Issues on the application
23 There are two matters to be addressed before considering the substance of the respondents' application.
24 The first relates to my involvement in the earlier proceeding. In the earlier proceeding I made serious credit findings against the applicant. In those circumstances, a question arose as to whether I should disqualify myself from hearing the present application on the ground of apprehended bias. The short answer to that question is no, because the applicant did not object to me sitting or ask me to disqualify myself and, in the circumstances, that was the decisive consideration. The circumstances to which I refer are that, although unrepresented, the applicant had full knowledge of the facts, namely, my involvement in the earlier proceeding and the nature of the present application. In addition, he had time for mature reflection, or even to obtain legal advice, as I raised the matter with him on a number of occasions.
25 An alternative ground for the conclusion that I should not disqualify myself from hearing the present application on the ground of apparent bias is this. The test for apparent bias is well-known and it is "whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide": Johnson v Johnson (2000) 201 CLR 488 at 492 [11] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. In this case, if there is apparent bias, it takes the form of prejudgment. That form of bias was considered by the High Court in Livesey v The New South Wales Bar Association (1983) 151 CLR 288. In assessing that form of apparent bias in this case, the nature of the respondents' application is important. The respondents' application is not one in which I was called upon to make findings as to credit or, indeed, to make any findings of fact. The applicant's allegations of fact may be accepted for the purposes of the respondents' application. The questions raised by the respondents' application are, in substance, questions of law, and, having regard to all the circumstances, I do not think it can be said that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the question I am required to decide: Sydney Refractive Surgery Centre Pty Ltd v Federal Commissioner of Taxation (2007) 68 ATR 19; Commonwealth Bank of Australia v Taylor [2008] VSC 3.
26 The second matter concerns the effect of the sequestration order made on 13 August 2008 on the present proceeding. The relevant provisions of the Bankruptcy Act are as follows:
60 Stay of legal proceedings
…
(2) An action commenced by a person who subsequently becomes a bankrupt is, upon his or her becoming a bankrupt, stayed until the trustee makes election, in writing, to prosecute or discontinue the action.
(3) If the trustee does not make such an election within 28 days after notice of the action is served upon him or her by a defendant or other party to the action, he or she shall be deemed to have abandoned the action.
(4) Notwithstanding anything contained in this section, a bankrupt may continue, in his or her own name, an action commenced by him or her before he or she became a bankrupt in respect of:
(a) any personal injury or wrong done to the bankrupt, his or her spouse or a member of his or her family; or
(b) the death of his or her spouse or a member of his or her family.
27 The applicant submitted that the present proceeding was not stayed by operation of s 60(2) because the proceeding is an action "in respect of a personal injury or wrong done" to him within s 60(4). The applicant was not represented and he was not able to make detailed submissions in support of that contention. The respondents accepted the proceeding fell within s 60(4)(a) as far as it involved a claim for unlawful discrimination. They did not address the issue any further than that, although in the course of their submissions on the substantive application, they submitted that in so far as the proceeding involves other claims, the proceeding is stayed by operation of s 60(2) of the Bankruptcy Act.
28 In Cox v Journeaux (No 2) (1935) 52 CLR 713, Dixon J (as his Honour then was) considered the meaning of personal injury or wrong done to the bankrupt within s 63(3) of the Bankruptcy Act 1924-1933 (Cth). His Honour applied Wilson v United Counties Bank Ltd [1920] AC 102 and described (at 721) the relevant test in the following terms:
The test appears to be whether the damages or part of them are to be estimated by immediate reference to pain felt by the bankrupt in respect of his mind, body or character and without reference to his rights of property.
29 The applicant's claim for unlawful discrimination seeks damages for physical and mental injury to the applicant and appears to satisfy the relevant test and therefore come within s 60(4)(a). On the face of it, as the same damage is claimed in relation to the other claims they also would come within s 60(4), but I have to say that I have not had the benefit of the type of submissions which would enable me to feel confident in reaching that conclusion. Furthermore, there is another point; there seems to be a prior question in relation to the other claims which was not addressed in submissions, namely, whether it is reasonably arguable that the loss and damage claimed is the type of loss and damage which can be recovered in respect of those causes of action.
30 In the result, it seems to me that the claim based on unlawful discrimination is within s 60(4)(a); the other claims may or may not be but, in any event, for reasons I will give they must be dismissed because the pursuit of them constitutes an abuse of process.
31 I turn now to the respondents' application and I start with the other claims.
32 Save and except for the alleged breaches of the deed of settlement (see the earlier judgment at [15]), all the causes of action in the present proceeding are different from those advanced in the earlier proceeding. Nevertheless, all the causes of action are based on the conduct of the second respondent acting for the first respondent on 27 March 2006 and its aftermath. The doctrine of res judicata may apply in relation to the cause of action in the present proceeding based on breaches of the deed of settlement but it does not apply to the other causes of action in the present proceeding. The doctrine of issue estoppel in the strict sense may apply to those causes of action, although it is difficult to be at all certain because of the lack of coherence in the applicant's pleadings in the present proceeding. The extended doctrine of issue estoppel as articulated in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 ("Anshun estoppel") certainly applies in relation to all of the other claims and there is no reason they could not have been brought in the earlier proceeding. In the circumstances, the pursuit of the other claims is an abuse of process.
33 I turn now to consider the claim for unlawful discrimination.
34 In his amended statement of claim, the applicant alleges breaches or contraventions by the respondents of ss 5, 6, 22 and 24 of the DD Act. Section 22(1) plainly does not apply because, on any view, the alleged discrimination is not of a type which falls within the terms of that subsection. Subsection (2) provides:
It is unlawful for an educational authority to discriminate against a student on the ground of the student's disability or a disability of any of the student's associates:
(a) by denying the student access, or limiting the student's access, to any benefit provided by the educational authority; or
(b) by expelling the student; or
(c) by subjecting the student to any other detriment.
35 I note that there is no allegation in the statement of claim to the effect that the applicant was a student of the first respondent. Section 24 of the DD Act provides as follows:
24 Goods, services and facilities
(1) It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's disability or a disability of any of that other person's associates:
(a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or
(b) in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or
(c) in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.
36 The applicant alleges that he was refused entry to the Hypothetical in circumstances where he had presented himself at the entrance of the venue and offered to pay for a ticket or tickets. The thrust of his allegations as set out in his amended statement of claim is that he was refused entry to the Hypothetical because he was considered to be a "troublemaker". There is no clear allegation in the amended statement of claim or in any of the affidavits filed by the applicant in the proceeding (and he has filed five affidavits) that he was refused access to either the venue or a toilet at the venue because of a disability.
37 Sections 5 and 6 of the DD Act contain definitions of disability discrimination and are in the following terms:
5 Disability discrimination
(1) For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.
(2) For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability.
6 Indirect disability discrimination
For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition:
(a) with which a substantially higher proportion of persons without the disability comply or are able to comply; and
(b) which is not reasonable having regard to the circumstances of the case; and
(c) with which the aggrieved person does not or is not able to comply.
38 Section 10 of the DD Act provides that:
If:
(a) an act is done for 2 or more reasons; and
(b) one of the reasons is the disability of a person (whether or not it is the dominant or a substantial reason for doing the act);
then, for the purposes of this Act, the act is taken to be done for that reason.
39 The term "disability" is defined in s 4 of the DD Act in the following terms:
disability, in relation to a person, means:
(a) total or partial loss of the person's bodily or mental functions; or
(b) total or partial loss of a part of the body; or
(c) the presence in the body of organisms causing disease or illness; or
(d) the presence in the body of organisms capable of causing disease or illness; or
(e) a malfunction, malformation or disfigurement of a part of the person's body; or
(f) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or
(g) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;
and includes a disability that:
(h) presently exists; or
(i) previously existed but no longer exists; or
(j) may exist in the future; or
(k) is imputed to a person.
40 This claim for unlawful discrimination is not a claim which could have been raised in the earlier proceeding because the earlier proceeding were heard on 5 and 6 October 2006 and the complaint made to the Commission was not terminated until 16 October 2006. The right to make an application to the Federal Court or the Federal Magistrates Court alleging unlawful discrimination by one or more of the respondents to a complaint only arises when the complaint has been terminated by the President, and the President has given notice of the termination: HREOC Act s 46PO(1). Subsections (3) and (4) of s 46PO should also be noted; they provide respectively that there must be a correlation between the unlawful discrimination alleged in the application and the unlawful discrimination alleged in the complaint, and for the type of orders a court may make if satisfied there has been unlawful discrimination.
41 "Unlawful discrimination" is defined in s 3 of the HREOC Act to mean any "acts, omissions or practices" that are unlawful under certain pieces of legislation, including Pt 2 of the DD Act.
42 There are two independent grounds upon which I conclude that the pursuit of the claim for unlawful discrimination is an abuse of process.
43 First, in my opinion, to relitigate the events of 27 March 2006 is an abuse of process and the pursuit of the claim for unlawful discrimination would involve a relitigation of the events of 27 March 2006. The Court has a wide jurisdiction to protect a party from an abuse of process constituted by an attempt to relitigate a case already disposed of: Walton v Gardiner (1993) 177 CLR 378 at 392-393 per Mason CJ, Deane and Dawson JJ. It seems clear on the authorities that a proceeding may constitute an abuse of process because it involves an attempt to relitigate a dispute already judicially determined even though none of the doctrines of res judicata, issue estoppel in the strict sense or an Anshun estoppel are made out: Coffey v Secretary, Department of Social Security (1999) 86 FCR 434 at 443 [25]; Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 at [58]-[70] per French J; SZAJB v Minister for Immigration and Citizenship (2008) 168 FCR 410 at 423 [37]-[39] per French J (with whom Tracey J agreed at 437 [114]); Brock v Minister for Home Affairs (2008) 170 FCR 434 at 447 [74] per Lindgren and Tracey JJ. The claim for unlawful discrimination represents an attempt to relitigate the events of 27 March 2006 and is an abuse of process. I am mindful of the fact that, as events transpired, the claim for unlawful discrimination could not have been brought in the earlier proceeding, but that does not dissuade me from reaching the conclusion that I have expressed. The fact is that it was the applicant who decided to institute the earlier proceeding the day after the relevant events, to lodge his complaint with the Commission about three weeks after the relevant events, and to wait until 14 July 2006 before advising the Court that he had lodged a complaint with the Commission.
44 The other independent ground for dismissing the claim for unlawful discrimination is that, in my opinion, the applicant has no reasonable prospect of successfully prosecuting the claim. There is no allegation of a disability in the statement of claim, nor is there an allegation that the applicant was treated less favourably than a person without a disability. The fact that the applicant was refused entry to the Hypothetical because he was considered to be a troublemaker does not give rise to unlawful discrimination within s 22 and s 24 of the DD Act.
45 This is not a case in which it would be appropriate to give the applicant leave to re-plead because in all the material filed by the applicant there is no suggestion that the applicant has a reasonably arguable case of unlawful discrimination.
46 In my opinion, the proceeding must be dismissed.