ACT Supreme Court provides procedural guidance on human rights claims
Millard v Collins [2021] ACTSC 216
Summary
On 13 May 2021, the plaintiff commenced proceedings under the Human Rights Act 2004 (the 'HRA') by originating application. This decision concerned an application by the defendants seeking an order that proceedings continue as if they had been commenced by an originating claim, rather than an originating application. The Court held that while it was open to the plaintiff to commence proceedings by originating application, the proceedings in this case would have been better started by originating claim and associated pleadings, due to the factual issues in dispute. Separately, the ACT Human Rights Commissioner (the 'HRC') filed an application seeking leave to intervene in the proceedings, which was granted. While predominantly a procedural case, Millar v Collins provides helpful insight on the intricacies of the HRA.
Facts
The plaintiff, Mr Millard, commenced proceedings against the defendants, Alexandra Collins (a lawyer at the ACT Government Solicitor), the ACT Government Solicitor and Canberra Hospital for alleged breaches of sections 10(2), 11 and 12(a) of the HRA. The proceedings were commenced by way of originating application.
The defendants filed an application seeking an order that the proceedings continue as if they had been commenced by an originating claim. This application was opposed by the plaintiff.
For context, the main difference between court proceedings commenced by claim and those commenced by originating application are that proceedings commenced by claim require pleadings. Pleadings are of use to the court when there are serious disputes of fact between the parties, as pleadings narrow the issues of fact to be decided.
Separately, the HRC filed an application seeking leave to intervene in the proceedings, due to references made to sections of the HRA. It was submitted that the HRC could assist the court by putting forward appropriate local and international jurisprudence.
Issues
Therefore, the issues to be determined by the Court were:
Was it open to the plaintiff to commence proceedings via originating application?
Should the proceedings continue as if commenced by originating claim?
Should the HRC be given leave to intervene in the proceedings?
Decision
Was it open to the plaintiff to commence proceedings via originating application?
Rules 33 to 35 of the Court Procedure Rules 2006 (ACT) (the 'Rules') state when to use originating claims and when to use originating applications.
The plaintiff argued that this case falls within rule 34(2), which provides that a proceedings must be started by originating application if "a territory law requires or allows a person to apply to the court for an order or another kind of relief; and the law does not state the kind of originating process to be used". The plaintiff pointed to section 40C of the HRC, as the relevant 'territory law', which provides that the Court may grant the relief it considers appropriate in circumstances where a person claims that a public authority has acted in contravention of section 40B. Section 40C does not specify the kind of originating process to be used. Section 40B(1), in turn, provides that it is unlawful for a public authority to "act in a way that is incompatible with a human right".
The ACT Government Solicitor and Canberra Hospital (the second and third defendants) are both public authorities. The plaintiff claims that the defendants have breached sections 10(2), 11 and 12(a) of the HRA. Therefore, the plaintiff's claim does fall within section 40C.
The plaintiff claimed that these provisions, taken together, necessarily mean that these proceedings should have been commenced by originating application.
The Court noted that rule 407B of the Rules specifically contemplates a 'pleading' in relation to proceedings where s40C applies. This rule "applies to a proceeding to which the Human Rights Act 2004, s 40C applies" and provides that the plaintiff’s pleading must state certain details.
The Court noted however that according to rule 400, r 407B does not apply to proceedings commenced by originating application. The defendants submitted that the absence of a corresponding rule relating to originating applications necessarily means that proceedings relying on s 40C of the HRA must be commenced by originating claim. The Court disagreed with this submission, on the basis that Rule 407B does not state that it applies to every action concerning section 40C of the HRA. Therefore, it was still open to the plaintiff to commence the proceedings by originating application. What Rule 407B does disprove, however, is the plaintiff's assertion that these proceedings must be commenced by originating application. These provisions and rules make clear that proceedings under section 40C of the HRA can be commenced either by originating application or by originating claim.
Should the proceedings continue as if commenced by originating claim?
The Court found that, despite it being open to the plaintiff to commence the proceedings by originating application, the proceedings would have been better started by originating claim and associated pleadings. This is because, as conceded by the plaintiff, there would be factual issues in dispute in the litigation.
Counsel for the plaintiff sought to argue that it would not be onerous to file a statement of claim, but that doing so would be a retrograde step in the litigation process. The Court ultimately agreed that ordering the filing of a statement of claim would be a backwards step, however, due to the lack of detail and particulars in the affidavits filed by the plaintiff to date, requiring the filing of a statement of claim and pleadings would likely save time and expense.
Should the HRC be given leave to intervene in the proceedings?
The Court granted leave for the HRC to intervene in the proceedings.
Justice Elkaim agreed that the HRC could be of assistance to the Court in putting forward useful local and international jurisprudence. The Court also found that the plaintiff's action raised novel considerations, which made it appropriate for the HRC to intervene.
Commentary
This case provides useful guidance for would-be litigants on the operation of the HRA and the proper procedure for commencing proceedings under the Act. The decision illustrates that while there may not be restrictions on the type of originating procedures that may be used, depending on the circumstances and facts of each case, there will be certain originating procedures that are more appropriate than others.
Read the full case here.
Anjali Iyer is a Lawyer at Allens.