Yo Han Chung v University of Sydney & Ors

REASONS FOR JUDGMENT 1 This is what purports to be an appeal from a decision of Federal Magistrate Driver who, on 20 September 2001, summarily dismissed the appellant's complaint of discrimination on the ground of race and on the ground of disability. That dismissal was pursuant to rule 13.10 of the Federal Magistrate Court Rules which provides: "The court may order that a proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding, if it appears to the court that in relation to the proceeding or claim for relief: (a) no reasonable cause of action is disclosed; or (b) the proceeding is frivolous or vexatious; or (c) the proceeding is an abuse of the process of the Court." 2 I should say at the outset that the appeal as filed is incompetent. Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) requires that any appeal from an interlocutory decision can only be entertained after leave to appeal has been granted. 3 Mr Chung has not sought leave to appeal. I have proceeded to address the matter as though there was an application for leave to appeal to determine whether, in those circumstances, it would be appropriate to grant leave to appeal. 4 Mr Chung appeared for himself both before Federal Magistrate Driver and before the Federal Court. The question of legal representation had been raised with him by Madgwick J on the occasion of the first directions hearing of an application which Mr Chung filed in the Federal Court, which was transferred to the Federal Magistrates Court. On that occasion Mr Chung indicated that he did not wish to have legal representation. 5 That lack may tend to explain the apparent inability of Mr Chung to understand what has to be demonstrated concerning an application for leave to appeal, or an appeal, from the decision of the Federal Magistrate in issue in this case. The submissions that Mr Chung made to this court display a fixation on his belief that the University of Sydney had unlawfully discriminated against him on the basis of disability and race. His focus was exclusively on his complaints about what the university had done in relation to its dealings with him in the course of his studies of the Bachelor of Applied Science (Physiotherapy) Course. 6 Counsel for the University of Sydney has supplied an extensive chronology cross-referenced to the actual documents in the appeal book, which is very useful. It is sufficient for present purposes to point out that Mr Chung enrolled in the Bachelor of Applied Science (Physiotherapy) Course in 1993 at the University of Sydney. By February 2000 the Faculty of Health Sciences had deemed that Mr Chung had not made satisfactory progress towards fulfilling the requirements for his physiotherapy degree, and he was asked to show cause, in accordance with the university policy and rules, why he should be allowed to re-enrol. 7 On 7 March 2000 Mr Chung was excluded from the course, seven years after he had enrolled in it, and at a stage when he had completed approximately 60 per cent of the course. In the course of dealings between Mr Chung and officers of the university, psychiatric opinion established convincingly that Mr Chung suffers from depression, sometimes described as major depression and anxiety. On other occasions it is said by psychiatrists that Mr Chung has a mood disorder. 8 In January 1999 a psychiatrist, Dr Teoh, diagnosed a mood disorder and an inability to cope with exams. After receiving a certificate from Dr Teoh, the university agreed to a reduced work load for Mr Chung on 23 February 1999. On 22 June 1999 Mr Chung failed to attend an examination in the subject Cardiopulmonary Physiotherapy II. On 30 June 1999 he made an application for consideration in relation to that examination, and in a letter of 2 July 1999 (which Mr Chung regards as quite important) Lyndall Maxwell, described in the letter as a Clinical Academic, wrote to Mr Chung in the following terms: "I am writing to confirm our conversation earlier this week. As you have not undertaken the Cardiopulmonary II examination this semester you are not eligible to commence your clinical placement on 12th July. Your progress will be reviewed once you have completed your academic requirements." 9 There is another letter, not mentioned in the chronology, but which I regard as quite important in the context of the history of the matter. Sylvia Black, a resource officer of the Cumberland Student Guild of the University, wrote a letter dated 5 July 1999 to the Executive Assistant to the Dean, Faculty of Health Sciences of the University of Sydney regarding Mr Chung. I set out the body of that letter: "Mr Chung saw me this morning to air grievances he held against decisions by various academics within the School of Physiotherapy where he is enrolled in the undergraduate program. He claimed certain lecturers had misled him about undertakings made to him and to his doctor regarding his academic assessments. I first saw Mr Chung in early February. At this time his emotional fragility was very apparent and I learned he was being treated by Dr Ben Teoh, a psychiatrist, as well as consulting Ms Julie Grove on campus. Today it was apparent that Mr Chung continues to be very distressed and disturbed, expressing his lack of confidence in the School of Physiotherapy and in Ms Grove as well as threatening to suicide on campus. In view of his emotional state and the nature of his claims and assertions, I feel it would not be appropriate for me [to] pursue my usual line where a student registers a complaint of this nature. I spoke briefly about the matter with Ms Grove today and she agrees. During our discussion, Mr Chung produced the attached letter which I undertook to forward to you. Mr Chung's intention was that it be deemed a formal report of his grievance, to be conveyed to the Dean. In the circumstances, I have not insisted on his following normal protocol. As I take very seriously the student's observations about suicide, I feel that the Dean should be made aware of the matter. Initially Mr Chung insisted that the Dean investigate his complaint without contacting the School of Physiotherapy, because he believes academics will give a false account of events. This viewpoint reflects Mr Chung's highly wrought emotions, however I explained to him that in forwarding the document through you to Professor Kendig, the student must now leave matters to the Dean's judgement. Despite my efforts to dissuade him, the student has a somewhat unrealistic belief that the Dean will be able to resolve matters in his favour and communicate a decision to him by the end of the week. I appreciate your assistance in resolving this matter." 10 I regard the contents of this letter as an important part of the history of the matter and, in particular, the indication that Mr Chung had, in the opinion of Sylvia Black, an unrealistic belief that the Dean would be able to resolve the matters in Mr Chung's favour. 11 There were meetings in July and August 1999 between Mr Chung and the faculty to discuss the clinical placement issues and his progress generally. On 9 September 1999 the university wrote to Mr Chung about the examinations he must complete. On 17 September 1999 Mr Chung failed to attend the deferred Cardiopulmonary Physiotherapy II exam, and he met with the Dean on 22 September 1999. On 25 October 1999 the Head of School wrote to Mr Chung asking him to confirm his availability to take the deferred Clinical Education 1A unit exam. No reply was received. A month later Mr Chung applied for leave of absence. On 30 November 1999, Mr Chung lodged a complaint with the Ombudsman. On 6 January 2000 the university responded to Mr Chung's request to appeal, and on 18 January 2000 advised that his appeal would not be referred. 12 On 3 February 2000, as I indicated earlier, the University advised Mr Chung that he must show cause, and on 7 March 2000 the University advised him that he would be excluded from the course for two years. There was further correspondence concerning that decision. 13 On 10 January 2000 in a letter from the Ombudsman, an investigation officer, Ms Helen Ford, noted in the penultimate paragraph: "While I acknowledge you believe the university has been unhelpful and treated you unfairly, the correspondence you provided with your complaint to this office in fact suggests the Dean and other staff have been sympathetic and attempted on a number of occasions to put in place mechanisms to assist you in your studies. The Ombudsman can consider complaints of mal-administration and unreasonable conduct by New South Wales government departments and public authorities where there is prima facie evidence of such conduct. In the absence of evidence of such conduct in relation to the matters about which you complain I must decline to take further action on your complaint. I confirm your file at this office is now closed." 14 On 17 April 2000 Mr Chung wrote what might be termed a demand to the Dean and there was further correspondence from the Dean to Mr Chung. On 4 September 2000 Mr Chung lodged a complaint with the Human Rights and Equal Opportunity Commission, the University of Sydney being the respondent to that complaint. In paragraph 11 of that complaint, in response to the invitation to describe "the discrimination you are complaining of", Mr Chung wrote: "School neglects a student's health professionally. Also excluded me from school even though I am sick." 15 On 24 January 2001 the University responded to Mr Chung's complaint, and on 20 March 2001 the President of the Human Rights and Equal Opportunity Commission, Alice Tay, wrote a six page letter to Mr Chung concerning his complaint of discrimination under the Disability Discrimination Act 1992 (Cth) and the Racial Discrimination Act 1975 (Cth). That very detailed response to the claim of disability discrimination and race discrimination includes the following paragraphs in respect of the particular complaints made by Mr Chung. 16 Concerning the complaint about the subject Clinical Education 1A, the President advised: "The information available suggests that, in deferring the assessment for this subject, the university attempted to provide you with accommodation for your disability that I consider to be reasonable in the circumstances." 17 In respect of the concern about the performance in the subject Cardiopulmonary Physiotherapy II, the President wrote: "You deny that you failed the examination for this subject. It would appear that the university considered that you failed the exam for this subject in 1998, granted you special consideration due to your disability and permitted you to undertake a supplementary exam. I understand that another exam for this subject was scheduled for 22 June 1999 but that you did not attend. You state you requested special consideration on 30 June 1999 because of your disability. You claim that the university psychologist had, prior to the examination, informed you that you were not required to undertake it. In its letter to you of 17 August 1999 the university indicates that it was not initially prepared to give you another deferred assessment for this subject however, after reviewing your circumstances, allowed you to sit the exam again in September 1999. The university claims that the Dean advised that the exam could be deferred again only if you provided the medical certificate beforehand. You did not attend the exam without providing any prior medical certificate." Then the President said: "I am of the view that the university's attempt to accommodate your disability to enable you to undertake Cardiopulmonary Physiotherapy II were reasonable in the circumstances and not evidence of discrimination." 18 The President later said: "I do not consider that there is sufficient evidence that the university discriminated against you on the basis of your disability. I consider that it is not unreasonable for the university to have required you to attend examinations and to submit assessments in the absence of medical evidence detailing the reasons for your inability to do so and detailing what particular accommodation was required. I also consider that it is not unreasonable for the university to have required you to discuss an application for leave of absence prior to the start of examination period. To substantiate a complaint of discrimination it is not sufficient for you to show that you have a disability and that you have suffered unfair treatment. It is necessary to show that at least one reason for being treated less favourably than other students is based on your disability. Alternatively, it is necessary to show that you have been required to comply with a condition which you are unable to because of your disability and which is unreasonable in the circumstances. I appreciate the frustration you may have experienced in your dealing with the university. However I am of the view that there is insufficient evidence to indicate that the university has discriminated against you on the ground of your disability." 19 In relation to the complaint alleging discrimination on the grounds of race, again the President advised: "I appreciate that you may be very distressed by your dealings with the university. However I have formed the view that there is no or no sufficient evidence to support your allegations that the university unlawfully discriminated against you on the basis of your disability or on the basis of your race, colour, descent or national or ethnic origin. I have therefore decided to terminate your complaint pursuant to section 46PH(1)(c) of the Human Rights and Equal Opportunity Commission Act 1986, as I am satisfied that it is lacking in substance." 20 The President advised of the possibility of an application to the Federal Court or to the Federal Magistrates Court for a hearing of the allegations. On 10 April 2001, Mr Chung filed an application in the Federal Court. At the first directions hearing in respect of that matter, Madgwick J had the discussion concerning Mr Chung's decision not to have legal assistance previously referred to. 21 On 29 June 2001 the application was transferred to the Federal Magistrates Court, and on 11 September 2001 the University of Sydney filed an application for summary dismissal of that application. That motion was heard on 20 September 2001, and on that day the Federal Magistrates Court ordered: "1. Pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules, the Applicant's application to this Court be dismissed generally. 2. The applicant is to pay the respondent's costs of the application including any reserved costs. 3. Pursuant to Rule 21.02(2) of the Federal Magistrates Court Rules, the amount of costs are set as the amount payable for a stage 2 proceeding under Schedule 1 of the Federal Magistrates Court Rules, that sum being $1135 plus the daily hearing fee." The court certified that: "1. Pursuant to Rule 21.15 it was reasonable for the respondent to employ an advocate at the hearing held on 20 September 2001." 22 I will refer in more detail to the written reasons of the Federal Magistrate for the making of those orders, but the next matter in the Federal Court was the filing on 3 October 2001 of a document headed Notice of Appeal by Mr Chung as applicant, naming as respondents Lyndall Maxwell, Julie Grove, Elfreda Marshall and the University of Sydney. 23 The grounds specified in that document are as follows: "The time to appeal in the Court was insufficient to explain my mental disorder and discrimination. I could not explain the University's malconduct and malbehaviour, which is opposite to truth or which can be an offence. I feel the applicant's time to appeal was shorter than the defendant's. University did not response to the orders in previous Court which was cited by the Judge on the 4th of September 2001. Also my demand University to answer to the letter on page 17, but it was not discussed fully in the Court. The fact University did not know my mental disorder until the 20th of September 2001 was regarded as normal conduct in the Court. This is very difficult for me to accept the decision of this Court. I would like to decline all the University's advocate in the Court on the basis the defendant does not know applicant's disadvantage and health status. Major depression and Anxiety is apparently different condition and it should be treated and accommodated differently. Major depression (applicant) should be regarded as a disabled patient. I would like to argue that University excluded the applicant on the basis of race and disability rather than that argument of language skills." 24 In respect of the orders sought Mr Chung set out the following: "1, The defendant should justify the letter on page 17. I felt a threat due to this letter and it caused disaster to me. 2, The defendant should answer when noticed the applicant in major depression. 3, The defendant should answer who destroyed the applicant's exam papers?. 4, The defendant should answer what Julie Grove discussed with an applicant's Psychiatrist?. 5, Answer what sort of agenda was supposed to be in the meeting between the applicant and Jack Crosbie (page 41). 6, What was the applicant's last consultation with Julie Grove". 25 On 24 October 2001, the respondents named in the notice of appeal filed a motion objecting to the competency of the appeal. This application was based on O 52, r 18 of the Federal Court Rules which relevantly provide: "18(1) A respondent may move on notice at any time for an order dismissing an appeal as incompetent. 18(2) Upon the hearing of the motion, the burden of establishing the competency of the appeal is on the appellant.]" 18(3) If a respondent does not move under sub-rule (1) but the appeal nevertheless is dismissed by the Court as incompetent, the respondent shall not, unless the Court otherwise orders, receive any costs of the appeal, and the Court may order that he pay the appellant any costs of the appeal proving useless or unnecessary." 26 The Full Court of the Federal Court in Microsoft Corporation v Marks (1996) (No. 2) 69 FCR 144 at 147 observed: "Clearly, the rule treats an objection to competency as a special ground for the dismissal of an appeal which should generally be disposed of as a preliminary matter in order to obviate the risk of an unnecessarily lengthy appellant hearing …" 27 The notice of motion sought that: "1. the Notice of Appeal filed in these proceedings be dismissed as incompetent pursuant to Order 52 rule 18, or alternatively, pursuant to the Court's inherent jurisdiction. 2. further, and in the alternative, the Notice of Appeal discloses no proper ground of appeal; 3. further, and in the alternative, the Notice of Appeal improperly names as parties to the appeal persons who were not parties to the Federal Magistrates' Court proceedings identified as no. SZ365 of 2001 from which this appeal issues, namely Lyndall Maxwell, Julie Grove and Elfreda Marshall; 4. the Applicant pay the Respondents' costs of the Notice of Appeal and this motion; …" 28 When the matter was called on today, Mr Chung clearly demonstrated his anxiety in relation to his dealings with the University of Sydney, and he displayed in great detail his focused belief that the University of Sydney had unlawfully discriminated against him in the dealings leading to his exclusion from the physiotherapy course. 29 While Mr Chung referred to matters with a genuine passion and clearly continued to manifest the beliefs which the President of the Human Rights and Equal Opportunity referred to in respect of the complaint to that body, Mr Chung unfortunately was unable to understand that this is an appeal from the decision of Federal Magistrate Driver and is not the occasion to determine the merits of his claims. 30 The reasons for judgment of the Federal Magistrate disclose that the applicant is Korean. He asserts that he suffers from a depression illness. Earlier in the history of the matter, it appears from this judgment that he was diagnosed as suffering from an anxiety disorder: "Where the disability is depression or anxiety I am prepared to accept for the purposes of the application for summary disposal that the applicant is suffering from a mental disability recognised under the Disability Discrimination Act 1992 (Cth)." Driver FM then referred to a number of incidents about which Mr Chung had made representations. 31 The general principles for summary dismissal accepted by the Federal Magistrate were noted by him as being set out in the case of MacKellar and Anor v Container Terminal Management Services Limited & Ors (1999) 165 ALR 409, particularly at 415 to 417. Weinberg J in that case noted at 415: "It is clearly established that the jurisdiction of the court to dismiss a claim upon the basis that it discloses no reasonable cause of action is to be sparingly invoked." And stated (at 416): "[Those authorities] confirm that a proceeding should not be dismissed summarily merely on the ground that it appears, at the early stage of the hearing that the motion brought for that purpose, to advance a highly implausible claim which will very probably fail, but only where the claim may properly be described as unarguable and almost incontestably bad, or where the claim is otherwise objectionable as an abuse of the process of the court." 32 The Federal Magistrate noted: "We are in this case dealing with an unrepresented litigant and some special considerations apply in such a case." 33 Driver FM referred to the judgment of Sackville J in re Moreton; ex parte Mitchell Products Pty Limited (1996) 21 ACSR 497 at 513 to 514, where Sackville J said: "The authorities… make it clear that those powers must be exercised with 'exceptional caution'. The case must be very clear indeed to justify the summary intervention of the Court, to deny a litigant the opportunity to present his or her case to the Court." 34 In my view, no error in the applicable legal principles is displayed in the judgment below. In particular, Federal Magistrate Driver noted (at paragraph 14): "I accept that there is an obligation upon me to satisfy myself that there is no arguable case to be put forward by Mr Chung in these proceedings before I accede to the application to dismiss the proceedings and that I should in that consideration not limit myself to the arguments put by Mr Chung but independently consider whether an arguable case based on the material could be made out." 35 The Federal Magistrate further reinforced the high test that has to be met before making an order of summary dismissal by referring to the observations of Drummond J in Ebber v The Human Rights and Equal Opportunity Commission (1995) 129 ALR 455 at 468: "A complainant must therefore have at the outset of the inquiry into his complaint sufficient material, it need not be legally admissible evidence, … to show that he has more than a remote possibility of a well founded claim if he is to defeat an application for summary dismissal of the case that can be made out at the start of the inquiry." He noted later: "… summary power of dismissal is only exercisable in any event in clear cases." 36 Having, in my opinion, properly set out the applicable legal principles to the application before him, Driver FM made the following finding in paragraph 20: "First, neither the application, nor the particulars nor the affidavit filed by the applicant discloses any evidentiary foundation for the claim of either race or disability discrimination. Secondly, the material filed by the applicant discloses that the university provided him with additional services and facilities not provided to other students. Indeed, the university went to great lengths to assist the applicant when he was a student. Thirdly, there was nothing in the material which demonstrates any causal nexus to the alleged acts of discrimination and the applicant's race. Finally, there was nothing in the material which demonstrates any causal nexus to the alleged acts of discrimination and the applicant's disability." 37 Federal Magistrate Driver said: "… there is nothing on which a plausible case could be made out supporting a proposition that if that incident [being an incident referring to a tutorial in 1997] occurred at all it occurred with any connection to Mr Chung's race. It is apparent that Mr Chung suffered difficulties in coping with his university studies almost from the outset. It is also apparent that the university made a substantial effort, in fact a very substantial effort, to attempt to assist him with his studies to enable him to complete his course successfully. Ultimately, after seven years the university felt it was unable to continue with those efforts and took the decision to exclude Mr Chung." 38 At paragraph 27, the Federal Magistrate stated: "Mr Chung clearly suffers from a disability, be it an anxiety disability or a depression disability, that continues to this time. He has been unable to accept the appropriateness of the way he has been dealt with by the university and that has led him to this point. In the course of these proceedings I attempted to assist him by referring him for legal assistance under Part 12 of this Court's Rules but that did not turn out to be productive. In addition to the general principles that I have referred to in relation to the exercise of the discretion of summary dismissal it seems to me that there are cases where it is in the interests of justice that litigants be given some protection from themselves. It seems to me that this is such a case." 39 Federal Magistrate Driver ordered that the application be dismissed generally and that Mr Chung pay the university's costs of the application, which he set at $1135 plus the daily hearing fee. 40 As I noted earlier, the applicant has not sought leave to appeal. In my judgment his notice of appeal discloses no proper grounds for an appeal. Section 20 of the Federal Magistrates Act 1999 (Cth) provides for appeals to the Federal Court. Section 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) establishes this court's appellate jurisdiction in relation to decisions of the Federal Magistrates Court. The appeal is not by way of re-hearing, but is an appeal in the strict sense and the appeal may be heard by a single judge of this court: s 25(1A) of the Federal Court of Australia Act 1976 (Cth). 41 In this case, the Federal Magistrate considered the evidence on which the appellant relied and concluded that there was no possibility that he could succeed with his claim and dismissed the application accordingly. 42 The appellant requires leave to appeal because the decision of Driver FM was an interlocutory decision. The authorities make it clear that the dismissal of an action on the ground that it does not disclose a reasonable cause of action is interlocutory and not final: Hunt v Allied Bakeries Ltd [1956] 1 WLR 1326 at 1328; Salter Rex & Co v Ghosh [1971] 2 QB 597 at 601; Weatherall v Satellite Receiving Systems (Aust) Pty Ltd (1999) 92 FCR 101 at 103; Minogue v Williams (2000) 60 ALD 366 at 371. 43 Leave to appeal from such a decision should not be granted unless, in all the circumstances, the decision is attended with sufficient doubt to warrant its re-consideration and substantial injustice would result if leave were refused, supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398 to 400; Niemann v Electronic Industries Ltd (1978) VR 431 at 438. 44 On the first limb, the notice of appeal fails to disclose any grounds that cast doubt on Driver FM's decision. There has been no attempt by Mr Chung to identify any relevant legal error in the principles applied by the Federal Magistrate in dismissing the application. 45 On the question of whether there would be substantial injustice if leave to appeal was not granted, in my judgment there is no prospect that the complaint of race or disability discrimination would be successful if leave to appeal was allowed. The evidence carefully examined by the Federal Magistrate was such as not to disclose even a prima facie case of discrimination on the ground of disability or race. In those circumstances, there is no injustice in terminating proceedings which were doomed to fail. 46 The position, unhappily for Mr Chung, is that he is unable to support his allegations of discrimination on the ground of disability or race. His allegations are based solely on his perception of events. There is no objective evidence which supports Mr Chung's claim that his treatment was in any way coloured by either his disability or his race. The evidence points overwhelmingly in a different direction. Broad and bald accusations which fly in the face of the material are insufficient to establish discrimination on the ground of disability or on the ground of race. 47 It is competent for a court to join a person as a respondent to an appeal. However, on the principles in relation to joinder, no proper basis for a joinder is made out in respect of the three persons, Maxwell, Grove and Marshall, who were named in the "Notice of Appeal" as respondents to the appeal. There is an absence of any basis to demonstrate that these persons are necessary and proper parties to the appeal from the decision of Driver FM. 48 For the reasons which I have set out above, Mr Chung requires an extension of time within which to seek leave to appeal and then requires leave to appeal from the decision of Driver FM. There are no grounds which would warrant an extension of time or leave to appeal being granted and therefore, leave to appeal is refused with costs. 49 As I have indicated, the notice of appeal fails to disclose any proper grounds of appeal, with the consequence that any appeal would be futile. 50 In these circumstances, the order that the Court makes is that leave to appeal is refused, with costs. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.