpas v Malpas (1885) 11 VLR 670 at 711; Stewart v McKinley (1885) 11 VLR 802 at 809; and Brownlie v Overend [1979] VR 283 ("Brownlie v Overend") at 287-288, the second respondent submitted that "the general rule in relation to costs when a retrial is ordered is that the costs of the first, aborted trial, abide the event of the second". It added that "[a]n equally appropriate alternative is to order that the costs of the earlier trial are to be in the discretion of the judge hearing the second trial, to be determined in the light of all of the circumstances in the proceedings". In connection with this submission, the second respondent said:
In the present case, there have now been two full hearings without outcome, both the trial of the matter before Bryant CFM and the hearing of the separate questions. The unfortunate circumstance is that all costs subsequent to the hearing before Bryant CFM were occasioned by the fact that her Honour was unable to deliver judgment prior to her elevation. Although that circumstance would appear to be covered by s 10(2) of the Federal Proceedings (Costs) Act 1981 (Cth), the Second Respondent is ineligible for a certificate under the Act (see s 14(f)). In light of the history of the proceeding, and the principles as to the usual order as to costs in the event that a retrial is required, it is submitted that the most appropriate order would be that the costs of all the proceedings before brant CFM and Raphael FM to the date of the Full Court's orders should be in the discretion of the Federal Magistrate to whom the proceedings are remitted.
33 In further submissions, in relation to which leave was sought, both respondents opposed the appellant's proposal that the Court should invite the parties to agree on the facts. The second respondent observed, "the scope of the facts relied on by counsel for the appellant as relevant to the issues raised by the separate question has changed over time and it is unlikely that agreement on more detailed facts could now be achieved". It added:
The determination of new separate questions by the Full Court on the basis of facts agreed for the first time on appeal would be inappropriate, given the appellate nature of the Full Court's jurisdiction in this matter. It would involve not an appeal from the Federal Magistrates Court, but a trial of a separate question by the Full Federal Court.
consideration of the procedure adopted by the federal magistrate
34 The main object of the Federal Magistrates Act 1999 (Cth) ("the FMA") is to create the Federal Magistrates Court (s 3(1)) but its other objects include "to enable the Federal Magistrates Court to operate as informally as possible" and "to use streamlined procedures" (s 3(2)). Division 8 of Pt 6 of the FMA confers power on the Federal Magistrates to make rules of Court (s 81). The object of the FMC Rules is "to assist the just, efficient and economical resolution of proceedings" (r 1.03(1)) as well as help the Court, amongst other things, to operate informally and to use streamlined procedure (r 1.03(2)). Part 17, which provides for the separate decision on a question in a proceeding, creates a mechanism that may, in an appropriate case, facilitate the object of these Rules
35 The procedure in Pt 17 of the FMC Rules has counterparts in O 29 of the Federal Court Rules 1979 (Cth), Pt 31 of the Supreme Court Rules 1970 (NSW), and r 47.04 of Ch I of the Supreme Court (General Civil Procedure) Rules 1996 (Vic). There is a wealth of authority concerning the use of separate questions procedure under these counterpart provisions. Whilst the use of the separate questions procedure can, in some circumstances, avoid delay and lessen the expense in resolving a proceeding, the cases show that there can also be significant difficulties in adopting the procedure, "especially where no findings of fact have been made and the questions are capable of different interpretations": see Anderson v Wilson (2000) 97 FCR 453 at 461 [28] per Black CJ and Sackville J.
36 In order for a court exercising federal jurisdiction to utilise the separate questions procedure, either the parties must agree upon the relevant facts or the court must determine the facts before seeking to decide the question. This much is clear from the decision of the High Court of Australia in Bass v Permanent Trustee Co Ltd (1991) 198 CLR 334 ("Bass"). In Bass, the High Court was concerned with a number of separate questions, which had been formulated by a judge of this Court and referred to a Full Court of this Court. The Full Court answered the questions, even though there were no findings of fact and the parties had not agreed upon the facts. On appeal, the majority (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ) held that, save in one respect, it was inappropriate to answer the questions because, in the absence of facts judicially determined or agreed by the parties, the questions were hypothetical. At 355 [45], the majority observed that "[t]he purpose of a judicial determination … is the notion that such a determination includes a conclusive or final decision based on a concrete and established or agreed situation which aims to quell a controversy". In Bass, the majority said, at 357 [49]:
As the answers given by the Full Court and the declaration it made were not based on facts, found or agreed, they were purely hypothetical. At best, the answers do no more than declare that the law dictates a particular result when certain facts in the material or pleadings are established. What those facts are is not stated, nor can they be identified with any precision. They may be all or some only of the facts. What facts are determinative of the legal issue involved in the question asked is left open. Such a result cannot assist the efficient administration of justice. It does not finally resolve the dispute or quell the controversy. Nor does it constitute a step that will in the course of the proceedings necessarily dictate the result of those proceedings. Since the relevant facts are not identified and the existence of some of them is apparently in dispute, the answers given by the Full Court may be of no use at all to the parties and may even mislead them as to their rights. Courts have traditionally declined to state - let alone answer - preliminary questions when the questions will neither determine the rights of the parties nor necessarily lead to the final determination of their rights. The efficient administration of the business of courts is incompatible with answering hypothetical questions which frequently require considerable time and cause considerable expense to the parties, expense which may eventually be seen to be unnecessarily incurred.
For the reasons that follow, the present case exemplifies the force of the last sentence in the above passage. As the respondents' submissions make clear, the second respondent proposed, and the first respondent supported, the use of the separate questions procedure in an attempt to limit the expense involved in resolving the proceeding. As it turns out, however, the use of the procedure in this case has not been conducive to the efficient and economical resolution of the proceedings.
37 As we have seen, Bass establishes that, in courts exercising federal jurisdiction, the separate question procedure is available only where the facts have been judicially determined or agreed by the parties. A Full Court of this Court applied this principle in Fisheries v Arnhem Land Trust. This was another case in which the primary judge ordered separate questions to be determined before trial, although in this instance the parties had agreed some facts. A Full Court, constituted by Spender, Sackville and Merkel JJ, allowed the appeal from the primary judge and set aside his answers to separate questions, in large part because the answers had been sought "on the basis of an incomplete set of assumed facts": see 526 [163] per Sackville J, with whom Spender and Merkel JJ relevantly agreed.
38 In this case, the parties did not agree on the facts; and they accept that the Federal Magistrate did not find them. In some places, his Honours' reasons record no more than a tentative opinion about the facts (e.g., [14] above). This is probably consistent with his Honour's statement that he took Mr Rainsford's evidence "at its highest" in answering the questions (see [13] above). In Jacobson v Ross [1995] 1 VR 337 at 343 ("Jacobson v Ross"), Brooking J said:
[I]n order that an appellate court may consider whether it was possible to answer a question posed for preliminary determination and, if so, whether the answer given is correct, the appellate court should be in a position to know, not only what facts the judge himself regarded as relevant, but also what facts were placed before him by the parties, and in what sense they were placed before him … . To say this is perhaps only another way of saying that, for the primary judge himself to be in a position to decide whether he can answer a question and, if so, how it should be answered, it must be clear what facts are before him, and in what sense they are before him.
In failing to find the facts, the Federal Magistrate failed to identify a factual basis for his answers. Apart from being hypothetical in the Bass sense, by virtue of this failure, this Court is not in a position to evaluate the correctness of his Honour's answers. I return to this at [51] below.
39 In purporting to take Mr Rainsford's evidence "at its highest" in answering the separate questions, the Federal Magistrate adopted an approach that would have been appropriate on a strike-out application, although the respondents had not made any application to terminate the proceedings summarily. There is a clear difference between the separate questions procedure and a strike-out application or, indeed, a demurrer. In Australian Ocean Line Pty Ltd v West Australian Newspapers Limited (1983) 47 ALR 497, at 499, Toohey J referred to the case where orders were made under O 29, r 2 of the Federal Court Rules for "the statement of a case and the question for decision" and explained, at 499, that:
It would not be appropriate to approach the matter in precisely the same way as if it were an application to strike out a statement of claim as disclosing no reasonable cause of action. In that case the question is whether it would be open to the applicant upon the pleadings to prove facts at the trial which would constitute a cause of action: Mutual Life and Citizens' Assurance Co Ltd v Evatt (1970) 122 CLR 628 at 631. On such an application it may well be appropriate for the court to say little more than that it is not satisfied that the applicant cannot succeed, without necessarily expressing a concluded view on the questions debated before it.
In Menhaden Pty Ltd v Citibank (1984) 1 FCR 542, Toohey J reiterated that there were important differences between an application for summary dismissal and a determination of a separate question of law.
40 The majority in Bass, at 357 [50], distinguished the separate question procedure from that of a demurrer, which proceeds upon identified assumptions of fact and allows a court to determine whether the assumed facts would provide an effective cause of action, defence or reply. As the majority in Bass stated, at 357 [50]:
[A] demurrer assumes that the pleadings exhaust the universe of relevant factual material. The utility of demurrers is, however, heavily dependent on the pleadings containing all the relevant facts.
The distinction between the separate question procedure and the procedures of summary judgment, demurrer, or taking an objection in point of law is fundamental to the outcome of this appeal: compare Jacobson v Ross at 342 per Brooking J.
41 The separate questions ordered by the Federal Magistrate were questions of mixed fact and law: compare Waters at 361‑362 per Mason CJ and Gaudron J and 406‑408 per McHugh J. The questions could not be answered without regard to the facts of the particular case. After referring to the observations of Brooking J in Jacobson v Ross at 341, the majority in Bass, at 358 [53], noted that "special problems" can arise when the relevant questions are ones of mixed fact and law; and the failure to identify the relevant facts or the means by which they are to be ascertained results in a procedure that does not conform to the judicial process. In this context, the majority said, at 359 [56]:
It is contrary to the judicial process and no part of judicial power to effect a determination of rights by applying the law to facts which are neither agreed nor determined by reference to the evidence in the case.
42 In ordering the separate questions, the Federal Magistrate was bound therefore to identify the facts relevant to them, either by reference to a statement of facts agreed by the parties or as found by him. It may be, as the second respondent submitted, that the determination of the facts that constituted the conduct alleged to be the provision of "services" was within a relatively "small compass": see [30] above. These facts had, nonetheless, to be found; and any question, properly formulated, as to the existence of a requirement or condition for the purpose of s 6 of the DDA required specific and detailed findings of fact.
43 In the absence of agreed facts, it was not open to the Federal Magistrate in this case to proceed to answer the separate questions without finding the facts relevant to the questions; and, in the absence of findings of fact, his answers were hypothetical in the sense referred to in Bass. His Honour therefore erred in answering the separate questions without first finding the facts by reference to which they were to be answered. This would justify setting aside the answers given and substituting a response to the effect that it is inappropriate to answer the questions. I return to this and related matters at [45] below.
44 There were, furthermore, deficiencies in the formulation of the separate questions, especially in the formulation of the second separate question. It became clear on the hearing of the appeal that there was uncertainty as to the precise meaning of the second question and its operation in incorporating Mr Rainsford's contentions as to the requirements or conditions upon which his case of indirect discrimination depended. The very form of the question meant that, were Mr Rainsford to amend his formulation of these requirements or conditions, he necessarily required an amendment to the terms of the second question, although it was not entirely clear whether his Honour and the parties appreciated this at the time of the primary hearing. This complexity compounded the difficulties faced by Mr Rainsford on appeal in seeking to reformulate the alleged requirements or conditions in terms that he said more accurately reflected the facts as he alleged them to be. Of course, in the absence of findings of fact, any discussion about the factual underpinnings of the separate questions was unproductive. This case illustrates that, if the separate question procedure is to be utilised, then both the facts and any question to be decided must be clearly and precisely stated: compare Jacobson v Ross at 340‑341 per Brooking J and Rajski v Carson (1988) 15 NSWLR 84 at 88 per Kirby P and Hope JA.
the disposition of the appeal
45 The parties correctly accepted that this Court was bound to consider whether the Federal Magistrate properly adopted the separate question procedure, even though the issue was not one raised by the notice of appeal. If the answers given by his Honour were hypothetical because they lacked factual foundation, then it is no more open to this Court to answer them than it was to his Honour.
46 The consolidated appeal is against the judgment of the Federal Magistrate, dismissing Mr Rainsford's substantive application, upon the basis of his Honour's answers to the separate questions. Notwithstanding that there is no appeal on foot against his Honour's order for the trial of the separate questions, the Court has power in its appellate jurisdiction to make appropriate orders. Section 28 of the FCA Act, dealing with the powers of the Court on appeal, relevantly provides:
(1) Subject to any other Act, the Court may, in the exercise of its appellate jurisdiction:
(a) affirm, reverse or vary the judgment appealed from;
(b) give such judgment, or make such order, as, in all the circumstances, it thinks fit, or refuse to make an order;
(d) set aside the judgment appealed from, in whole or in part, and remit the proceeding to the court from which the appeal was brought for further hearing and determination, subject to such directions as the Court thinks fit;
… .
47 In Jacobson v Ross, there was no appeal against that part of the primary judge's order directing the preliminary determination of a question but, in considering the question, the Full Court of the Supreme Court of Victoria considered whether it was open to the primary judge to answer the question at all. Both Brooking and J D Phillips JJ (Smith J dissenting) held that it was not, because there was no proper factual foundation. The Court allowed the appeal with costs; set aside that part of the order which answered the substantive question in the affirmative; and substituted for the affirmative answer the statement that "This question cannot be answered at this stage of the proceeding". The Court also reserved the costs to the primary judge, to be dealt with "when the merits on each side will be more clearly understood and appreciated" (371 per JD Phillips J; 346 per Brooking J).
48 In this case, I would allow the appeal. The order for the decision of separate questions ought not to have been made, at least not without finding the facts relevant to them. As there is no appeal against this order, however, the appropriate course is simply to set aside the judgment under appeal and, in lieu, order that it is not appropriate to answer either of the separate questions.
49 The matter of costs also arises. In the Federal Magistrates Court, Mr Rainsford opposed the making of an order for the decision of separate questions (see [9] above), but he did not challenge the appropriateness of the questions on this appeal. All parties proceeded on the basis that the questions were capable of being answered, and Mr Rainsford's case was that the Federal Magistrate's answers were incorrect. In these circumstances, there should be no order for the costs of the appeal. As we have seen, the respondents properly conceded that the Federal Magistrate's costs orders of 1 November 2004 should be set aside and these costs reserved to the Federal Magistrate to be dealt with on the resolution of the proceedings: compare Jacobson v Ross at 346 per Brooking J and 371 per J D Phillips J; also Brownlie v Overend at 287‑288 per Young CJ, Starke and Fullagar JJ. This is an appropriate disposition of the costs below. Given the respondents' concession and the breadth of s 28(1) of the FCA, I would so order, notwithstanding that the orders of 1 November 2004 were not expressly made the subject of the consolidated appeal.
some additional matters
50 As noted (at [19] above), Mr Rainsford appealed against the Federal Magistrate's refusal of leave to amend his formulation of the requirements and conditions on which his case of indirect discrimination depended; and, indeed, his submissions on appeal were largely directed to this reformulation and not to the formulation considered by the Federal Magistrate. If this Court were to permit Mr Rainsford to reformulate his alleged requirements and conditions on appeal, then because of the way the second question is drafted, it would also be permitting a reformulation of the second separate question on the appeal. In Fisheries v Arnhem Land Trust, Sackville J, with whom Merkel J agreed, said that it was arguable that s 28(1) of the FCA Act was "broad enough to empower a Full Court to make an order by consent substituting fresh separate questions for those answered by the primary judge" (524 [147]). Spender J disagreed (at 490 [6]). It is, however, unnecessary to determine whether a Full Court would have the power to order the reformulation of a separate question, as sought by the appellant. This is because the proposed reformulated question would still lack the requisite factual foundation; and, as such, would remain inappropriate to answer.
51 As already noted, counsel for Mr Rainsford proposed that the Court invite the parties to agree on relevant facts. There would, however, appear to be no real prospect that the parties would so agree; and, in any event, in the circumstances of this case, the Court would cease to act as an appellate court if it were to decide the case upon agreed facts, none of which were before the Federal Magistrate; and, as the appellant would have it, by reference to a question or questions that were different from those considered by his Honour. The power conferred on the Full Court by s 28(1) of the FCA Act would not stretch so far.
52 In any case, it is unfortunate if the Court is unable to consider the issues identified by the parties as requiring determination. Given the procedural history of this particular case, it is a matter of special regret. The absence of findings of fact makes it very difficult indeed to provide any guidance to the parties on any substantive matter. An expression of opinion by this Court may be misleading because it is based on a misconception of the facts that are ultimately found: compare Bass at 360 [58]. With this in mind, only some very brief comments may be made about his Honour's reasons in relation to the first question.
53 By virtue of s 24(1) of the DDA it is unlawful for a person who provides goods or services, or makes facilities available to discriminate against another on the ground of the other's disability in the terms or conditions on which the goods, services or facilities are made available, or in the manner in which the goods, services or facilities are made available (s 24(1)(b) and (c)). The first separate question was directed to whether anything the respondents did amounted to the provision of services for the purposes of the DDA.
54 Section 4(1) provides an inclusive definition of services and that, amongst other things, unless the contrary intention appears, "services" includes "services of the kind provided by a government, a government authority or a local government body" (par (f)). As his Honour recognised, on account of its remedial character, the DDA is to be generously construed and the word "services" includes all matters which ordinarily fall within that notion: see IW v City of Perth at 11‑12 per Brennan CJ and McHugh J; 22‑23 Dawson and Gaudron JJ; 27 per Toohey J; 39, 41‑42 per Gummow J; and 69‑70 per Kirby J. The identification of the "service" at issue in any case is a question of fact for the trier of fact: see Waters at 361 per Mason CJ and Gaudron J, with whom Deane J relevantly agreed (382); 394 per Dawson and Toohey JJ; and 404‑405 per McHugh J; and also Catholic Education Office at [12]-[13] per Tamberlin J and [102] per Sackville and Stone JJ. The question of whether an activity is a service for the purposes of s 24 of the DDA is essentially a matter of characterisation. In discharging statutory duties and functions and in exercising statutory powers in the public interest, a body may also be engaged in the provision of services to particular individuals: see IW v City of Perth at 44 per Gummow J; also 12‑13 per Brennan CJ and McHugh J; 24 per Dawson and Gaudron JJ; 29 per Toohey J; and 72 per Kirby J. The