Victorian Civil and Administrative Tribunal|2007-08-22

Towie v State of Victoria (Anti Discrimination) [2007] VCAT 1489 (22 August 2007)

Anti-discrimination - application to strike-out/dismiss complaint - impairment discrimination claim in respect of Magistrates' Court staff - whether an immunity applies - whether State vicariously liable or liable as service provider - Equal Opportunity Act 1995 ss4, 42 and 102; Magistrates' Court Act 1989 ss14, 17 and 24;

Towie v State of Victoria (Anti Discrimination) [2007] VCAT 1489

Pursuant to section 75 of the Victorian Civil and Administrative Tribunal Act 1998 this complaint is dismissed.
The Respondent's costs are reserved. The Respondent has liberty to apply for those costs on reasonable notice to the Complainant and the Tribunal.

I have dismissed the complaint. I have given liberty to the Respondent (the State) to apply for costs.

The complaint and the application to strike-out or dismiss it

In August 2006, Dr Towie lodged with the Victorian Equal Opportunity and Human Rights Commission (the Commission) a complaint under the Equal Opportunity Act 1995 (the EO Act). As clarified by his submissions on the strike-out application, Dr Towie's complaint is against the State in its capacity of the Department of Justice. The complaint claims impairment discrimination in the provision of goods or services in breach of the EO Act.
The Commission referred the complaint to conciliation. Conciliation was unsuccessful. As was his right, Dr Towie required the Commission to refer the complaint to VCAT. It did so in January 2007.
The State then applied to have the complaint struck out or dismissed under s75 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act). It did so on all the grounds mentioned in the section, namely, that the complaint was frivolous, vexatious, misconceived, lacking in substance or an abuse of process. The principles which the Tribunal applies when considering applications of this kind are relevantly these.
The section permits the summary termination of a proceeding - here, a complaint. The Tribunal should be cautious before summarily terminating a complaint and so depriving the litigant of having the case heard in the ordinary course. It should only do so where, for a reason mentioned in the section, it is satisfied that the case is manifestly hopeless, undoubtedly untenable, wholly unsustainable in fact or law, or doomed to fail.
I first summarise the claim. I then deal with the parties' submissions and state my conclusions.

Dr Towie's claim, as clarified in his particulars of complaint and submissions, is this. The State (through the Department of Justice) failed to accommodate his severe high-frequency hearing impairment by not providing him with a graphic equaliser and headphones. I call this equipment collectively 'the graphic equaliser'. In 2005, Dr Towie was a party in a case in the Magistrates' Court. He says that, before any hearing occurred, he wrote to the Department of Justice requesting a graphic equaliser to be provided to him at any hearing. That equipment would have enabled him to understand and participate effectively in the hearing. He says that he made a verbal request to the staff of the Department of Justice at the Magistrates' Court, again asking for the graphic equaliser. It is unclear to which Court this verbal request was made, but, for the purposes of this application, I assume that the request was made both to the Broadmeadows Magistrates' Court and the Melbourne Magistrates' Court. He says that the request was made 'on the day of hearing'. He says that the hearing in his case occurred at the Magistrates' Court at Broadmeadows in February, May and July 2005, and at the Melbourne Magistrates' Court in October 2005. The graphic equaliser was not provided to him at any of those hearings. He says that the hearings were prolonged because material had to be repeated to him because he was unable, or unable without difficulty, to follow what was said. The prolonging of each hearing meant, in turn, that he incurred more fees for legal representation and was absent from his work for longer. He says that he was so upset by what happened that he was unable effectively to present his case. He claims that he has suffered financial loss, embarrassment and humiliation.
The State's submission is (and Dr Towie does not deny) that he was legally represented at the Magistrates' Court hearings.

Dr Towie does not particularise to whom his written and verbal requests for the graphic equaliser were made. The State's submissions assume (and Dr Towie does not deny) that the requests were dealt with by staff of the Department of Justice stationed at the Broadmeadows Magistrates' Court and the Melbourne Magistrates' Court, occupying positions either as principal registrar, registrar or deputy registrar of the Court. The State submits that these court staff have an immunity from claims under the EO Act, because of the effect of the Magistrates' Court Act 1989 (the Magistrates' Court Act). A contrary submission is made for Dr Towie.
Section 17(1) of the Magistrates' Court Act provides -

(1) For the purposes of this Act and to assist in the administration of the Court there are to be employed under Part 3 of the Public Administration Act 2004 -

(b) as many registrars and deputy registrars as are necessary.

The effect of s17(2) to (4) of that Act is this. The principal registrar may delegate a function or power to a registrar or classes of registrars. The principal registrar, the registrars and deputy registrars have the powers, functions and duties provided by the Act, and the Regulations and Rules made under the Act. Subject to certain limitations, a deputy registrar may exercise a power or perform a function of a registrar.
Section 24 provides -

The principal registrar, a registrar and a deputy registrar have, in the performance of their duties as such, the same protection and immunity as a magistrate has in the performance of his or her duties as a magistrate.

The effect of s14 of the Act is that, in the performance of his or her duties, a magistrate has the same protection and immunity as a Judge of the Supreme Court has in the performance of his or her duties and a Judge. The combined effect of ss24 and 14 is, then, that the principal registrar, a registrar and a deputy registrar have, in the performance of their duties as principal registrar, registrar or deputy registrar, the same protection and immunity as a Judge of the Supreme Court has in the performance of his or her duties as a Judge. It was submitted for Dr Towie that the immunity given to the principal registrar, a registrar or a deputy registrar is limited only to those duties in respect of which a Supreme Court Judge has protection or immunity - that is, to duties relating to the hearing and determination of proceedings. I do not agree. Correctly interpreted, the effect of s24 is that the principal registrar, a registrar and a deputy registrar have, in respect of their duties in that position, the same degree of protection and immunity as a Supreme Court Judge has in respect of his or her duties. The protection or immunity relates to all the duties of the principal registrar, registrar or deputy registrar, not only to some of them. But the protection and immunity only applies to the person when performing the duties of the relevant office - not when acting in some private or unofficial capacity.
The protection or immunity which a Supreme Court Judge has in performing his or her duty as a Judge is protection from civil suit in relation to hearing or determining a case in respect of which the court has general authority and where the Judge has a bonafide belief that there is jurisdiction to hear and determine the matter. The protection or immunity, then, is from civil suit.
The rationale for the protection and immunity given to a Supreme Court Judge applies equally to the protection and immunity given to these court staff when carrying out their official duties. It is given so that official duties can be carried out with independence and without fear[1]. I cannot see why the same protection and immunity should not apply to these court staff in respect of claims under the EO Act, and for the same rationale[2].
Since under s24 of the Magistrates' Court Act the relevant court staff have a protection or immunity from claims under the EO Act, those staff cannot breach the EO Act, and the State cannot be vicariously liable for such a breach.

There is no doubt that the State can be a respondent to a claim under the EO Act. 'Person' in that Act is defined inclusively and not exhaustively. Section 38 of the Interpretation of Legislation Act 1984 (Vic) defines person to include a body politic[3].
It is submitted on behalf of Dr Towie that, read broadly and in a non-technical way, the claim is that the State provides the service of access to justice or, at least, access to the court process. In providing this service, it has discriminated against Dr Towie by not providing him with the equipment that would enable him to participate in his Magistrates' Court hearing, to the same extent as other litigants.
The State argues, first, that the complaint does not justify this reading. I do not agree. On a strike-out application such as this, one must take the complainant's case at its highest, and be careful not to shut out claims which are capable of falling within the EO Act.
The State next argues that, just as the immunity applied to the relevant court staff, it also applies to those 'higher up the tree'. I have already concluded that the State cannot be vicariously liable under the EO Act where the relevant court staff could not have breached it.
Does the State itself provide a service in the course of the provision of which prohibited discrimination against Dr Towie occurred? This claim would not be covered by the immunity provisions in s24 of the Magistrates' Court Act, and is not a claim against the State based on vicarious liability. However, it seems to me that the claim is misconceived.
First, the 'service' is so vague, undefined and non-specific that in my view it is not a service at all. It would, presumably, vary according to the needs of the individual who wants access to the court process. For the person with an impairment who needs special equipment to effectively participate in the hearing process, the service would relate to the provision of equipment. For the non English-speaking person who needs an interpreter to help him or her effectively participate in the hearing process, it would relate to the provision of interpreters. Because of this variation, one cannot distinguish between the service and its terms.
Second, the submission tries, in my view, to turn an outcome into a service. The outcome which Dr Towie seeks is, presumably, access to a service (the court process) to which he claims access was denied to him in a way that is prohibited by the EO Act. To my mind, he is really seeking the establishment of a new service rather than making a claim in relation to an existing one.
Third, when viewed in the way I have mentioned, what Dr Towie seeks is more in the nature of a policy change than a remedy under the EO Act. This becomes clearer when one considers that the people to whom the suggested 'service' is provided access to justice or access to the court process is something which a government might seek to provide to the community in general, and for its general benefit, rather than to a specific individual or group.
Fourth, there is a difficulty concerning who provides the 'service'. The courts themselves regulate their own hearing and determination processes. While the State might fund the provision of relevant premises and equipment, what is provided for a litigant at a court hearing is up to the court. But the Judge who presides at the hearing has immunity with respect to the conduct of the hearing and the determination of the case.
For these reasons, the claim is, in my view, doomed to fail.

I make brief comment on some other issues raised by the State. I would not have struck out the complaint for being inadequately particularised. It is clear enough from the complaint what Dr Towie claims. If the complaint is inadequately particularised, this can be cured by an order or direction for further particulars of complaint.
This case is not an attempt to re-litigate the case of Towie v State of Victoria & ors, decided by Vice President Judge Bowman in 2002. It relates to different circumstances. However, the same immunity point raised in that case was raised in this. While the Tribunal is not bound by its previous decisions, principles of comity and consistency of decision-making should apply, and I would only depart from a decision which was clearly in point if I thought that it was clearly wrong. In my view, the 2002 Towie case is so clearly correct that the present claim should not reasonably have been made.
There are a number of matters which point to the complaint being an abuse of process. According to the complaint, there were at least four Magistrates' Court hearings in Dr Towie's case. The complaint does not assert that, at any of those hearings, Dr Towie requested the magistrate to provide him with the equipment he needed. In fact, the complaint does not claim that Dr Towie was unable to participate in these hearings at all - only that, because of the need for repetition, the hearings were lengthened. It also appears that he was legally represented at at least some of these hearings and, presumably, any request to the magistrate could have been made on his behalf by his legal representative. There is no suggestion in the material put forward by Dr Towie that he appealed, or applied for a review or re-hearing, in respect of his case. Dr Towie lodged his complaint some eighteen months after the date of the first Magistrates' Court hearing of his case, and some ten months after the date of the last hearing. There is no explanation for the delay in the material he puts forward.

In my view, the claims in this complaint cannot be cured by amendment and should be dismissed. I make some final comments.
First, my decision should not be taken to mean that one can never bring a claim of breach of the EO Act against the principal registrar or a registrar or deputy registrar of the Magistrates' Court. The immunity under s24 of the Magistrates' Court Act does not apply to acts done in an unofficial or private capacity or outside the duties conferred by that Act, or the Rules and Regulations made under it, on those staff.
Second, my decision illustrates what has been said in a number of cases about the scope of the EO Act. The scope of the Act is to some extent limited and the concept of discrimination is to some extent artificial.
Third, quite apart from what the EO Act may or may not cover, it seems clear that the justice system (of which the processes of the courts are a part) should be as accessible as possible to those who wish to use it, and particularly to those who need special facilities (such as interpreters or equipment) to access it. I would urge the Department to consider what policies might best achieve this aim. As far as specialised equipment for people with disabilities is concerned, there might (for example) be a set of arrangements with providers of that equipment, or a central 'equipment bank' that could be used when occasion requires, or special funding made available. A hearing is already a stressful process, without the added stress of difficulty in participating in or understanding what is said, where those difficulties might be lessened by appropriate equipment or other assistance. I also note that the recently enacted Charter of Human Rights and Responsibilities (Vic) may, when it is fully in operation, have some bearing on these issues.

[1] See for example Sirros v Moore [1975] 1 Q.B. 118 at 132 (per Denning M.R.)

[2] See for example Towie v State of Victoria & ors. [2002] VCAT 1395; re East; Ex parte Nguyen (1998) 196 ALR 354; see generally Rabling v Supreme Court of Victoria [1999] VCAT 647; Visnjovski v Department of Justice & ors [2000] VCAT 1892

[3] See also Crown Proceedings Act 1958 (Vic)

Civil and Administrative Tribunal Act 1998

Administration Act 2004

Towie v State of Victoria

At a glance

Court

Decision date

Source

Judgment (20 paragraphs)

Towie v State of Victoria (Anti Discrimination) [2007] VCAT 1489 (22 August 2007)

Parties

Legislation Cited (2)

Cases Cited (1)