Barghouthi v Transfield Pty Ltd

[2003] HCATrans 647

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S234 of 2002

B e t w e e n -

RAMZI BARGHOUTHI

Applicant

and

TRANSFIELD PTY LIMITED

Respondent

Application for special leave to appeal

CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 APRIL 2003, AT 2.29 PM

Copyright in the High Court of Australia

MR R. BARGHOUTHI appeared in person.

MS C.A. RONALDS:   If the Court pleases, I appear for the respondent.  (instructed by Blake Dawson Waldron)

CALLINAN J:   Thank you, Mr Barghouthi, you may proceed.

MR BARGHOUTHI:   First, your Honour, I would address the Court that the respondent sent me a cheque yesterday for the sum of $1,500.  It is the judgment.  I do not know what they try to do if I cash it out.  Will this mean that I will lose all my rights, or whatever?

CALLINAN J:   I cannot help you with this matter, Mr Barghouthi.  You received a cheque, you say?

MR BARGHOUTHI:   No, they sent me a cheque.

CALLINAN J:   Yes.

MR BARGHOUTHI:   I do not know what they try to do, to direct all the evidence and dismiss the case on the basis that I accept, or whatever.  This never happened, your Honour, and I refuse to take it.

CALLINAN J:   Just wait a moment, Mr Barghouthi.  Take that back and we will just see what Ms Ronalds says.

MS RONALDS:   There was an order from the court below to pay one week’s salary which, due to an oversight, had not been met, and so it was provided yesterday.

CALLINAN J:   What was the order?

MS RONALDS:   One week’s salary.

CALLINAN J:   I see.

MS RONALDS:   So, unfortunately, it slipped through the cracks and it was not known.

CALLINAN J:   Well, there you are, Mr Barghouthi.  This is an amount that the court has held you are entitled to receive.  It is a belated payment and you are entitled to that, no matter what happens.  You should keep it and not trouble about it any more.  It has nothing to do with these proceedings.

MR BARGHOUTHI:   What I am more concerned about, I still have pending proceedings at the Federal Court about the same subject matter from an appeal from the Tribunal.

CALLINAN J:   Look, you are wasting your time.  You have 20 minutes here to make your application and I suggest it is in your interest to proceed to do it.

MR BARGHOUTHI:   Yes, I will go there.  I will go to the criteria of special leave based on section 22 of the Judiciary Act, page 5 of the applicant’s list of authorities.  Sorry, your Honours, page 12, section 35A, it says: 

In considering whether to grant an application for special leave to appeal to the High Court under this Act or under any other Act, the High Court may have regard to any matters that it considers relevant but shall have regard to:

(a)whether the proceedings in which the judgment to which the  application relates was pronounced involve a question of law:

(i)that is of public importance, whether because of its general application or otherwise; or

(ii)in respect of which a decision of the High Court, as the final appellate court, is required to resolve differences of opinion between different courts, or within the one court, as to the state of the law; and

(b)whether the interests of the administration of justice, either generally or in the particular case, require consideration by the High Court of the judgment to which the application relates. 

I am relying on (b) and (a), both of them.  The courts below, in particular the Federal Court, approached the matter as if I was dismissed and that is virtually the same approach that was made also by the Federal Magistrates Court.  So the first question was that I put my application for special leave was on page 32 of the application book. 

The Federal Court of Australia erred in failing to find that I was suspended because of my back injury which is also for the disability as from 1 March 1999 until May, August and November 2000 by Transfield Pty Limited without pay without me knowing till May 2000 on PlesTel’s, Commander Australia Pty Limited now, say so.  That data about me was stored on Transfield WAN system and can be accessed just by mentioning my name to any department within Transfield, which was the reason for me not being able to get any work in 1999, 2000, 2001 and till today’s date, which the Federal Magistrates Court erred in failing to find according to the evidence.  The Federal Court on appeal, according to section 27 – sorry, section ‑ ‑ ‑

HEYDON J:   Are you looking for page 29 of your bundle of materials, section 27 of the Federal Court ‑ ‑ ‑

MR BARGHOUTHI:   Yes, section 27:

Evidence on appeal

In an appeal, the court shall have regard to the evidence given in the proceedings out of which the appeal arose, and has power to draw inferences of fact and, in its discretion, to receive further evidence, which evidence may be taken –

and the rest, your Honours, till the end.  The evidence that went before the Magistrates Court, it is clearly which also the Federal Magistrates Court did not consider which we can have a look at it in my supplementary application book, 255 please. 

The evidence clearly shows that I was suspended off work as a result of back injury on 1 March and the words “suspended” and “employment” does not mean something like payroll, as the witnesses for the respondent rely upon gave such evidence.  It just was false.  The words “suspended” and “employment” means, your Honours, according to the legal dictionary, page 166 of the authorities, suspension of employment:

In relation to employment, the temporary removal of an employee from the duties of the employee’s position.  An employer may order an employee not to attend work for a specified period, as a disciplinary measure in the event of misconduct by the employee, or while suspected misconduct is investigated.

that is what this and ‑

Whether the employer may withhold the employee’s wages during the period of suspension depends on the terms of the contract of employment, and any award or statutory provision applying to the employment.  At common law, an employer has no right to suspend without pay unless the employee consents.

There is a case, as well.  I was suspended without pay without me knowing and I misunderstood the meaning of “suspended”.  Also on page 266 of the supplementary application book, there is an eligible termination payment.  That is when I received it, your Honours, after I applied twice to get back to work.  The Federal Court in the application book said the magistrate made an error of law at page 23, where his Honour:

Having established that this Court has jurisdiction in these proceedings it must be determined whether there were any errors of law in the findings of the Magistrate.  As noted above the Magistrate found, at [11], that there was no evidence before him on which he could be satisfied that Mr Barghouthi was dismissed from his employment.

This approach, your Honours, is contrary to my evidence.  My evidence clearly, which I pointed to, that I was suspended, not dismissed.  The Federal Magistrates Court approached the matter where it was stated that the applicant’s case relies upon his affidavit.  The applicant is that he was in fact dismissed from his employment when he advised – this was a dictation by the respondent, your Honours, not me. 

My case was, I was suspended.  They know how to abuse the process.  They tell the judges.  I did not reply because I am not a lawyer, I did not know how to put my submissions.  “The applicant’s case was that in fact dismissed from his employ” – this is contrary to the evidence which I have pointed to and contrary to my affidavit which I had in the Magistrates Court and contrary to my application to Human Rights Commission.

My affidavit appears at 242 of the supplementary application book, your Honours.  There is clear evidence that:

On 16-02-1999 I saw Dr Frank Machart an Orthopaedic Specialist.  I understood from him that I have a disc injury and I was referred to physiotherapy.  From the 17^th-02-1999 –

I continue –

I started my treatment on daily basis.  I used to go for treatment –

If I can submit this document, I would submit it, your Honours, without speaking about it.  You will have to see the effect of it.  Anyway, it is clear that superannuation records show that I was suspended and the amount of money that was paid to me.  So to approach my case as being “dismissed” instead of being “suspended” as the first magistrate constitutes an error of law, your Honours, because if I would refer to the authority of this Court, page 150, I will not put the whole case, just the list of authorities, your Honours.

CALLINAN J:   The authorities.

MR BARGHOUTHI:   The list of authorities.  It says here at 24:

[I]f the facts inferred . . . from the evidence . . . are necessarily within the description of a work or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law.

Now, what “suspended” would mean in employment in terms of the Disability Discrimination Act or in terms of Human Rights Act, we can look at not only the sections that their Honours, the Federal Court and Federal Magistrates Court, rely upon; there are more sections, your Honour. 

If we open the Disability Discrimination Act, prohibition is very discrimination.  I was suspended because of my back injury and this is clear will be also a breach of section 15(2), page 79, says:

It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee’s disability or a disability of any of that employee’s associates:

(a)  in the terms or conditions of employment that the employer affords the employee –

this is also a question of this appeal because in the terms of the contract which his Honour, I do not want just to – I will give now about the suspension –

(b)  by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment –

this is what suspension would do to someone.  “Suspension” means disciplinary action and it also would mean detriment and would cause loss and harm and that is clear in the legal dictionary, your Honour –

(d)  by subjecting the employee to any other detriment.

“Suspension” would also mean detriment, your Honour, because if we check the legal dictionary, “suspension” means “disciplinary measure” and “Disciplinary action”, 153:

Employment  Reasonable lawful action taken against an employee in the nature of –

Also “Detriment” at page 152 means:

Prejudice, loss, or material disadvantage.
Civil and political rights  Prejudice or loss including humiliation or denigration:  for example (SA) Equal Opportunity Act 1984.

To give false evidence in Court also detriment and it is victimisation.  His Honour, at page 17 of his judgment, his Honour Justice Hill:

On 4 January 1999 the appellant entered into a “Project Specific Contract of Employment” with the respondent to work on the “Telstra CAN 2001 Project”.

It is clear from this finding by his Honour that the project is the 2000 project and I obtained that such a project on 1999.  This is a three years project and the terms of the contract according to industrial relations law should not be less than three weeks if it is a three years period or at least one week.  The offer was to provide me an hour notice which I amended to one week.  This is discriminatory because if you open the meaning of “discrimination” in the Human Rights Act, page 44 ‑ ‑ ‑

CALLINAN J:   You have supplementary material, is it, Mr Barghouthi, that you are referring us to?

MR BARGHOUTHI:   No, no, the list of authorities:

discrimination, except in Part IIB means:

(a)    any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion ‑ ‑ ‑

CALLINAN J:   Mr Barghouthi, your time is up.  I will give you another minute or so.  Is there anything further you want to say that is not in your material?

MR BARGHOUTHI:   Yes, I have a lot to say, your Honour.

CALLINAN J:   You only have 20 minutes and that time ‑ ‑ ‑

MR BARGHOUTHI:   Can we extend that?

CALLINAN J:   No.  I will give you another minute.

MR BARGHOUTHI:   In general, your Honour, the evidence was not looked at by the judges and the findings of his Honour Justice Hill and his approach to the matter and I also submit my statement of the special leave

questions to be raised, whether the Federal Court and trial judge erred in not considering the evidence that I was called a liar and ‑ ‑ ‑

CALLINAN J:   We have read that from your book.

MR BARGHOUTHI:   Yes, so all that ‑ ‑ ‑

CALLINAN J:   Yes, thank you, Mr Barghouthi, your time is up.  We need not hear you, Ms Ronalds.

The applicant seeks leave to appeal from a decision given on an appeal to the Federal Court in proceedings under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) in which he was partially successful. The issues which he would wish to argue here are factual ones. Those facts were carefully reviewed by the Federal Court. Any appeal to this Court would have no prospects of success. The application must be dismissed.

Do you have any further application, Ms Ronalds?

MS RONALDS:   I seek costs.

CALLINAN J:   There is nothing you can say about costs, is there, Mr Barghouthi?

MR BARGHOUTHI:   Sorry?

CALLINAN J:   Costs are sought against you.  There is nothing you can say in relation to those?

MR BARGHOUTHI:   They destroyed my life for the last four years.

CALLINAN J:   Yes, the application is dismissed with costs.  Thank you.

MR BARGHOUTHI:   So what I can do about?

CALLINAN J:   That is the conclusion of your matter, Mr Barghouthi.

MR BARGHOUTHI:   Is it possible that ‑ ‑ ‑

CALLINAN J:   There is nothing further to be said.

MR BARGHOUTHI:   ‑ ‑ ‑ this Court can review – refer back to the Federal Court to be reviewed?

CALLINAN J:   Mr Barghouthi, your case is finished.  There is nothing further for you to say.  Thank you.  Would you please adjourn the Court.

AT 2.53 PM THE MATTER WAS CONCLUDED