McKeller and Ors v Container Terminal Management Services Ltd and Ors [1999] FCA 1101; (1999) 165 ALR 409.

Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62

Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598

(1) Pursuant to Rule 13.10 of the Federal Magistrates Court Rules the applicant's application to this court be dismissed.

(2) The Applicant shall pay the Respondent's costs of the application including any reserved costs pursuant to Schedule 1 of the Federal Magistrates Court Rules.

(3) I certify pursuant to Rule 21.15 that it is reasonable for the respondent to employ an advocate at the hearing held this day.

1. This is an application by PETER VINTILA (the applicant) in relation to a notice of a termination issued by the Human Rights and Equal Opportunity Commission on 19 July 2001. The respondent to the application had sought and was granted leave to make an oral application before this court to summarily dismiss the application pursuant to Rule 13.10 of the Federal Magistrates Court Rules. The specific application by the respondent this day has been the subject of both written and oral submissions by the respondent. Likewise, the applicant has, by way of reply, sought to rely upon written submissions which he filed with the court on 11 October 2001 and in addition has sought to present further submissions in support of the argument that this application to summarily dismiss should not be granted.

2. When the matter was before me on 26 September 2001, the applicant then indicated that he would rely on what was referred to as complaint number 1 before the Human Rights and Equal Opportunity Commission (HREOC) and that complaint relied upon an alleged breach of section 5 and section 24 of the Disability Discrimination Act (the DDA). Before me today, the applicant has on reconsideration, as I understand it, sought to further rely upon, or at least continue to rely upon, a possible breach of section 29 of the DDA.

3. It is appropriate to consider the nature of the application which was before HREOC which essentially comprised three complaints. They were complaints placed before HREOC by the applicant in a letter dated 7 May 2001. It should be noted, as it was by HREOC, that the applicant had in fact earlier lodged a complaint and it was noted by the commission that a complaint had been earlier lodged relating to the same subject matter and that complaint had been terminated by the delegate of the president on 11 January 2001. The applicant in his letter to the commission, to which I have referred, states in relation to "Complaint 1" that,

"Complaint 1 basically resubmits my earlier complaint - dismissed as `misconceived' by your DDA Office on what appear to be primarily technical grounds. The revised version of the complaint endeavours to make good its previous deficiency."

4. In relation to complaint number 2, in the same letter the applicant states:

"Complaint 2 invites reconsideration of the possibility that The Public Transport RIS is in breach of section 29 of the DDA. Earlier dismissal of this possible complaint appears to rest on a contrived reading of the relationship between legislation and administration (more cavilling?)"

5. In relation to complaint 3, the applicant in the same letter states,

"Complaint 3 proposes to further test the scope of section 24 by suggesting that The Public Transport RIS unfairly restricts the access which people with disabilities enjoy to a common (public) service: the service of regulatory protection."

6. Before the commission, by way of summary, and also before this court, it is fair to say that the applicant has strongly, and I have no doubt sincerely, challenged the Regulation Impact Statement which has been produced on draft disability standards for accessible public transport (the RIS). The applicant has in fact produced a significant volume of material which attacks the RIS and essentially he argues that it does not adequately account for subsidies for the provision of public transport available to people with disabilities and, therefore, represents benefits that would accrue to public transport providers.

7. It is argued by the applicant that the provision of the RIS is such that it will amount to conduct on behalf of the respondent which may constitute a breach of the sections of the DDA, to which I have referred. I understand from what has been conveyed to me today, that by way of background the RIS covers propose new public transport standards which mandate accessibility for people with disabilities. These standards are to become, according to the applicant, disability standards for accessible public transport. In his background attached to his submissions, the applicant states:

"This was initiated by the Australian Transport Council in June of 1995 and a completed draft (based on extensive consultation and enjoying wide consumer support) was endorsed by the Transport Council a year later. The Transport Council then proclaimed the draft Standards `a technically feasible' way of making transport accessible."

8. It is said by the applicant that on 10 June 1996, in order to comply with the federal government's commitment to national regulatory review and competition reform, that the ATC - the Australian Transport Council - referred the draft standard to the Attorney-General for regulatory impact assessment and for the development of what would become the Regulation Impact Statement on draft disability standards for accessible public transport. It is said by the applicant that tenders were called for later in the year and that the applicant was invited to participate in the exercise. In his submissions, the applicant has in fact referred in some detail to the position of the Regulation Impact Statement and has referred to the following statement taken from a guide to regulation, Office of Regulation Review 1997, where it is stated,

"The RIS process is part of the Commonwealth Government's regulation review and reform policy announced by the Prime Minister in 'More Time for Business' (24 March 1997)".

9. In the same document the applicant extracts a further quotation from the guide, namely,

"The Council of Australian Governments (COAG) has agreed that a RIS must be prepared for any regulations that are to be considered by Ministerial Councils or National Standard Setting Bodies."

10. I am told from the bar table that the RIS which is prepared, and which has been the subject of significant criticism by the applicant, is a statement which at least was prepared in part, and is relevant to, legislation before Parliament. The applicant has indicated that he thought that the bill before Parliament which was relevant had been placed before parliament on 27 October 2001. The respondent has indicated that the Disability Discrimination Amendment Bill of 2001 had been introduced according to a news release from the government prior to 4 October 2001. It is asserted from the bar table by counsel for the respondent that the aspect which is the aspect upon which the criticism is made of the RIS by the applicant has not been included in the bill. For the purpose of this application, it is not a matter upon which I can make a decision one way or the other because there is simply not enough information before me in terms of the nature of that bill to ensure that I am satisfied that it does or does not incorporate aspects of the RIS which have been the subject of extensive complaint and criticism by the applicant. It is sufficient, however, for the purpose of my decision, to look at the relevant legislation which is said to have been breached by the respondent, to look at the RIS in terms of its nature and character and then to decide whether in truth and in fact the application should be the subject of summary dismissal.

11. The principles in relation to whether or not the court should exercise its discretion to dismiss, in a summary manner, an application have been referred to in a number of authorities. Those authorities have been usefully referred to by His Honour Weinberg J in the case of McKeller and Ors v Container Terminal Management Services Ltd and Ors [1999] FCA 1101; (1999) 165 ALR 409. In that case, His Honour refers to the principles governing summary dismissal and the discussion of those principles commences at page 415. His Honour there refers to the often quoted passage from the decision by Dixon J, as he then was, in the case of Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62. At page 91 His Honour said,

"A case must be very clear indeed to justify the summary intervention of a court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process."

12. Weinberg J further quotes from the same decision of Dixon J comments which have been approved by Mason CJ and Their Honours Deane and Dawson JJ in the decision of Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598. In that case, at page 602, the court said, quote:

"The power to order summary judgment must be exercised with ´exceptional caution' and ´should never be exercised unless it is clear that there is no real question to be tried."

13. In the present case, reliance has been placed upon sections 5, 24 and 29 of the DDA. It must be remembered that, in considering the definition of those sections, the court must first, in my view, consider those sections which appear under division 2 as creating the potential unlawful activity which is prohibited. Once having considered whether provisions under division 2 may apply, it is then for the court to consider, in deciding whether discrimination has occurred, the earlier provisions of the Act and in the present case, section 5, which provides a definition of what is meant by disability discrimination.

14. It is not appropriate in applications of this kind to reverse the process. It is not appropriate to look at the definition of disability discrimination in section 5 and then assert that conduct of some kind would therefore amount to discrimination. One must look, as in the present case, at the particular sections which are said to be sections where unlawful activity has occurred and sections where the conduct alleged by the respondent attracts the attention of the prohibitions set out in those sections. Section 24 of the Act provides that:

"(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."

"It is unlawful for a person who performs any function or exercises any power under a Commonwealth law or for the purposes of a Commonwealth program, or has any other responsibility for the administration of a Commonwealth law or the conduct of a Commonwealth program, to discriminate against another person on the ground of the other person's disability, or a disability of any of the other person's associates in the performance of that function, the exercise of that power or the fulfilment of that responsibility."

16. In this application before me today, the applicant relying upon his written submissions and other material that is properly before the court, has argued that both provisions may well have been breached by the conduct of the respondent, or at least his department, in the preparation of the RIS which, it is said, is fundamentally flawed in the manner that I have briefly described. It is said that in the alternative this, as I interpret it, could amount to, not necessarily the actual provision of a service by the respondent, but a document which at least refers to a proposal for the provision of a service and a proposal for the provision of a service to disabled persons.

17. I should add for the sake of completeness that no issue is taken before this court as to the standing of the applicant to make this application and no issue is taken as to whether or not the applicant in these circumstances ought to be seen to be making an application of this kind when he is not, on the material before me, and does not claim to be, a person suffering from a disability. Assuming for the purpose of this application in the absence of argument on the issue that there is appropriate standing, and I hasten to add it is an assumption which I make only for this case, it is necessary then to consider what the applicant says in support of his submissions and to do so one needs to look at the RIS. In my view, the Regulation Impact Statement appears to be at least common ground that it is a statement, which as it says, is designed to consider the impact, and in this case, the impact of draft disability standards for accessible public transport.

18. Accepting what the applicant says in relation to the history of the development of this part of government process and accepting that it is undertaken as a consequence of guidelines and not specifically an Act of parliament and even accepting without further information that it might be the subject of a direction by the Prime Minister and cabinet, the document is, by its very nature, a document which contains an assessment of the impact of the standards to which I have referred. As I have indicated, the applicant says that as a consequence of the flaws which he has identified in detail, that standard breaches either section 24 or section 29 of the legislation.

19. The respondent submits that neither section has been contravened and more particularly that the RIS is not capable of constituting conduct or action of a kind that would bring it within the provisions of the Disability Discrimination Act. It is submitted on behalf of the respondent that there must be either the provision of goods or services or the making of facilities available to attract the attention of the section, or indeed, in the alternative, the discrimination must arise in terms and conditions on which the servicer provided. It is submitted the RIS is a wholly executory document prepared within the respondent's department following consultation with affected parties and contains an analysis of costs, benefits and impacts of regulatory proposals and identifies alternative approaches. It is then submitted to Federal Cabinet and the Australian Transport Council for their deliberation.

20. The respondent submits that accordingly that document cannot constitute a service to any person with a disability and nor does it require anything to be done which constitutes a service. In oral submissions counsel for the respondent further rejects the submission by the applicant that a proposal for a provision of a service is sufficient to constitute a service for the purpose of section 24 of the DDA. Further, it is submitted on behalf of the respondent, though reserving its rights to make further submissions depending on the outcome of my judgment this day, that section 29 does not apply as in the circumstances the RIS cannot amount for the purpose of that section to performance of a function or exercise of any power under a Commonwealth law or for the purpose of a Commonwealth program, or indeed, constitutes conduct by a person who has any other responsibility for the administration of a Commonwealth law or conduct of a Commonwealth program.

21. In my view the application before this court and the complaint that was before the Human Rights and Equal Opportunity Commission, is misconceived. The application at all times, in my view, was an application based upon, no doubt, genuinely and sincerely held beliefs that the RIS was flawed and flawed in such a way that it resulted in recommendations, or at least as assessment, which could be said, if the criticism is correct, to constitute a form of discrimination by persons suffering from a disability. It is not my task to make an assessment of the RIS in that sense, nor is it the task, in my view, of the Human Rights and Equal Opportunity Commission to make assessments of a document of this kind.

22. In my view an RIS cannot possibly constitute the provision of a service for the purpose of section 24 of the DDA. In my view it is further not correct to suggest that a proposal set out in a document which is no more than an impact statement, or indeed if one uses the expression, "a cost benefit analysis," can in any way constitute conduct which would attract the attention of section 24 of the DDA. It is, as I have indicated, a document that can be characterised as no doubt a significant document for the proper consideration of cabinet which may reject or accept it, which may decide to introduce a bill into parliament which may decide to embrace part, all or nothing which is set out in the RIS. It is then for parliament to consider whether the bill should be enacted. It may then be a matter to consider the legislation in terms of the way in which services pursuant to that legislation are provided to determine whether there has been in truth and in fact conduct which constitutes a breach of the DDA.

23. It will be seen, however, from that chronology of events that there is a significant number of steps to be undertaken before, in my view, there can be any suggestion that the provisions of the DDA would apply in circumstances where even if it is accepted there is some form of discrimination, that the sections of the Act prohibiting the forms of discrimination to which I have referred, would be applied.

24. Likewise, in my view, section 29 cannot be a section which applies to conduct of this kind. It is common ground that the RIS, whilst being the subject of criticism by the applicant in the sense of, amongst other things, not adequately accounting for subsidies for the provision of public transport available to people with disabilities and misrepresenting therefore the benefits that accrue to the public transport providers it is my view that document in itself does not constitute conduct of a kind which would attract the attention of section 29. A Regulation Impact Statement is just that, it is not in my view, conduct which would constitute conduct by a person performing a function or exercise in power under a Commonwealth law and in this case certainly does constitute conduct for the purpose of a Commonwealth program, or as I have indicated, conduct by a person who has other responsibility for the administration of a Commonwealth law or the conduct of a Commonwealth program. It is an impact statement prepared by a department for consideration by cabinet and as such in my view, should not and cannot form conduct of a kind described in section 29 of the DDA.

25. I should add for the sake of completeness that on the material before me it is not clear as to what basis it could be alleged in any event discrimination may have occurred pursuant to section 29 in the present case, other than there is some criticism by this applicant of the content of the document about which he has formed an obviously very strong view and about which he has significant and genuinely held concerns.

26. Applying the appropriate law to which I have referred in relation to summary dismissal, it is therefore my view that this application does not have merit, that it is in the legal sense, frivolous, and cannot be sustained and does not even constitute an arguable case under, and I emphasise this, the relevant law which I am bound to apply.

27. Accordingly, it is appropriate in the circumstances that I accede to the respondent's application and do so and make the following orders:

(1) Pursuant to Rule 13.10 of the Federal Magistrates Court Rules the applicant's application to this court be dismissed.

(2) The Applicant shall pay the Respondent's costs of the application including any reserved costs pursuant to Schedule 1 of the Federal Magistrates Court Rules.

(3) I certify pursuant to Rule 21.15 that it is reasonable for the respondent to employ an advocate at the hearing held this day.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of McInnis FM