Seers v Australia Post [2011] FMCA 659 (30 August 2011)

Last Updated: 20 October 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SHARON LEE SEERS v AUSTRALIA POST

[2011] FMCA 659

HUMAN RIGHTS – Disability discrimination – workplace injury – alleged discriminatory treatment arising from injury – application for summary dismissal – failure of Applicant to show her complaint comes under Disability Discrimination Act – application for summary dismissal upheld – principal application dismissed.

Australian Human Rights Commission Act 1986, ss.46PH(1)(i) and 46PO(1) Disability Discrimination Act 1992, ss.5, 6, 15 and 123 Federal Magistrates Court Rules 2001, rr.13.07 and 13.10

Assal v Department of Health, Housing & Community Services [1990] HREOCA 8 Ebber v Human Rights and Equal Opportunity Commission [1995] FCA 1134; (1995) 129 ALR 455 McKellar v Container Terminal Management Services Limited [1999] FCA 1101; (1999) 165 ALR 409 Oorloff & Anor v Lee & Anor [2004] FMCA 893 Paramasivam v Grant & Anor [2001] FCA 758 Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 Rajski v Scitec (Court of Appeal, unreported, 16 June 1986) Re Morton; Ex Parte Mitchell Products Pty Ltd (1996) 21 ACSR 497 SZBBL v MIMIA [2004] FMCA 185 Travers obo Travers v New South Wales [2000] FCA 1565

Applicant:

SHARON LEE SEERS

Respondent:

AUSTRALIA POST

File Number:

MLG 1132 of 2010

Judgment of:

O’Dwyer FM

Hearing date:

18 April 2011

Date of Last Submission:

6 May 2011

Delivered at:

Melbourne

Delivered on:

30 August 2011

REPRESENTATION

Counsel for the Applicant:

In person

Counsel for the Respondent:

Ms Nelson

Solicitors for the Respondent:

Minter Ellison

ORDERS

(1) Pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001, the application filed on 13 August 2010 is dismissed.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE

MLG 1132 of 2010

SHARON LEE SEERS

Applicant

And

AUSTRALIA POST

Respondent

REASONS FOR JUDGMENT

Introduction

1. This proceeding came on for final hearing on 18 April 2011, on which occasion the Respondent prosecuted an Application in a Case to have the principal application summarily dismissed under Rules 13.07 and/or 13.10 of the Federal Magistrates Court Rules 2001, on the basis that the Applicant had no reasonable prospect of successfully prosecuting her claim.
2. Submissions were made in support of that application, but as the Applicant was unrepresented, and in order to give her ample opportunity to respond to the Respondent’s application, at the end of verbal submissions, directions were given for the filing of submissions on the part of the Respondent in support of its application and for submissions in response to be provided by the Applicant.
   Thereafter, the application for summary dismissal was to be considered on the papers. This judgment is the determination of the Respondent’s application for summary dismissal. It was understood that should the Respondent’s application be unsuccessful, the matter would return to Court for further directions as to a final hearing.

Background

3. The Applicant began this proceeding, as she was required to, by making complaint to the Australian Human Rights Commission (the Commission), pursuant to s46P of the Australian Human Rights Commission Act 1986 (the Human Rights Act). On 19 July 2010, a delegate of the President of the Commission terminated her complaint pursuant to s46PH(1)(i) on the ground that there was no reasonable prospect of the matter being settled by conciliation. Thereafter, the Applicant became entitled, pursuant to s46PO(1), to make an application to this Court alleging unlawful discrimination by the Respondent.
4. On 13 August 2010, the Applicant applied to the Court pursuant to sections 5, 6, 15 and 123 of the Disability Discrimination Act 1992 (the DDA) seeking redress for her complaints by way of a declaration that the Respondent had discriminated against her; a claim for loss due to aggravation of an injury; and pain and suffering arising out of the discrimination.
5. The background giving rise to the alleged discrimination centres around a fall she had at work on 30 October 2008, resulting in generalised injury, pain and shock, but in particular her left ankle and knee. She was escorted to a hospital and thereafter followed more generalised complaints, but in particular bruising to her left chest wall and difficulties with breathing.
6. Again, in general terms, what followed was communication to and from her employer regarding fitness for work and programs designed to get her back to work. What also followed, as is the normal course of events in these types of injuries in the workplace, were medical assessments, both by her own doctor and by those she was referred to by her employer. In short, she complains about the means and manner in which she was subjected to medical assessment, she complains about the quality of the medical assessments, and she complains about the failure of her employer to give proper consideration to medical assessments provided by her. Her complaints also pivot around errors made in documentation, allegedly aggressive prosecution by the Respondent of a back-to-work program and a return to work that proved, from her perspective, too early, resulting in aggravation of her injuries.
7. For reasons set out below, putting her case at its highest and accepting the truth, and understanding of the Applicant, of the allegations made by her, I am not satisfied that she is able to bring her complaints within the ambit of the DDA, and thereby a successful claim which amounts to unlawful discrimination and a breach of the DDA.

Legislative Framework and the Law Applicable

8. Although the Respondent’s application in the case made reference to Rule 13.07 of the Rules in support of a summary dismissal, in the context of this case, it appears to have no application. However, under Rule 13.10:
   • The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
     • (a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; (emphasis added)
     • ...
9. In the Respondent’s submissions in support of the summary dismissal, the Respondent acknowledges the very high bar set before such applications can be successful, and also acknowledges that the onus of proof falls upon the Respondent.
10. The Respondent’s submissions set out a convenient summary of the relevant principles to be applied in such applications in [6] to [16]. Those paragraphs are repeated below:
    • 6. The general principles for summary dismissal were explained by Weinberg J in McKellar v Container Terminal Management Services Limited[1]. At 415, Weinberg J noted:

“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.”

7. After surveying the authorities on the law of summary dismissal, Weinberg J concluded at 416 that:

“They confirm that a proceeding should not be dismissed summarily merely on the ground that it appears, at the early stage of the hearing of 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 process of the court.”

8. The principles which apply to an application to summarily dismiss proceedings in this Court were summarised by Driver FM in SZBBL v MIMIA[2]:

“Part 4, Rules 4.01 and 4.02 of the Federal Magistrates Court Rules relevantly provide that an application to the Court must state precisely and briefly the orders sought and the basis on which the orders are sought. Rule 4.05(1) provides that an applicant must file an affidavit in support of an application, whether seeking final, interim or procedural orders.

Part 13, Rule 13.10(a) of the Federal Magistrates Court Rules deals with the dismissal of a proceeding or claim for relief if that proceeding or claim discloses no reasonable cause of action.

The power to strike out or dismiss an application on the basis that there is no reasonable cause of action disclosed should only be exercised where it is inevitable that the proceeding will fail and should be exercised with exceptional caution, especially where the ultimate outcome depends on the resolution of disputed facts.

An order for summary dismissal should only be made where the claims are clearly untenable and cannot succeed or where it is clear that there is really no question to be tried, that the grounds for the application are unarguable or it is a hopeless case with no chance of success.

In circumstances where an applicant is self-represented, it has been held that the Court should independently consider whether an arguable case based on the material could be made out by the applicant.”

9. The Respondent accepts that as set out in Oorloff & Anor v Lee & Anor[3] that in unlawful discrimination cases the power to summarily dismiss ought be exercised with caution.
   Walter FM summarised the relevant principles that apply when there is consideration of summary dismissal of an unlawful discrimination matter, particularly where there is an unrepresented litigant. He stated (quoting from submission made to him):

“I also agree with the summary of the law in relation to this subject set out in paragraphs 1 to 12 of the written submissions prepared by Mr Redd (on behalf of Ms Lee):

...

4. In the context of discrimination legislation, both the Federal Magistrates Court and Federal Court have emphasised that the power to summarily dismiss a matter must be exercised with ‘exceptional caution’ and be ‘sparingly invoked’. In particular, the power should be used with great care when the litigant is unrepresented.”
5. The Federal Court has also held, however, that:

‘Whilst circumspection is appropriate, if the evidence before the Court establishes that if the matter were to go to trial in the ordinary way the application must fail then a case for summary dismissal of the proceedings is made out.’[4]

6. Lehane J in Travers obo Travers v New South Wales[5] affirmed the view of Sir Ronald Wilson in the HREOC decision of Assal v Department of Health, Housing & Community Services[6] that:

‘it is in the public interest, as well as the interests of both parties, that the hearing of a complaint which is clearly shown to be lacking in substance should be summarily terminated. Certainly, it is no kindness to a complaint to shrink from the exercise of the power... in circumstances where that exercise is clearly warranted’.

7. Lehane J added:

‘That is especially so, perhaps, in this Court where an unsuccessful litigant, if proceedings are protracted, may face what can be the considerable burden of a costs order.’

8. Special considerations apply in applications for summary dismissal with an unrepresented litigant. Sackville J in Re Morton; Ex Parte Mitchell Products Pty Ltd[7] surveyed the authorities and noted that the Court:

‘must... have regard not merely to the litigant in person but also to the position of the other party or parties concerned and to what is required, in justice, to prevent the unnecessary expenditure of public and private resources.’

9. In conclusion, at p.514 Sackville J quoted with approval the words of Mahoney JA in Rajski v Scitec[8]:

“Where a party appears in person, he will ordinarily be at a disadvantage. That does not mean that the court will give to the other party less than he is entitled to. Nor will it confer upon the party in person advantages which, if he were represented, he would not have. But the court will, I think, be careful to examine what is put to it by a party in person to ensure that he has not, because of lack of legal skill, failed to claim rights or put forward arguments which otherwise he might not have done”.

10. Both the Federal Magistrates Court and the Federal Court have made it clear that the onus in a summary dismissal application is on the respondent, who must establish ‘a high measure of satisfaction in the Court that the proceedings are of a character that they should be dismissed’.
11. In determining whether there is an arguable case, the Court is not limited to considering the arguments put before it by the party defending the application, but may look at all the material to assess independently whether an arguable case based on the material could be made out.
12. Drummond J in Ebber v Human Rights and Equal Opportunity Commission [1995] FCA 1134; (1995) 129 ALR 455 at 468 noted that:

‘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’.

10. However, regardless of the high bar that must be reached by the Respondent, it is submitted that this is such case where the claim should be summarily dismissed because there is not even a “remote possibility if a well-founded claim”.
11. None of the allegations contained in the statement of claim (read with the further and betters particulars of claim) amount to an allegation that could in any way offend the provisions of the DDA. The only references to less favourable treatment (as required by section 5 of the DDA are) are:

“32. 10/12/08 Australia Post did treat the applicant less favorable (sic) when requesting a claim for rehabilitation and compensation. Five weeks after the incident was first reported date reported injury 6/11/08.

38. 30/1/09 Australia Post Officers did act less favorable (sic) to the applicant when making a decision on the applicants (sic) Compensation Claim without investigating the complaints of Bullying and Unfair Treatment. ... The applicant also states that she was unable to return to work for fear of more discrimination and less favorable (sic) treatment being directed by Australia Post Officers”.

12. However, these bare references to “less favourable” treatment is the closest that the pleading comes to any reference to the definition of disability discrimination referred to in section 5(1) of the DDA which states:

“For the purpose of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if, because of the aggrieved person’s disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.”

13. What the DDA requires (in respect of discrimination in employment) is that a person is:
    1. treated less favourably;
    2. in circumstances that are the same or not materially different;
    100. as the employer would treat a person without the disability.
14. In order to be a proper claim for disability discrimination under the DDA, the Applicant must demonstrate that she was treated less favourably due to her disability than another person in same or similar circumstances without the disability. As set out in Purvis v State of New South Wales[9] it is necessary in sustaining a complaint of disability discrimination under section 5(1) of the DDA to identify the appropriate comparator to whom more favourable treatment would have been given.
15. Gummow, Hayne and Heydon JJ considered how the appropriate comparator should be selected. They said:

“The comparison that is to be made is of the treatment given or proposed to be given or proposed to be given to the disabled person and the treatment of a person without the disability “in circumstances that are the same or are not materially different”. Recognising that s.5(1) requires comparison with the treatment that would be given to a person without the disability is critical to the proper application of the Act”.

16. They went on to explain how the comparison is to be undertaken:

“It may readily be accepted that the necessary comparison to make is with the treatment of a person without the relevant disability. Section 5(1) makes that plain. It does not follow, however, that the “circumstances” to be considered are to be identified in the way the appellant contended. Indeed, to strip out of those circumstances any and every feature which presents difficulty to a disabled person would truly frustrate the purposes of the Act. Section 5(2) provides that the relevant circumstances are not shown to be materially different by showing that the disabled person has special needs. The appellant’s contention, however, went further than that. It sought to refer to a set of circumstances that were wholly hypothetical – circumstances in which no aspect of the disability intrudes. That is not what the Act requires.

In requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to a person without the disability, s 5(1) requires that the circumstances attending the treatment given (or to be given) to the disabled person must be identified. What must then be examined is what would have been done in those circumstances if the person concerned was not disabled. The appellant’s argument depended upon an inversion of that order of examination. Instead of directing attention first to the actual circumstances in which a disabled person was, or would be, treated disadvantageously, it sought to direct attention to a wholly hypothetical set of circumstances defined by excluding all features of the disability.

The circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the “discriminator”. It would be artificial to exclude (and there is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person’s disability. There may be cases in which identifying the circumstances of intended treatment is not easy. But where it is alleged that a disabled person has been treated disadvantageously, those difficulties do not intrude. All of the circumstances of the impugned conduct can be identified and that is what s.5(1) requires. Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or were not materially different.”

11. The Respondent’s submissions claim, with which claim I agree, that the Applicant has failed to identify, either explicitly or by implication, any comparator in the Applicant’s application, statement of claim or the particulars. I agree with the Respondent when it said that no allegation made by the Applicant that, but for her disability, the Applicant would have been treated differently. When pressed by the Respondent to particularise how the Act applied to her claims the Applicant, in effect, responded by suggesting that it must apply otherwise the Commission would not have entertained her claim under the DDA. This plainly is not a basis for a conclusion that the complaint made over the conduct of the Respondent in respect of her claim for worker’s compensation came within the purview of the DDA. I am satisfied that none of the allegations made by the Applicant against the Respondent amount to allegations of disability discrimination.
12. The Applicant, in my view, has failed to bring herself within the provisions of the DDA. Her complaints are about the processes involved in and the outcome arising from the Applicant’s claim for worker’s compensation. It is to be noted that she resolved the dispute in this regard with the Respondent by an acceptance of $2500 pursuant to consent orders made on 7 July 2009.

Conclusion

13. The Applicant has an abiding conviction that she was treated badly by the Respondent, both in respect of personal dealings she had with members of staff and in how her worker’s compensation claim was treated and finally resolved. However, in her conviction about how she was treated, she has assumed, it would appear principally because of the preparedness of the Commission to take on her complaint under the DDA, that the explanation for her complaint can only lie at the feet of the Respondent on the basis of disability discrimination.
14. I have some sympathy for the Applicant, who has appeared throughout unrepresented, because of her manifest lack of legal expertise and understanding of the law applying and what is necessary to successfully prove a case of disability discrimination. Nonetheless, I am satisfied, based upon the material before me, and indeed the submissions made at court on 18 April 2011, that the Applicant has no reasonable prospect of success and I make that conclusion being mindful of the law applying and the caution expressed by the authorities about summary dismissal.
15. Accordingly, the Application in a Case should be granted and the principal application should be dismissed pursuant to Rule 13.10.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM

Date: 30 August 2011

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[1] [1999] FCA 1101; (1999) 165 ALR 409
[2] [2004] FMCA 185
[3] [2004] FMCA 893

[4] Paramasivam v Grant & Anor [2001] FCA 758, [14] applying Webster v Lampard [1993] HCA 57;

[1993] HCA 57; (1993) 177 CLR 598
[5] [2000] FCA 1565
[6] [1990] HREOCA 8
[7] (1996) 21 ACSR 497
[8] (Court of Appeal, unreported, 16 June 1986)
[9] [2003] HCA 62; (2003) 217 CLR 92