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Matthews v Commissioner, Queensland Police Service[2005] QSC 122

Matthews v Commissioner, Queensland Police Service[2005] QSC 122

 

SUPREME COURT OF QUEENSLAND

 

CIVIL JURISDICTION

 

McMURDO J

 

No BS2817 of 2005

 

RUSSELL GORDON HAIG MATTHEWS

Applicant

and

 

COMMISSIONER BOB ATKINSON

QUEENSLAND POLICE SERVICE

Respondent

 

BRISBANE

DATE 27/04/2005

 

ORDER

 

HIS HONOUR:  This is the return of an originating application filed by Mr R G H Matthews against the Commissioner of the Queensland Police Service.  The application seeks three orders by way of final relief.  It seeks two declarations and an injunction.

 

The applicant's case is that he suffers from a disability discrimination which is unlawful as contrary to The Disability Discrimination Act 1992 (Cth).  His disability, according to the evidence, comes from a brain injury which, according to a letter from Dr R J Moyle of the University Health Service of the University of Queensland, affects his lifestyle and contributes to his feeling of isolation.

 

The applicant maintains that he needs to go anywhere accompanied by his two dogs.  According to Dr Moyle:

 

"Without the dogs he would feel bereft and his life would lack the only positive interactions he seems to have.  He takes them everywhere and provides for their care."

 

The applicant is undertaking some study at the University of Queensland.  In the course of his submissions he told me that he was pursuing a PhD.  He therefore is a frequent visitor to a library or libraries at the University of Queensland and a problem which has arisen there, as it has elsewhere, is that his dogs are not welcome.  He is told when he goes there that he is not to bring the dogs into the library and, on occasions, the police have been called to insist upon the dogs not being there.  Similarly, he has encountered problems travelling with his dogs on public transport within Brisbane and again that has resulted in the police being called.

 

He therefore maintains that he is the subject of discrimination by not being able to access premises and use facilities, which discrimination contravenes section 23 and 24 of the Act.

 

In turn, he says that the Commissioner of Police is a proper respondent because the Police Service has been called upon to effectively apply what he says is this unlawful discrimination. 

 

He seeks a declaration that he is entitled to access premises, areas and spaces, including public transport, accompanied by his dogs.  He seeks an injunction to restrain the respondent, the Commissioner of Police, from removing him or requiring him to remove himself from premises, areas or spaces, including public transport, when he is accompanied by his dogs.  He also seeks a further declaration:

 

"The applicant is owed a fiduciary duty by the defendant and his servants and agents."

 

The application is in all respects opposed by the respondent.  The principal basis for the respondent's opposition is that he is not an appropriate party and that this Court is not the appropriate forum for any complaint of such discrimination.  Instead, it is submitted the appropriate avenue of complaint is through the Human Rights and Equal Opportunity Commission and, in particular, under part IIB of the Human Rights and Equal Opportunity Commission Act 1986 (Cth).

 

In my conclusion, the application must be dismissed for the reason advanced by the respondent and for further reasons.

 

The applicant would have to establish first the factual matter of unlawful discrimination before asking the Court to exercise its discretion in his favour to grant declaratory and/or injunctive relief.  As to factual issues, it is my view that the present proceedings, at least as they are now constituted, would not permit any necessary factual finding to be properly made.

 

Accepting for present purposes that the applicant is disabled, the case that there was discrimination would have to be shown to be within either section 6 or section 9 of The Disability Discrimination Act.  Section 6, which is headed Indirect Disability Discrimination, has as an essential element the fact that it "is not reasonable having regard to the circumstances of the case" that there be the relevant discrimination.  It involves, in other words, a consideration of the facts and circumstances of the individual case to assess whether the discrimination in that instance, if it exists, is unreasonable.  That is not a matter which could be  assessed upon the present material, and there is more than one case of alleged discrimination which is alleged.  Further, the parties who are allegedly discriminating are not before the Court.  And by this originating application, the applicant seeks final relief by a summary hearing.

 

Section 9 provides that for the purposes of the Act a person discriminates against a person with a visual disability, a hearing disability or any other disability if the aggrieved person is treated less favourably because of the fact that the aggrieved person possesses or is accompanied by a guide dog or a dog trained to assist the aggrieved person in activities where hearing is required, or "any other animal trained to assist the aggrieved person to alleviate the effect of the disability or because of any matter related to that fact".

 

The applicant does not have a visual or hearing disability and it is not at all clear to me that his dogs are "trained to assist the aggrieved person to alleviate the effect of the disability".  There is no evidence of any training apart from the applicant's own statement to me, in the course of his submissions, that he trains his dogs.  It isn't plain that they are dogs trained in the sense which is relevant for the operation of section 9.

 

For these reasons at least, it is far from clear that the applicant could establish that he has been the victim of the unlawful discrimination of which he complains.  That in itself would put paid to any prospect of obtaining final relief in a summary way by this originating application.

 

The further difficulty, strongly emphasised by counsel for the present respondent, is that this is an inappropriate forum.  I accept that submission.  The provisions of Part IIB of The Human Rights and Equal Opportunity Commission Act are clearly appropriate for a circumstance such as this where there are complaints of unlawful discrimination.  Not only is that a specialist regime set up for a context such as this but also it provides for particular procedures seen as appropriate for the resolution of such disputes.

 

In particular, it provides for a particular process of conciliation as well as dispute resolution.  The procedure of complaint to the Commission does not exclude this Court's jurisdiction, but in my view its availability provides a powerful discretionary basis for refusing the applicant relief.

 

In addition, the absence of relevant parties such as the University of Queensland and those responsible for the operation of public transport, is a critical consideration in the exercise of the discretion to grant or not grant declaratory and injunctive relief.  After all, the essence of the applicant's complaint is that parties such as those are the ones perpetrating the unlawful discrimination.

 

When these difficulties were explained to the applicant in the course of his submissions, he asked that I adjourn his application so that he could join other parties such as the University of Queensland and in effect seek to rebuild his case as one in which he could seek to prove the facts of the alleged discrimination in several instances.  However, the view I have is that he should pursue his rights at least for the time being before the Commission and that the better course is to dismiss this originating application.

 

There is also the applicant's request for a declaration that he is owed a fiduciary duty by the Commissioner of Police and "his servants and agents".  There is no basis for that application and there was no particular line of legal argument by which the applicant attempted to support it.

 

For these reasons then, the originating application filed on 27 April 2005 will be dismissed.  No order as to costs is sought and there will be no order.

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Editorial Notes

  • Published Case Name:

    Matthews v Commissioner Queensland Police Service

  • Shortened Case Name:

    Matthews v Commissioner, Queensland Police Service

  • MNC:

    [2005] QSC 122

  • Court:

    QSC

  • Judge(s):

    McMurdo J

  • Date:

    27 Apr 2005

Appeal Status

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