Barnes v Northern Land Council & Ors - [2002] FMCA 54

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BARNES v NORTHERN LAND COUNCIL & ORS

[2002] FMCA 54

HUMAN RIGHTS AND EQUAL OPPORTUNITY – Summary dismissal of application – no reasonable cause of action.

Applicant:

RODNEY BARNES

Respondent:

NORTHERN LAND COUNCIL & ORS

File No:

DZ14 of 2001

Delivered on:

10 April 2002

Delivered at:

Darwin

Hearing Date:

6 March 2002

Judgment of:

Brown FM

REPRESENTATION

Applicant:

In Person

Solicitor for the 1^st Respondent:

Mr Hughes

Solicitor for the 2^nd Respondent:

Mr Groves

Solicitor for the 3^rd Respondent:

Mr Lee

Solicitor for the 4^th Respondent:

Mr Macdonald

Solicitor for the 5^th Respondent:

Mr Bamber

ORDERS

That the application filed on the 17^th of August, 2001 be dismissed.
That the applicant pay the respondents cost pursuant to the Federal Magistrates Court Rules, Part 21 Rule 21.10.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
DARWIN

DZ14 of 2001

RODNEY BARNES

Applicant

And

NORTHERN LAND COUNCIL & ORS

Respondent

REASONS FOR JUDGMENT

Introduction

The applicant in these proceedings is RODNEY BARNES. On the 17^th of August, 2001 he made application under the Human Rights and Equal Opportunity Commission Act 1986 (the HREOC Act) alleging unlawful discrimination against the NORTHERN LAND COUNCIL, THE AUSTRALIAN AGRICULTURAL COMPANY, THE NOTHERN TERRITORY POLICE, THE ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION and THE CENTRAL AUSTRALIAN ABORIGINAL LEGAL AID SERVICE.
In his application Mr Barnes described how he had allegedly been discriminated against as follows:
“I was discriminated against by being deprived of my occupation of my traditional home on my ancestral, traditional land. I have been treated as vagrant who has no right to my traditional land.”
In response to a question on the application form regarding his relationship to the various respondents named in the application, he wrote as follows:
“An aboriginal deprived of traditional living space and discriminated against by the above.”
In support of his application, Mr Barnes filed an affidavit which read as follows:
1)“That the respondents have for the last six years acted to prohibit myself and my family from gaining access to my traditional land.
2)They have taken steps to have me removed from my shelter on my traditional land. They have destroyed my shelter on my traditional land and stolen my personal belongings from my destroyed shelter.
3)Discrimination in obtaining jobs and housing, harassment towards me and my children.”
No other affidavit has been filed in support of the application.
On the 19^th of July 2001, a Notice of Termination pursuant to section 46PH(2) of the HREOC Act, was issued by the Human Rights and Equal Opportunity Commission in respect of the applicant’s various complaints against the five named respondents.
Pursuant to section 46PH(1)(b) and (c) of the HREOC Act, the delegate of the President of the Human Rights and Equal Opportunity Commission terminated the complaints made by the applicant on the basis that the complaints were lodged more than 12 months after the alleged unlawful discrimination took place and also that they were lacking in substance.
Attached to the Notice of Termination was a letter from Ms Rocky Clifford, the delegate of the President of the Human Rights and Equal Opportunity Commission; a statement prepared on behalf of the applicant dated the 5^th of June 2001 detailing the applicant’s allegations of discrimination against him; a statement of the applicant and a hand written letter from him to the Human Rights and Equal Opportunity Commission.
In his statement of complaint the applicant alleged as follows:
“I am a traditional owner of land that is on Brunette Downs Station. Some of that land was owned by Australian Agriculture. In 1993 I went to live on that land after my uncle died. After he died his wife and her family lodged a claim for the land with the NLC even though they weren’t traditional owners. Geoff Wagstaff, the manager of Brunette Downs, was willing to talk to me about living there, but the NLC tried to have me kicked off. I wrote a letter to the Attorney General in Canberra, who referred me to a lawyer in Katherine called Mr David Dalrymple. He said it was unlikely I would be able to live on my land because I was “part aboriginal”. We had a meeting with the NLC and the O’Keefe’s, who are the traditional owners of land around there. NLC wanted me to share my land with my uncle’s wife’s family. I approached Gavin O’Brien and Anthony Young at the NLC for legal assistance, they said they couldn’t act for me because they were already acting for someone else in relation to the land, and it would be a conflict of interest. Mr Gavin O’Brien kept referring me to Central Australian Aboriginal Legal Aid Service (CAALAS).
In 1995 I made a land claim with the Northern Land Council for that land. This claim was rejected in late 1998. I believe the NLC have refused me assistance with my claim because I am part aboriginal.
I approached NLC for help in 1995, 1996, 1997 and 2000. They never gave me any assistance. When I approached them in December 2000, they indicated they would use the other traditional owner against me to defeat my claim.
I applied for legal aid through CAALAS in 1993 and December 2000. Both times they said they don’t fund or handle land claims.
The police in Tennant Creek have harassed me every day since 1998. I believe they are doing it because I stood up to them. One time I was in the lock up at Tennant Creek and a policeman named Mr Heath Haves tore a blanket into strips and put it in my cell. I believe he meant for me to hang myself. I spoke to CAALAS about this in 1998 and they referred me to the Northern Territory Police Commissioner.
In April 2001 someone who works at Rocky Pizza had made allegations about my son, and I went to talk to him. The manager’s wife called the police. Constable Pederson who came out abused me and made racial slurs against me, both there and later at the lock up.
I wrote to the NLC three times this year and told them I wanted compensation for my land. They wrote back saying they had offered me a private solicitor and a consultant, and that because I had turned them down they won’t process any other claims I make. They never offered the solicitor or the consultant.
I tried to contact Geoff Wagstaff from Brunette Downs Station late last year and he told me the trespass notice is still valid.”
Ms Clifford wrote in respect of the complaint and her decision to terminate it as follows:
“I have decided to terminate your complaint of racial vilification and discrimination against the Northern Territory Police as I am satisfied your complaint has been adequately dealt with by the Ombudsman of the Northern Territory; I am also satisfied your racial vilification complaint against the NT Police is lacking in substance.
In your letter of complaint you have alleged that CAALAS refused you legal aid on the basis of your race. However, I note a letter to you from the Ombudsman for the Northern Territory to you dated the 26^th of March 2001 states that CAALAS had not refused you legal aid but rather withdrew it when you indicated that you did not want legal representation from CAALAS but wanted to represent yourself.
You also alleged that ATSIC and Australian Agriculture discriminated against you on the basis of your race, but you provided no further specific details of how you were treated less favourably on the basis of your race.
You indicated in your original statement that you believed that NLC rejected your land claim on the basis of your race. I note that this claim was rejected in 1998 however, and that your complaint was lodged with this Commission on 12 June 2001, some three years after this decision.”
The applicant’s statement and hand written letter are lengthy documents full of inchoate complaints made by the applicant but lacking in specific details. The applicant makes many allegations that the NLC and ATSIC have refused to assist him in respect of claims he may have to land at Brunette Downs Station. He does not specify the basis of his claims or give particulars as to why the NLC and ATSIC have discriminated against him. In his statement the applicant says as follows:
“Through the years the NLC and ATSIC and their offspring organisations have attacked me and refuse to fund me or help in any way. They worked hard in trying to isolate me from other aborigines so that I would be vulnerable to attacks from others. The NLC also encouraged the Brunette Downs Station manager and his staff and lawyer to put pressure on us throughout the years. The NLC have tried to use many aboriginal groups to try and fight me off from trying to claim any land on Brunette Downs. I have found out that this is the only way the NLC can fight aborigines otherwise it is too risky for them to be directly attacking them because many aborigines are against these two land councils, especially the NLC.
Over the years I repeatedly asked the NLC for funding under the NT Land Rights Act, so that I could be provided with a solicitor who will act for me and my family, but they continue to come up with excuses why my needs can not be accommodated. I have written to the Attorney Generals Department in Canberra and they too wouldn’t help. I then wrote to the Human Rights Commission in Sydney and received no reply. I wrote to the Clerk of Courts in Alice Springs and called many legal aid agencies throughout Australia; all declined to become involved. I think this is because the NLC has told them they would not pay for my legal aid.
The NLC, the NT Government and ATSIC have continued to vilify me and my applications for land on Brunette Downs. My character seems to be under attack from the NLC, the NT Government and ATSIC and now the Police and I feel like they are all trying to bury me socially. I have found that my suspicions are backed up in Tennant Creek with the support I have received from other aborigines in Tennant Creek and surrounding communities.”
It seems that the Australian Agricultural Company are the present holders of the Pastoral Lease in respect of Brunette Downs Station. It seems reasonably clear that the applicant has been trying to live on a part of this Station for many years.
Pursuant to Section 9 of the Racial Discrimination Act :
“It is unlawful for a person to do any act involving distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, employment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economical, social, cultural or any other field of public life.”
In the various documents to which reference has been made the applicant does not provide specific details as to how he says the Northern Land Council, the Aboriginal and Torres Strait Islander Commission, the Australian Agricultural Company or the Central Australian Aboriginal Legal Aid Service have discriminated against him on the basis of his race, colour, decent or national or ethnic origin. He simply asserts that the organisations concerned have acted in concert against him.
However the genesis of his grievances against the various organisations seems to stem from his failure to be granted a living area on Brunette Downs Station pursuant to the Community Living Areas Act (Northern Territory) or some other piece of legislation; his failure to be granted legal aid in respect of claims in respect of this matter; the subsequent issue of a trespass notice against him by the manager of Brunette Downs Station and general claims of harassment by the Northern Territory Police.
Clearly the connection of any of these matters to any act taken or not taken by any of the respondent organisations on the basis of the applicant’s racial origin is essential to the success or otherwise of the propagation of his claim. It is the position of each of the respondents that on the material so far put forward by the applicant that there is no such sufficient connection between the complaints as made by the applicant and any action that each of them has or has not taken in respect of the applicant and certainly nothing to indicate that any of them has taken any action on the basis of his racial origins.
On the 17^th of September 2001 the application came before Federal Magistrate Mead. She made this order:
1. That further consideration be adjourned to 2.00pm on the 15^th of October 2001.
2. That during the period of the adjournment the applicant:
a.Serve a copy of the application with the attached determination and reasons on the Australian Agricultural Company Limited;
b.File and serve on all respondents an affidavit setting out in detail specific allegations on which the applicant relies for this application, such affidavit to be filed and served on or before 8^th October 2001.
The matter came before the Court again on the 15^th of October 2001, on which occasion the matter was further adjourned in order to allow the Registrar of the Federal Court at Darwin to make inquiries as to whether or not a solicitor was available to assist the applicant with his claim through the provisions of a pro bona lawyer scheme operated by the Northern Territory Law Society. These inquiries proved fruitless.
In the meantime the applicant had not provided the affidavit as ordered by Federal Magistrate Mead on the 17^th of September 2001.
On the 12^th of November 2001 I made the following order:
1.   That the applicant file and serve a further affidavit in which he is to provide to each party further particulars of his claim by 4.30pm on 21 December 2001.
2.   That in the event that the applicant fails to file the affidavit referred to in order 1 hereof each respondent is to file and serve a response to the application as it now stands and indicate what orders it seeks in respect of the matter and serve such response on the applicant, Mr Barnes by 4.30pm on the 8^th of February 2002.
3.   That the further hearing of this application be adjourned to the 6^th March 2002 at 9.30am for further directions.
On the 21^st of February 2002 the applicant wrote letters to each of the respondents. Once again the applicant made broad assertions that he had been harshly treated by each of them. There was no evidence to support his assertion that he had been harshly dealt with on the basis of his race or ethnicity. The affidavit as ordered on the 12^th of November 2001 was not filed by the applicant.
On the 19^th of February 2002 the first named respondent the NLC filed a response indicating that it sought an order that the application herein be dismissed because no reasonable cause of action was disclosed. The application was brought pursuant to Rule 13.10(a) and 4.04(1)(c) of the Federal Magistrates Court Rules. The Northern Land Council also sought its cost in the matter.
On the 1^st of February 2002 the Australian Agricultural Company Limited, the second named respondent filed a response seeking orders in similar terms. Attached to the response was a recommendation of the Community Living Areas Tribunal in respect of an application by Mr Barnes for a living area on the Brunette Downs Pastoral Lease. The finding of the Tribunal was as follows:
“The applicant carries the onus of satisfying us on the balance of probabilities that he has the prerequisite “present need for a community living area”. He has chosen not to provide the additional information requested by the Tribunal. Accordingly on the information available he has not satisfied us that he has a “present need”.
Section 98 directs the Tribunal to “determine whether the applicant is entitled to make this application” and if so “consider the application” and “make recommendations”. This process is consistent with the intent of the Memorandum of Agreement to provide for aborigines in need.
In the circumstances, the Tribunal finds that the applicant is not entitled to make the application.”
It was the submission of the Australian Agricultural Company Limited that in part the applicant’s application herein amounted to a complaint against the finding of the Community Living Areas Tribunal rather than against any action taken by the Company itself.
On the 5^th of March 2002, the third named respondent, the Northern Territory Police filed a response in which it sought orders that the application herein be dismissed. The basis for this application was that the applicant had failed to provide to the Northern Territory Police specific details or particulars in respect of which he alleged that he had been discriminated against by members of the Northern Territory Police on the basis of his race.
On the 30^th of January 2002 the Aboriginal and Torres Strait Islander Commission, the fourth named respondent filed a response seeking an order that the application against it be dismissed. The basis for the application was that the applicant had failed to provide evidence or details of how he had been treated less favourably on the basis of his race by the Commission.
On the 8^th of February 2002 the Central Australian Aboriginal Legal Aid Service, the fifth named respondent filed a response to the application and sought an order that the applicant’s claim against it be dismissed. The basis on which the fifth named respondent sought this order was that the applicant had failed to provide any or sufficient particulars on which the claim was based against the fifth named respondent.
Pursuant to Rule 13.10 of the Federal Magistrates Court Rules:
“The Court may order that a proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding, if it appears to the Court that in relation to the proceeding or claim for relief:
a)      no reasonable course of action is disclosed; or
b)      the proceeding is frivolous or vexatious; or
c)      the proceeding is an abuse of the process of the Court.”
It is on the basis of this rule that each of the respondents seek the dismissal of the applicant’s claim. In a general sense each of them rely on the failure of the applicant to comply with the orders of this Court that he provide an affidavit setting out particulars of his various claims against them and on the lack of specific information set out in the various documents to which reference has already been made.
In these proceedings the applicant has appeared on his own behalf throughout. On each mention of the matter he has appeared before the Court by telephone. It is clear that he has no legal training to speak of and has a rudimentary understanding of legal process. Accordingly, in my view, great caution needs to be taken in respect of an application for summary dismissal against such a self represented litigant.
In MacKellar & Anor v Container Terminal Management Services Limited & Ors (1999) 165 ALR 409 at 415 – 417 Weinberg J. said as follows:
“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.”
And further:
“[Those authorities] confirm that a proceeding should not be dismissed summarily merely on the grounds that it appears, at the early stage of the hearing that 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 the process of the Court.”
In “reMorton: ex parte Mitchell Products Pty Ltd (1996) 21 ACSR 497 at 513 – 515 Sackville J. said:
“The authorities… make it clear that those powers must be exercised with “exceptional caution”. The case must be very clear indeed to justify the summary intervention of the Court, to deny a litigant the opportunity to present his or her case to the Court.”

In this case there is an obligation upon me to satisfy myself that there is no arguable case to be put forward by Mr Barnes in these proceedings before I accede to the applications to dismiss the proceedings. In determining this matter I should not limit myself to the material put forward by Mr Barnes but should look at all the material, including that provided by the Human Rights and Equal Opportunity Commission. My function should be to ascertain whether independently of Mr Barnes there is at this stage an arguable case based on the material before me that could be made out.
I bear in mind what was said by Drummond J. in Ebber v Human Rights and Equal Opportunity Commission (1995) 129 ALR 455 at 468:
“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.”
The exercise before me therefore is whether or not on all the material currently before me, Mr Barnes has adduced sufficient material to demonstrate that he has more than a remote possibility of founding his claim against all or any of the respondents in this matter.
In this case, there is an obligation upon me to satisfy myself that there is no arguable case to be put forward by Mr Barnes in these proceedings before I accede to the applications to dismiss the proceedings. In determining this matter, I should not limit myself to the material put forward by Mr Barnes, but should look at all the material, including that provided by the Human Rights and Equal Opportunity Commission.
In my view, the applicant has failed in either his affidavit filed in support of his application or in any of the letters or other particulars provided by him, to disclose any evidentiary foundation for the claim that any of the respondents have discriminated against him on the basis of his race. Mr Barnes is disappointed at his failure to be granted a living area on Brunette Downs Station. In my view, on the material to hand, there is no plausible argument that the applicant’s failure to get what he wants is due to any action on the part of any of the respondents and further and most importantly as a result of any discrimination by them against Mr Barnes on the basis of his race.
The position is that in the material on which he relies, Mr Barnes broadly asserts that he has been the victim of discrimination. He is unable to support his allegation of discrimination by the provision of any specific details of it. His allegations seem to be based solely on his perception of events and that at the end of the day he has not received the result that he would have wanted. The applicant has been given several opportunities to provide specific details as to how he says each of the respondents have discriminated against him on the basis of his racial origins. He has been unable to provide these particulars. In those circumstance, in my view, it is unfair to each of the respondents to put them to the expense and difficulty of defending such general allegations.
I have no reason to doubt the strength of Mr Barnes’ feelings in the matter. He believes that he has been hard done by in respect of his application to live at Brunette Downs. It seems that he believes each of the respondents has conspired against him to defeat his claim. However, it is not the function of the Court to allow proceedings to continue merely on the basis of such suspicions. Suspicions can not replace evidence or assertion replace fact.
For these reasons I order that the application be dismissed. I order the applicant pay the respondents cost pursuant to the Federal Magistrates Court Rules, Part 21 Rule 21.10.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate: Lynnette Chin

Date: 10^th April 2002