Dunne v Astor Pty Ltd [1999] FCA 879 (22 June 1999)

Last Updated: 7 July 1999

FEDERAL COURT OF AUSTRALIA

Dunne v Astor Pty Ltd [1999] FCA 879

ANGELA DUNNE V THE ASTOR PTY LTD & ANOR

N 86 OF 1999

THE HON JUSTICE MARCUS EINFELD AO

SYDNEY

22 JUNE 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 86 OF 1999

BETWEEN:	ANGELA DUNNE Applicant
AND:	THE ASTOR PTY LTD Respondent
AND:	WALLY PATTERSON Second Respondent

JUDGE:	THE HON JUSTICE MARCUS EINFELD AO
DATE:	22 JUNE 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 On 8 February 1999 the applicant filed what was described as a general application to the Court concerning what was called "marriage discrimination". It was completed by the applicant in her own handwriting. On 9 April, when the matter first came into the list for directions, I told Mrs Dunne that her application as presently filed did not provide any basis for the intervention of the Court, but that I would permit her to file an amended application to try and bring her case within the Court's jurisdiction. The matter was adjourned to 13 May for further directions.

2 Mrs Dunne in fact filed an affidavit on 1 April in which she said, amongst other things, that her case was based upon sex discrimination and that the particular discrimination was discrimination on the grounds of her marital status. She annexed to the affidavit a letter from the Human Rights and Equal Opportunity Commission, dated 11 January 1999, which stated that the delegate of the Sex Discrimination Commissioner had decided not to inquire further into her complaint under the Sex Discrimination Act but that it had been referred to the President to review following upon the applicant's request. There is nothing to indicate that the President has dealt with the matter. In any event the applicant filed her application in this Court, rather than await, apparently, the decision of the President of the Commission.

3 The case was subsequently listed for directions on the morning of 2 June. At that time I had to attend a funeral, so an offer was made to move the matter to the afternoon of that date. The applicant told the Associate that she could not be present in the afternoon whereafter the applicant wrote to allege that the change of time was due to some dark conspiracy against her. I therefore caused a Deputy Registrar to write to the applicant stating that the case would be fixed for hearing today. In that letter the Deputy Registrar told the applicant that she should be ready to present her entire case to the Court today and that any witnesses she wished to call should also be present. She was also told to inform any lawyer she had that the case would be heard today. The applicant has attended today unrepresented but with the assistance of an interpreter and another person to present her case. The second respondent, who is the secretary of and appeared to represent the first respondent as well as himself, also appeared in person.

4 The application is in narrative form. It does not identify any claim based upon sex discrimination on the grounds of marital status. It refers to the disposal of her complaint by the Human Rights and Equal Opportunity Commission but in other respects says nothing other than that this was a case of marriage discrimination. In the affidavit of 1 April, she again set out a reasonably detailed if confusing narrative but did not identify any element that could conceivably come within the jurisdiction of the Court whether sitting in its general division or otherwise. I originally took the application to be in effect an application for judicial review of a decision of the Commission, but as there in fact does not appear to have been any decision of the Commission at all, there is no basis for judicial review. In any event the applicant reminded me today that her application was a general application to the court.

5 I therefore asked the applicant to state what the application was in terms of grounding or founding the jurisdiction of the Court to deal with it. She told me that there were three claims: sex discrimination, age discrimination and what she called "trade practices". She also provided me with a document headed "Application to the Federal Court", which in discussion she informed me was the amended application or additional application which I had earlier permitted her to file. This is also a narrative document, which is not in any form permitted by the rules of court, but in any event it does not identify any case at all under any of those three headings.

6 The Court of course has no primary jurisdiction in matters of discrimination. It can review decisions of the Human Rights and Equal Opportunity Commission but it cannot exercise original jurisdiction in human rights matters. In any case I must observe that in neither of the applications before the Court, or in any of the other copious documentation which the applicant has presented to the Court, all of which I have read, does she make out a case for either sex discrimination or age discrimination. As for what she calls trade practices, I can find nothing in the papers which would found any case under the Trade Practices Act, whether Part IV or Part V.

7 The applicant's applications and documentation, stripped of their emotive content, allege that her late husband was wrongly dismissed from his position as caretaker by the first respondent, The Astor Pty Ltd, which is the owner and manager of an exclusive block of apartments in Macquarie Street, Sydney. The facts that appear to attach to the claim are that her husband was removed by the company from his position as caretaker on the grounds that by reason of his advanced age and imperfect state of health, he was unable to carry out all the duties that the company wished a caretaker to carry out once some extensive renovations to the building had been completed. It appears that his dismissal created considerable controversy amongst the residents of the building and the board of directors was placed under pressure either to reverse the dismissal or to pay the late Mr Dunne a much more significant redundancy payment than originally planned. Mr Dunne's supporters asserted that any problems which he had in carrying out his duties as caretaker were overcome by the fact that his wife, the applicant, could and often did handle them in his place. The Dunnes had a young son and lived in a small apartment in the building.

8 There is some dispute about how old Mr Dunne actually was at the relevant time. In some papers he was said to have been 69, in others 72, in yet others 74. But none of this relates to my task here as I obviously cannot determine by myself how old he was, and were I able to do so, it would not assist in dealing with this claim. The age discrimination referred to by Mrs Dunne was not the age of her husband but her own age. She is and was at the time of her husband's death considerably younger than him. At one point the board of The Astor apparently considered the possibility of employing Mrs Dunne in a job-sharing or joint caretaker role with her husband, or even on her own. Ultimately it was decided not to do so for one reason or another. There is no evidence that these decisions reflected any discrimination but even if they did, they could not ground jurisdiction in the Federal Court to entertain any such claim.

9 I pointed out to Mrs Dunne that sex discrimination on the ground of marital status is not discrimination on the basis of who a person is married to but of whether a person is or is not married. Discrimination is forbidden on the basis that a person is or is not married as the case may be. In this case there is no doubt that Mr and Mrs Dunne were married. There is no evidence in any of the papers that Mrs Dunne was discriminated against on the grounds that she was a married person as opposed to a single person. In fact of course she would not have been in the building and would not have had anything to do with the matter at all were she not married to Mr Dunne.

10 The application and other material suggest that Mr Dunne had an unpleasant death which was contributed to, if not caused, by harassment and stress on the part of the company. The application seems to seek, although not in express terms, damages for the stress which Mr Dunne suffered in his workplace and the losses that their son and Mrs Dunne herself have suffered. If the evidence on these matters gave rise to any legal entitlement in Mrs Dunne, it is again not a matter within the jurisdictional reach of the Federal Court. I say that because in the so-called application to the Federal Court which was handed to me today, the applicant seeks amongst other things, an apology from The Astor. In the original application filed on 8 February she referred also to apologies and damages. If the application is therefore taken to be one for an apology and damages for sex and age discrimination, the Federal Court has no power to entertain such an application. The only power even slightly appropriate to such matters would be an application to review a decision of the Human Rights Commission. There has been no relevant decision that can be reviewed in this connection, and no application for review before the Court. Even if there had been, the Federal Court could not, except in the most extreme and unlikely circumstances, order an apology or damages in such a case.

11 The Court of course has power to hear cases brought under the Trade Practices Act. The mention of trade practices by Mrs Dunne today is the first such mention. There is no reference in any of the papers to the Trade Practices Act and no facts are stated which could ground any such application. Obviously if the criteria provided by any particular section of the Trade Practices Act were made out and there was any evidence of a contravention of the Act by the respondents, then the matter could sound in damages. There is in fact no case made out at all and there is no reference to any facts which could found any case for a breach by The Astor Pty Ltd, or its secretary Mr Patterson, of that Act.

12 I have tried to explain to Mrs Dunne, both in argument and in these remarks on judgment, that the Court cannot simply hear cases that any person wants to bring before it. The Court is created by the Parliament and the laws which it applies and administers are the laws of the Parliament and the country. The Court does not write the laws and is not responsible for what appears in them. The Court is therefore not the author or arbiter of its own jurisdiction, meaning its capacity or power to hear legitimate cases.

13 Mrs Dunne's general application to the Court, filed on 8 February, and her affidavit of 1 April, should not have been allowed to be filed. This is not because the Court is an unfriendly place or does not want assist people who have difficulties, especially when they appear without lawyers, but because nothing identified in the application could conceivably found any basis for the Court to hear a case or determine any issue between Mrs Dunne and the respondent. If the applicant wishes to allege that her husband died as a consequence of any negligence or miscreance on the part of his former employer, and that claimable damage was suffered as a consequence, then there are ample opportunities for bringing such a case before another Court, but it is not this Court and it is not in this application.

14 If she wishes to allege that the Human Rights Commission has erroneously decided any complaint of sex or age discrimination, then she may bring a case for the review of any relevant decision of the Commission. If there is any case which she wishes to bring indicating that The Astor has contravened any provisions of the Trade Practices Act entitling her to some relief, then an application can be filed.

15 None of these elements have appeared in either of the applications filed in the Court thus far, or in any of the papers which Mrs Dunne has presented to the Court during the various hearings and by mail. As the documents appear to provide a comprehensive background to her and her late husband's disputes with The Astor, I can only assume that there therefore is no claim which can properly be brought.

16 I note that a case was taken by Mr Dunne to the Industrial Commission of New South Wales for wrongful dismissal. I do not know what happened to that case and, in any event, obviously no case for wrongful dismissal can be brought by somebody who is no longer living. Some small parts of legal advice given to Mr Dunne by a lawyer apparently hired by his union have been made available to me, but it is such a small selection of the advice that I cannot draw any particular conclusions from it. What I do have does not read favourably to a claim for wrongful dismissal. But for present purposes all that needs to be said is that if Mr Dunne was wrongfully dismissed by The Astor, this Court has no power to investigate the matter or make any findings or rulings as a consequence.

17 On the material presented to the Court, there is no case which comes within the jurisdictional purview of the Federal Court at all. There is no matter that the Court can entertain and there are no rulings or orders that the Court can make to provide the type of relief which Mrs Dunne has sought. For those reasons, I dismiss the application.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marcus Einfeld AO.

Associate:

Dated: 22 June 1999

The applicant appeared in person.
For the first respondent:	Mr Wally Patterson, Secretary
The second respondent appeared in person.
Date of Hearing:	22 June 1999
Date of Judgment:	22 June 1999