Case: Tyler v Kesser Torah College [2006] FMCA 1
Outcome: referred to
Despite Driver FM making no finding of direct or indirect discrimination by the Department against Mr Moskalev under the DDA, his Honour considered that the Department had given inadequate consideration to the cumulative medical evidence provided to the Commission. With regard to the request by Mr Moskalev for a three or four bedroom free-standing house, his Honour noted at [33] of his judgment that the Department: 'ought to have accepted that there was sufficient evidence of a medical need for detached accommodation to justify restricting the assessment of available private accommodation to that class of dwelling...' His Honour stated at [35]: 'While the claim of indirect or direct discrimination fails the Department should, in my view, reassess Mr Moskalev's entitlement to priority housing on the basis that the available medical evidence points to a medical need for fully detached accommodation... Mr Jungwirth, in argument, indicated that the Department would not find such a direction objectionable. As I noted in Tyler v Kesser Torah College [2006] FMCA 1 , at [108] s.46PO(4) of the HREOC Act is not an exhaustive statement of the orders that may be made by the Court in proceedings under the Act. In my view, even where unlawful discrimination is not established, the Court may, in appropriate circumstances (as here) use s.15 of the Federal Magistrates Act 1999 (Cth) to correct administrative error.' 13 It should be observed that the Department, through its counsel, disavowed the statement that it ' would not find such a direction objectionable' . However, based upon such understanding, his Honour made the following orders: '(1) The respondent shall reassess the applicants' eligibility for priority housing under the respondent's priority housing policy upon the basis that Mr Illya Moskalev has demonstrated a medical need for free standing accommodation with a backyard. (2) The application is otherwise dismissed.' 14 The Department challenges the validity of Order (1) ('the order') on the ground that Driver FM had no power to make it in the absence of a finding of unlawful discrimination under the DDA. The Department submits that the order of Driver FM in effect required the Department to review the exercise of its statutory functions under the Housing Act 2001 (NSW) ('the Housing Act ') and as such the reasoning of Driver FM constituted an impermissible merits review of the Department's determination of the Moskalevs' application for priority housing. 15 The Department also submits that in the absence of a finding of unlawful discrimination no occasion arose for Driver FM to consider any question of judicial review of the Department's administrative actions. It submits that Driver FM erroneously substituted his own opinion by finding at [33] of his decision: 'The Department should have followed the [Department's Housing Appeals] Committee's advice and accepted that a medical need for free standing accommodation had been established'. 16 The Department is a statutory corporation established under the Housing Act . Its affairs are conducted by the Director-General of the New South Wales Land and Housing Corporation (see: s 6(2) of the Housing Act ) who has responsibility for maintaining and overseeing the operations of the Corporation in the name of the Department (see s 6(7) of the Housing Act ). The objects of the Housing Act are to ensure the provision of social housing to persons with demonstrable need for such assistance in New South Wales. The Housing Appeals Committee is an internal committee of the Department established as a second level avenue of appeal. The Department acknowledges that it is bound to observe both State and Commonwealth anti-discrimination legislation in relation to the provision of housing. 24 Driver FM, referring to his decision in Tyler v Kesser Torah College [2006] FMCA 1 considered that even if unlawful discrimination has not been established s 15 of the FMA could be used to correct administrative error. Due to the ancillary nature of orders that may be made under s 15 of the FMA, such observation is valid provided that the Court in making the order is exercising a source of federal jurisdiction. 25 Driver FM had before him a claim alleging discrimination under the HREOC Act. Such claim, if upheld could give rise to relief of a kind proposed by the order. However section 46PO(4) of the HREOC Act does not provide any power to make declarations or orders against a party where there has been no finding of unlawful discrimination. The Court can only make orders ' if the court concerned is satisfied that there has been unlawful discrimination ' (see s 46PO(4)). Accordingly if the claim by the Moskalevs to be appointed to the priority housing list was ancillary only to their claim under the HREOC Act, there was no jurisdiction to make the order following the finding that there was no unlawful discrimination. Since there was no jurisdiction under s 46PO(4) of the HREOC Act, an alternate source of federal jurisdiction other than s 15 of the FMA is necessary to support the order. It is therefore necessary to consider whether the power to make the order lies in any associated jurisdiction of the Court, since the order could only be justified if a separate and different cause of action had been raised which the Court could deal with pursuant to s 18 of the FMA.