(1) The Acting Disability Discrimination Commissioner be granted leave to appear as amicus curiae in the proceedings and to make oral submissions.
(2) The Applicant is to file and serve any further submissions by 30 April 2008.
(3) The Acting Disability Discrimination Commissioner is to file a written submission in relation to the oral submissions sought to be made in these proceedings by 30 April 2008.
(4) The application is listed for further hearing on Wednesday 14 May 2008 at 10:15am before Federal Magistrate Scarlett in Court 7B, Level 7, John Maddison Tower, 88 Goulburn Street, Sydney NSW.
(5) Costs of today are reserved.
(6) The Acting Disability Discrimination Commissioner file and serve a Notice of Address for Service by 24 March 2008.
[2]
The Acting Disability Discrimination Commissioner seeks leave to appear as Amicus Curiae in these proceedings, by means of a Notice of Motion filed on 6th February 2008. The Notice of Motion is supported by an affidavit of the Acting Disability Discrimination Commissioner, Mr Innes, affirmed on 4th February 2008. The Commissioner seeks leave to make submissions orally and in writing in relation to legal issues arising out of these proceedings.
As was said by Collier J in Access for All Alliance (Hervey Bay) Inc v Hervey Bay City Council[1], the Court should exercise caution in considering applications made by those who seek to be heard as amicus curiae. Section 46PV(1) of the Human Rights and Equal Opportunity Commission Act 1986 to which I shall refer as 'the HREOC Act) gives the Commissioner the function of assisting the Court as amicus curiae in:
(a) proceedings in which the Commissioner, as a special-purpose Commissioner" thinks that the orders sought, or likely to be sought, may affect to a significant extent the human rights of persons who are not parties to the proceedings;
(b) proceedings that, in the opinion of the special-purpose Commissioner, have significant implications for the administration of the relevant Act or Acts; and
(c) proceedings that involve special circumstances that satisfy the special-purpose Commissioner that it would be in the public interest for the Commissioner to assist the Court as amicus curiae.
The function is enlivened by the formation of a relevant view or opinion by the Commissioner (s.46PV(1)). Nevertheless, the function of assisting the Court as amicus curiae may only be exercised with the leave of the Court (s.46PV(2)). If the Court grants leave to a special-purpose Commissioner to assist the Court in a proceedings, the special-purpose Commissioner must file a notice of address for service and serve a sealed copy on each party to the proceeding (Federal Magistrate Court Rules 2001, rule 41.05).
In this case, the special-purpose Commissioner has formed the view that all three of the conditions under s.46PV(1) are satisfied and deposes to this effect in his affidavit at [5] - [7]. His opinion is that the legal issues raised in these proceedings will affect the rights not only of the applicant but, in particular, the application for summary dismissal of the applicant's claim raises these issues for consideration:
(a) the question of whether alleged discriminatory terms or conditions attaching to an airline ticket are subject to the Disability Discrimination Act 1992 (Cth); and
(b) the interpretation of s.46PV(3) of the HREOC Act and the degree of similarity required between a person's complaint terminated by the Human rights and Equal Opportunity Commission and that person's application to the court.
The Special-purpose Commissioner considers that the outcome on the latter issue may significantly impact on complainants bringing discrimination proceedings under Part IIB, Division 2 of the HREOC Act.
The special-purpose Commissioner deposes that the substantive proceedings raise a number of other issues for consideration.
The applicant does not oppose the Commissioner being granted leave to appear as amicus curiae. The respondent opposes the grant of leave for a number of reasons, including:
(a) On 11th May 2007 HREOC terminated the applicant's complaint on the grounds that the issues raised did not amount to unlawful discrimination, were lacking in substance and/or were lodged more than 12 months after the alleged unlawful discrimination took place. There is an apparent inconsistency between the position of the President of HREOC and the position of the special-purpose Commissioner regarding the complaint, because the special-purpose Commissioner is not seeking to intervene to uphold the President's decision;
(b) The involvement of the special-purpose Commissioner will significantly the interlocutory proceedings, which were intended to be heard within a day;
(c) The special-purpose Commissioner's interest in the subject of litigation appears to be no more than a wish to have the law declared in particular terms;
(d) The special-purpose Commissioner has no particular knowledge and expertise relevant to the question of the formation of a contract for aviation travel;
(e) The nature of the applicant's claim does not raise any issue of general principle and public importance that may affect, to a significant extent, persons other than the parties;
(f) The special-purpose Commissioner's submissions are not limited to points of legal principle but seek to make submissions about factual matters that are not established;
(g) The special-purpose Commissioner's submission repeats matters adequately canvassed by the parties; and
(h) The special-purpose Commissioner's involvement will significantly lengthen proceedings.
Both counsel for the Acting Disability Discrimination Commissioner and counsel for the respondent refer the Court to the decision of Levy v State of Victoria.[2] In that decision, Brennan CJ stated:
The footing on which an amicus curiae is heard is that that person is willing to offer the Court a submission on law or relevant fact which will assist the Court in a way in which the Court would not otherwise have been assisted...
It is not possible to identify in advance the situations in which the Court will be assisted by submissions that will or will not or may not be presented by one of the parties nor to identify the requisite capacities of an amicus who is willing to offer assistance. All that can be said is that an amicus will be heard when the Court is of the opinion that it will be significantly assisted thereby, provided that any cost to the parties or any delay consequent on agreeing to hear the amicus is not disproportionate to the assistance that is expected.[3]
In Access for All Alliance (Hervey Bay) Inc v Hervey Bay City Council (supra), Collier J followed the decision in Levy v State of Victoria and held:
The amicus curiae function conferred on the special purpose Commissioners under the HREOC Act, in my view indicates acknowledgement by Parliament that the Court can obtain useful assistance from the Commissioners as statutory amicus curiae. In the HREOC Act, Parliament also recognised the position, expertise and knowledge of the Commissioners, and I note the duties and functions of the Commission as set in s 10A and s 11 of the HREOC Act to that effect.[4]
Whilst her Honour's decision is not binding upon this Court, it is, however, persuasive, and I propose to follow it.
I am mindful of the concerns of the respondent that the proceedings could be significantly lengthened, but I consider that it is incumbent upon the court to ensure that the proceedings are not unnecessarily prolonged. Counsel for the Acting Disability Discrimination Commissioner has informed me that the proposed submissions on behalf of the Commissioner will not be lengthy, and I will bear that in mind.
The very application by the Commissioner has already added to the length of the proceedings, but I am able to make a full day available to the parties on 14th May 2008, when the submissions on the interlocutory application can be taken. I do not consider that an adjournment for a period of less than five weeks is an unreasonable period of time.
I grant the Acting Disability Discrimination Commissioner leave to appear as amicus curiae in these proceedings and to make oral submissions.
[3]
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Scarlett FM