Lovejoy v Myer Stores Ltd

Lovejoy v Myer Stores Ltd - [1999] VSC 271 - VSC 1999 case summary — Zoe

[17]

A similar issue arose before this court in Public Transport Corporation v Waters & Ors [1992] VicRp 10; (1992) 1 VR 151 and subsequently before the High Court in Waters & Ors v Public Transport Corporation [1991] HCA 49; (1991-92) 173 CLR 349. Waters was concerned with the introduction of "scratch tickets" for passengers on trams. Persons with disabilities complained against such introduction to the then Equal Opportunity Board. The complaint was upheld by the Board and the Public Transport Corporation appealed to this court under the relevant appeal provisions whereby the corporation obtained an order nisi. The corporation, in addition to the appeal proceedings issued an originating motion largely repeating the grounds set out in the order nisi and adding some further grounds. J.D. Phillips J at first instance (at 186-188) expressed the view that it was not clear that the additional grounds were open to the corporation as a result of the express time limit contained in the Equal Opportunity Act 1984. The learned judge was concerned with a time limit for the obtaining of an order nisi by way of right of appeal within 28 days of the decision of the Equal Opportunity Board whilst the originating motion under Order 56 allowed judicial review within 60 days. Before J.D. Phillips J it was argued that the then Magistrates' Court Act 1971 provided for an appeal without prejudice to such other right or remedy as may exist. I note that s.109 of the present Magistrates' Court Act contains no such provision. J.D. Phillips J observed that the effect of allowing a party to bring additional grounds by way of an originating motion after an order nisi had been obtained would amount to a circumvention of the appeal procedures under the Equal Opportunity Act 1984 and provide a party with a simple means to appeal out of time. The learned judge stated that he had "grave doubts that the Public Transport Corporation could rely upon the extra grounds". However, as the Corporation had otherwise succeeded it was unnecessary for the learned judge to express a concluded view on this issue.

[19]

"Before this Court, counsel for the Corporation argued that, while the Act does provide a right of appeal, there is an alternative appeal mechanism available under the Supreme Court Rules and that it was not out of time in seeking to raise the s.29(2) defence. At the relevant time, s.49(4) of the Act read as follows: 'Any party to proceedings before the Board may, within 28 days after the day on which the Board makes an order under this Part and after having first served notice of that party's intention to do so on every other party to the proceedings and on the Registrar of the Board, appeal to the Supreme Court against that order on a question of law only as if the order were an order of a Magistrates' Court and the provisions of Part XI of the Magistrates' Courts Act 1971 shall, with such adaptations as are necessary, apply accordingly.' Section 88 of the Magistrates' Courts Act provided for appeal by way of order nisi within one month of the order complained of, but it did so without prejudice to such other right or remedy as may exist. The Corporation described O. 56 as another 'right or remedy' within the meaning of s.88. Consequently, the Corporation claimed that it was entitled to avail itself of O. 56 judicial review proceedings. It may be true that O. 56 is another 'right or remedy' within the meaning of s.88. But s.49(4) does not convert an appeal under that sub-section into an order of a Magistrates Court so that the appeal is under Pt XI of the Magistrates' Courts Act. The appeal is one under s.49(4) and must be lodged within twenty-eight days. The provisions of Pt XI of the Magistrates' Courts Act apply to that appeal 'with such adaptations as are necessary'. The effect of the 'as if' clause in s.49(4) was to apply the procedural machinery of Pt XI of the Magistrates' Courts Act 1971 (now repealed) to an appeal under s.49(4) of the Act with such modifications as were necessary. The policy of s.49(4) as discerned from its terms is that an order of the Board can be challenged only on a question of law by an appeal to the Supreme Court lodged 'within 28 days after the day on which the Board makes an order under this Part and after having first served notice of that party's intention to do so on every other party'. Any provision of Pt XI of the Magistrates' Courts Act which is inconsistent with the legislative intention revealed by that policy must necessarily be modified in its application to an order made by the Board. That means, inter alia, that those parts of s.88 which give a right to appeal within one month of the making of an order and provide that an appeal is not without prejudice to any other 'right or remedy' are not applicable to an order under the Act. The Supreme Court, therefore, had no jurisdiction to hear the proceedings based on O. 56."

[30]

The relevant ground is the alleged illness of Mr Lovejoy during the period when the originating motion should have been filed within time. In the originating motion proceeding Mr Lovejoy filed an affidavit sworn by him on 15 September 1998 in which the matter of special circumstances under Order 56.02(3) was not addressed. In the affidavit he relied upon an affidavit sworn by him on 30 July 1998 in the appeal proceeding. In that affidavit a number of documents relating to the hearing before the Tribunal were exhibited. The affidavit sworn by Mr Lovejoy on 30 July 1998 did not refer in any way to a special circumstance for the purposes of Order 56.02(3). In a further affidavit sworn by Mr Lovejoy on 19 November 1998 and filed in both proceedings he deposed as to two matters. Firstly, that he had been " ... substantially confined to bed due to illness and severe pain from at least 1 May to 1 September 1998". There was no elaboration by Mr Lovejoy in the affidavit as to the nature of the illness and pain he referred to. There was no explanation as to how the alleged illness and pain precluded or prevented him from filing the relevant originating motion within time. In order to satisfy the special circumstance requirement of Order 56.02(3) it is necessary that a party provide adequate evidence as to the circumstance relied upon and not make a broad and general assertion as Mr Lovejoy has done in his affidavit. The second matter dealt with by Mr Lovejoy in his affidavit is the assertion that whilst he had knowledge of his entitlement to "appeal" to the Supreme Court he deposed " ... I did not know what time limits may apply". He described in the affidavit his efforts to ascertain the relevant time limits by speaking to the Registrar of the Tribunal. However, the matters deposed to concerning time limits in the affidavit of Mr Lovejoy sworn 19 November 1998 relate to the time limits for the institution of an appeal under the Equal Opportunity legislation against the decision of the Tribunal and not to the time limits for the issue of an originating motion under Order 56. In an additional affidavit filed in support of the originating motion and sworn by Mr Lovejoy on 4 February 1999 there is no reference to special circumstances to support the extension of time for the filing of the originating motion.

[36]

The Tribunal observed in its reasons that Mr Lovejoy had difficulty in establishing express evidence of impairment for the purposes of the legislation. Mr Lovejoy purported to put matters before the Tribunal to show that he had been treated for mental illness in his past but that he denied he was mentally ill both in the past and at the time of the relevant events in 1993 involving Myer. On the basis of Mr Lovejoy's own evidence the Tribunal held that the case of Mr Lovejoy proceeded on the basis that Myer and its staff had imputed to Mr Lovejoy the impairment alleged, namely, mental illness. In the course of its reasons the Tribunal set out extracts of the evidence of Mr Lovejoy and also extracts of the particulars filed by him in support of his complaint. The complaint of Mr Lovejoy was that during the period from May until December 1993 he had been excluded from the Myer store and been the subject of assault and general mistreatment by Myer staff, in particular security staff. There was a description of Mr Lovejoy being followed when he was within the store, being asked to leave, being refused entry and having his conduct within the store scrutinised and being made the subject of directions and requests by Myer staff. Specific episodes occurred during May 1993 when Mr Lovejoy attended a fashion parade at the Myer store involving female models. It was alleged in the evidence that Mr Lovejoy had stood behind a catwalk near the entry point to the models' change room. He was told by Myer staff that he was not permitted to stand at that point. The Tribunal having had the opportunity to hear and observe both Mr Lovejoy and Ms Bagot (a Myer security staff member) accepted the evidence of Ms Bagot. The Tribunal held that there was no evidence that Mr Lovejoy was touched or told he was under arrest and it was satisfied that Mr Lovejoy was not treated in a less favourable manner on the grounds of an imputed impairment and was dealt with by Myer without regard to the status of Mr Lovejoy for the purposes of the 1984 Act.

[68]

Mr Kaye emphasised that it was not to the point that Mr Lovejoy's conduct may or may not have emanated from any psychological disorder. The Tribunal decided on the basis of the evidence before it, including the evidence of Mr Lovejoy, that there was no evidence that the conduct of Mr Lovejoy was the result of a psychological disorder. In any event, even if there had been such evidence the Tribunal made a specific finding that Mr Lovejoy was not treated differently on the grounds of his alleged mental illness rather he was treated differently because of the concern of Myer to protect its staff. Mr Kaye emphasised that the finding of the Tribunal as to the basis for the conduct of Myer should be understood in the context of the evidence upon which the finding was based. In addition to the evidence of Ms Summers outlined previously there was her evidence that she expressed concerns to Myer supervising staff about Mr Lovejoy and which in turn led to the calling of the police to the store the arrangement by Myer of extra security for all models. Further, Ms Summers gave evidence that much of her work as a model was for Myer. She also gave evidence that she objected to Mr Lovejoy's unsolicited attention towards her, that she had asked him to leave her alone and that she had complained to police about Mr Lovejoy after he sent pornographic photos of himself to her and had an expectation that they would stop him harassing her. In addition, there was the evidence of Ms Bagot as to the presence and conduct of Mr Lovejoy on the occasion of a parade of lingerie by women models at Myer on 7 May 1993. Ms Bagot gave evidence that the movements of Mr Lovejoy in her view had the potential to cause the models to feel anxious. Then there was the evidence of Mr Part, the general manager of Myer. He gave evidence of his knowledge that Mr Lovejoy had invaded the office of the women's fashion section at Myer and which in turn led to Mr Part withdrawing the licence of Mr Lovejoy to visit the store. Furthermore, in the course of cross-examination, Mr Lovejoy agreed that a Myer officer had told him that he, Mr Lovejoy, frightened some of the female staff at Myer and if Mr Lovejoy annoyed any of those staff again he would be personally escorted out of the store.

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Judgment (73 paragraphs)

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Legislation Cited (1)

Cases Cited (7)