Barnes v Northern Territory Legal Aid Commission
[2012] FMCA 274
•13 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BARNES v NORTHERN TERRITORY LEGAL AID COMMISSION | [2012] FMCA 274 |
| PRACTICE AND PROCEDURE – Summary dismissal – whether compliance with earlier orders – whether any reasonable prospects of success – alleged unlawful racial discrimination. |
| PRACTICE AND PROCEDURE – Proper respondents to application – whether respondents to complaint made to Australian Human Rights Commission – whether respondent to complaint terminated by Australian Human Rights Commission – adjournment – extension of time – appointment of lawyer – pro bono referral. |
| HUMAN RIGHTS – Unlawful racial discrimination alleged – provision of legal services – legal aid. |
| Australian Human Rights Commission Act 1986 (Cth), ss.46PH(1) & (2), 46PO(1) & (3), 46PR Criminal Code (NT), s.410 Human Rights and Equal Opportunity Commission Act 1986 (Cth) Federal Court of Australia Act 1976 (Cth), ss.31A(2)(b), 32AB Federal Court Rules 1976 (Cth), O.81 r.5 Federal Magistrates Act 1999 (Cth), ss.3, 17A, 42 Federal Magistrates Court Rules 2001 (Cth), rr.1.03, 11.11, 12.01, 12.02, 12.03, 13.03A(1)(a), 13.03B(1), 13.10 Racial Discrimination Act 1975 (Cth), ss.9(1) & (1A), 13, 18A |
| Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Bropho v State of Western Australia [2004] FCA 1209 Fair Work Ombudsman v Kentwood Industries Pty Ltd [2010] FCA 98 Gama v Qantas Airways Limited (2006) 195 FLR 475; [2006] FMCA 11 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372; [2008] FCAFC 60 Re East; Ex parte Nguyen (1998) 196 CLR 354; [1998] HCA 73 |
| Applicant: | RODNEY BARNES |
| Respondent: | NORTHERN TERRITORY LEGAL AID COMMISSION |
| File Number: | DNG 43 of 2011 |
| Judgment of: | Lucev FM |
| Hearing date: | 30 March 2012 |
| Date of Last Submission: | 30 March 2012 |
| Delivered at: | Perth (by mobile telephone and by video-link to Darwin) |
| Delivered on: | 13 April 2012 |
REPRESENTATION
| Applicant: | In person (by mobile telephone) |
| Counsel for the First Respondent: | Ms P Chong (by Perth-Darwin video-link) |
| Solicitors for the Respondent: | Hunt and Hunt Lawyers |
ORDERS
That the applicant’s oral applications in a case made at hearing on 29 March 2012 for:
(a)the adjournment of these proceedings, alternatively, an extension of time, to allow the filing of further materials; and
(b)the appointment by the Court of a lawyer to represent the applicant, alternatively, for a referral under r.12.03 of the Federal Magistrates Court Rules 2001 (Cth) (“FMC Rules”) to a lawyer on the Court’s pro bono panel,
be dismissed.
That the respondent’s application in a case filed 8 March 2012 be upheld.
That the application filed in the Federal Court of Australia on 25 May 2011, and transferred to this Court by order of the Federal Court on 17 August 2011, be dismissed under rules 13.03B(1)(a) and 13.10(a) of the FMC Rules.
Costs to be determined on the papers with:
(a)the respondent to file and serve written submissions on costs by 27 April 2012; and
(b)the applicant to file and serve written submissions on costs by 4 May 2012.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
DNG 43 of 2011
| RODNEY BARNES |
Applicant
And
| NORTHERN TERRITORY LEGAL AID COMMISSION |
Respondent
REASONS FOR JUDGMENT
Application in a case
The Northern Territory Legal Aid Commission[1] has filed an application in a case seeking that the application be dismissed and that Mr Barnes pay the Legal Aid Commission’s costs of the proceedings.
[1] “Legal Aid Commission”.
In very broad terms the application alleges unlawful racial discrimination, contrary to the Racial Discrimination Act 1975 (Cth),[2] against Mr Barnes and his son, Mr Rodney Barnes Jr, both Aboriginal Australians, by the Legal Aid Commission.
[2] “RD Act”.
History of the litigation
The history of the litigation is evident from the Court documents and an affidavit of Chris Osborne affirmed 7 March 2012,[3] filed in support of the application in a case.
[3] “Ms Osborne’s Affidavit”.
These proceedings were commenced by application filed in the Federal Court of Australia on 25 May 2011, and served on the Legal Aid Commission on 1 June 2011.
The originating application names the Legal Aid Commission, the Northern Territory Police Force and the Northern Territory Government as respondents. The nature of the subject of the application is said to be “prejudice by those named above”, that is, the above named “respondents”.
The details of the claim are as follows:
That my son, Rodney JR sentence is cut, or he has a right to appeal his sentence. That I and my family is able To Take legal action against The NT Police Force as well as the Northern Land Council and the Australian Agricultural Company as well against the NT Government for persecution and prejudice.
Neither the Northern Land Council nor the Australian Agricultural Company were named respondents. However, under the filing and service section of the application it was indicated that it was intended to serve the application on the Legal Aid Commission, the Northern Territory Police Force, the Australian Agricultural Company care of the Northern Land Council, and the Northern Territory Government.
In accordance with O.81 r.5 of the Federal Court Rules 1976 (Cth)[4] a Form 167, being a “Claim under the Australian Human Rights Commission Act 1986 alleging unlawful discrimination” was annexed to the application. The Form 167 identified Mr Barnes as the applicant. Question 7 of the Form 167 asks “Against whom are you bringing this claim?” Mr Barnes identified the Legal Aid Commission, the Northern Territory Police and the Northern Territory Government.
[4] “FC Rules”.
The Form 167 asks for the discrimination to be described, and Mr Barnes describes it as follows:
N.T Government failure to ACT on my complaint against police and NT Legal Aid.
Denial of legal aid for my son for an appeal against His Sentence.
Persecution by NT police Towards me and my family.
Asked to detail the remedy being sought Mr Barnes wrote as follows:
That my son sentence is cut or, he has a right to appeal his sentence.
To take legal action against NT police.
Mr Barnes swore an undated affidavit, filed on 25 May 2011,[5] in relation to the application. Mr Barnes’ Affidavit names as respondents the Legal Aid Commission, the Northern Territory Police Force, the Northern Territory Government, the Northern Land Council and the Australian Agricultural Company. The body of Mr Barnes’ Affidavit provides as follows:
[5] “Mr Barnes’ Affidavit”.
The continuing persecution by those named above, against me and my family To exercise our rights in our country and for denying us The right to use the law for our benefits.
To live freely without racism.
To bring To account Those who were actively persecuting me and my Children for denying us our rights because of our race.
I would also like to seek compensation.
As required by s.46PO(1)(b) of the Australian Human Rights Commission Act 1986 (Cth),[6] a copy of the Notice of Termination given under s.46PH(2) of the AHRC Act was annexed to the application,[7] together with a copy of the reasons[8] for the issuance of the Notice of Termination and a copy of the complaint[9] made to the Australian Human Rights Commission[10] by Mr Barnes.
[6] “AHRC Act”.
[7] “Notice of Termination”.
[8] “Notice of Termination – Reasons”.
[9] “Complaint”.
[10] “AHRC”.
The Notice of Termination – Reasons state that the President of the AHRC believed there was no reasonable prospect of the Complaint being settled by conciliation.[11] The Complaint which was terminated was a complaint “on behalf of yourself [Mr Barnes] and your son Mr Rodney Barnes Junior against NTLAC [Northern Territory Legal Aid Commission] in which you alleged racial discrimination” under the RD Act. The Notice of Termination, and the Notice of Termination – Reasons, are dated 19 April 2011.
[11] AHRC Act, s.46PH(1)(i).
The original Complaint, dated 8 December 2010, is in the following terms:
I would like to make a Complaint, against the N.T legal aide Commission. headed by Mr Russell Goldflam, and the N.T Government for discrimination for failing To act To insure my son Rodney JR who is incarserated at The Alice Spring prison in getting a fair trial and The right to appeal his sentence and for failing to act on my Complaint against two police officer who swore at me, at my home.
I believe Their action against me and my son is because we are aboriginal and because of my continuning Complaints against police and The legal aide department.
I would be willing to provide more information if Required to do so.
I am still continually Harrassed by police.
The Complaint seemingly followed a letter written on 7 December 2010 by the Legal Aid Commission to Mr Barnes as follows:
I spoke to you by telephone on about 15 November 2010. You instructed me as follows:
On 25th September 2010 at 2pm at 7 Wolseley St, I was sitting at home with my son. A police officer was driving past in a car, in civilian clothes. A Nissan Patrol trayback. A woman was in the car too. I didn’t hear anything. I could see he was swearing at me. On 26th September, another policeman in a red Pajero in civilian clothes (a singlet or T shirt) drove in front of my yard, and stopped. He was looked at me through the window and was swearing at me. I couldn’t hear anything. I believe he was saying words like ‘Fuck’ and ‘cunt’. Since then that policeman always stares at me, and I saw him point at me. It scared and shocked me.
I then spoke to your son Russell Barnes by telephone about this matter on about 17 November 2010. Russell Barnes instructed me as follows:
The other month, me and dad were at the front yard of my house at 7 Wolseley St. Dad was on a chair. I was standing facing the road. A police officer in his personal vehicle, a Nissan Patrol ute drove up. He was looking into our yard. As he approached, drove real slow, he was looking at dad, and he mimed the words ‘Fuck You’. Couldn’t hear what he said, but I could sort of lip-read him. I think a woman was in the car. He drove past really slowly. He swore at my father. He’s a big bloke: tall, shaved head, bulky, no facial hair, singlet. I recognised him as being a policeman, but I don’t know his name. He’s still in Tennant Creek. I saw him the other day.
Having taken these instructions, I now confirm that I advised you that I consider that on the basis of these instructions there is no reasonable prospect of proving that you have been harassed by a Tennant Creek police officer and that accordingly, in my opinion you would not be eligible for a grant of legal aid to complain to police about these incidents. If you wish, you can complain to the police about these incidents by writing to:
Superintendent, Ethical & Professional Standards Command, Northern – PO Box 39764, Winnellie, NT 0821.
Fax: 89010322; phone 89010320; email [email protected].[12]
[12] “Legal Aid Commission Letter”.
The matter was mentioned in the Federal Court on 11 July 2011. Following applications by Counsel for each of the Northern Territory Government, the Northern Territory Police, the Northern Land Council and the Australian Agricultural Company, the Federal Court ruled that, under s.46PO of the AHRC Act, the Northern Territory Police, the Northern Territory Government, the Northern Land Council and the Australian Agricultural Company had not properly been joined as respondents to the proceedings.[13] An application by Mr Barnes for the Federal Court to “appoint” a lawyer for him was not acceded to by the Federal Court.[14] Issues were then raised by the Legal Aid Commission in relation to the adequacy of the material filed by Mr Barnes, and in particular that there was no evidence in relation to the allegations and no cause of action was disclosed.[15] An order was made by the Federal Court in the following terms:
1. The applicant is to file and serve further material upon which he wishes to rely by 4.00pm (CST) on 12 August 2011.
[13] Transcript, 11 July 2011, pages 8-9 (see also page 10).
[14] Transcript, 11 July 2011, pages 10-11.
[15] Transcript, 12 July 2011, page 12.
The Legal Aid Commission understands that some material may have been filed in response to this order, but the Legal Aid Commission was not, and has not, been provided with any further material.[16] Amongst the papers transmitted from the Federal Court to this Court with the transfer of the matter there were no further affidavits or materials filed by Mr Barnes in relation to the Complaint.
[16] Ms Osborne’s Affidavit, paras.3-4.
There was a further mention in the Federal Court on 17 August 2011 and the matter was transferred to this Court under s.32AB of the Federal Court of Australia Act 1976 (Cth).[17]
[17] “FC Act”.
The matter was listed in this Court for a first court date on 8 September 2011 at which time the Court ordered that:
1. Any amended application be filed and served by 6 October 2011.
2. Any affidavits in support of the amended application be filed and served by 6 October 2011.
3. The matter otherwise be adjourned to a telephone directions hearing on 15 September 2011 at 9:00am WST / 10:30am CST.
4. Costs of today be reserved.
On 15 September 2011 the matter was adjourned by this Court to a further directions hearing on 14 October 2011.
On 14 October 2011 the following orders were made:
1. The applicant file and serve:
a) any amended application; and
b) any further affidavits,
by 4 November 2011.
2. The respondent file and serve:
a) any response; and
b) any affidavits,
by 25 November 2011.
3. The matter be referred for mediation before a Registrar of this Court on a date to be fixed by that Registrar.
4. If mediation does not resolve the matter:
a) the applicant to file and serve an outline of submissions by 24 February 2012.
b) the respondent to file and serve an outline of submissions by 23 March 2012.
c) the matter be listed for hearing in Darwin on a date to be fixed and advised to parties.
5. There be liberty to apply.
6. Costs be reserved.
The parties were advised on 12 October 2011 of a listing date for hearing on 9 May 2012 in Darwin. Mediation was conducted on 25 November 2011 and did not resolve the matter.[18]
[18] Ms Osborne’s Affidavit, paras.9-10.
The Legal Aid Commission says that it has not received any amended application or affidavits in support of any amended application, nor has it received any submissions. On 16 February 2012 the Legal Aid Commission’s lawyers forwarded a letter to Mr Barnes referring to the orders of 14 October 2011 in relation to any amended application and further affidavits. That letter advised that the Legal Aid Commission intended to apply to this Court to have the application dismissed if Mr Barnes did not file any further documents properly setting out his claim, and that that application would be made after 14 days from the date of the letter (16 February 2012) if further documents sufficient to justify the claim had not been received by the Legal Aid Commission.[19] The Legal Aid Commission’s lawyer says that Mr Barnes rang her and advised that he did not agree with the letter, and that the Legal Aid Commission should make the application,[20] that being the application in a case which has now been made.
[19] Ms Osborne’s Affidavit, paras.11-12 and Annexure A.
[20] Ms Osborne’s Affidavit, paras,13.
Despite the Court’s orders of 8 September 2011 and 14 October 2011 Mr Barnes has not filed:
a)any amended application;
b)any further affidavits; and
c)an outline of submissions.
At the hearing of the application in a case Mr Barnes indicated to the Court that he had forwarded “two papers”[21] to the Court. The Court is aware that Mr Barnes has forwarded a two page letter to the Court, dated 30 March 2012.[22] It is not apparent whether the 30 March 2012 Letter has been sent to or served upon the Legal Aid Commission. In any event, the Court has determined that, it can have regard to the 30 March 2012 Letter, by reason of s.46PR of the AHRC Act, which provides that proceedings in the Court “are not bound by technicalities or legal forms”. The capacity to act informally and without regard to legal technicalities is not however the provision of a licence to disregard legal principles.[23] The Court must still exercise its powers judicially.[24] The 30 March 2011 Letter provides as follows:
[21] Transcript, 30 March 2012, page 4.
[22] “30 March 2012 Letter”.
[23] Corcoran & Ors v Bansley Pty Ltd (2011) 250 FLR 323 at 330 per Lucev FM; [2011] FMCA 440 at para.17 per Lucev FM, citing Zoological Board of Victoria v Australian Liquor, Hospitality and Miscellaneous Workers Union (1993) 49 IR 41 at 48 per Moore VP.
[24] Walker v State of Victoria [2012] FCAFC 38 at para.81 per Gray J.
I write in response to Miss Chris Osbourne of Hunt/Hunt lawyers application to the Court to dismiss my Application on behalf of my son Rodney Eric John Barnes.
At present I have spoken to a lady at the Darwin Office of The NT legal aide Commission requesting legal aide on behalf of My self and my Son after which I was then contacted by Mr Russell Goldflam of Alice Springs, where he advised that I would be contacted by someone regarding my request presently I am arguing Mr Russell Goldflamm is discriminating against my Son, by their Representation of my Son in Court and their Failure to mount any appeal on his sentence and his behalf.
I believe the continuing denial of legal aide towards My Son and my self is proof of the prejudice and discrimantion by the NT legal aide Commission and The Supreme Court and The NT prosecution and the NT police.
I would be better to be provided legal aid to present further arguements on behalf of my Son.
Thank you.
At hearing of the application in a case Mr Barnes requested that the matter be adjourned for another month to allow him to file further materials, and for him to seek legal aid to assist him in his case, or have the Court “appoint” a lawyer for him. Mr Barnes also submitted that the Court had told him on previous occasions that he had a case, and that he ought not be denied the opportunity to put that case before the Court.[25]
[25] Transcript, 30 March 2012, pages 6-7.
Jurisdiction of the Court
The AHRC Act provides an exclusive regime for remedying contraventions of the RD Act.[26]
[26] Re East; Ex parte Nguyen (1998) 196 CLR 354 at 365-366 per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ; [1998] HCA 73 at paras.26 and 31-32 per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ; Bropho v State of Western Australia [2004] FCA 1209 at para.52 per RD Nicholson J; Perry v Howard [2005] FCA 1702 at para.37 per Siopis J.
Section 46PO(1) and (3) of the AHRC Act provides as follows:
(1) If:
(a) a complaint has been terminated by the President under section 46PE or 46PH; and
(b) the President has given a notice to any person under subsection 46PH(2) in relation to the termination;
any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Magistrates Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.
(3) The unlawful discrimination alleged in the application:
(a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or
(b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.
Only an “affected person” can make an application to this Court.[27] Mr Barnes as the complainant, and a person allegedly discriminated against, at least in relation to one aspect of the matter, is an “affected person” under s.46PO(1) of the AHRC Act.
[27] Oorloff & Anor v Lee & Ors [2004] FMCA 893 at para.55 per Walters FM (“Oorloff”). In Oorloff, where a wife sought to be party to an application to this Court when the complaint to the HREOC was made only by the husband, the wife’s complaint was dismissed for want of jurisdiction: Oorloff at paras.54-56 per Walters FM.
In Campbell v Kirstenfeldt,[28] this Court observed that the scope of the application made to this Court is limited by s.46PO(3) of the AHRC Act.[29]
[28] (2008) EOC 93-515; [2008] FMCA 1356 (“Campbell”).
[29] Then the Human Rights and Equal Opportunity Commission Act 1986 (Cth).
By reason of s.46PO(3)(b) Mr Barnes is permitted to allege in this Court facts different to those alleged in the Complaint, provided that the newly alleged facts are not different in substance from the formerly alleged facts.[30] These provisions do not limit this Court to considering the Complaint as initially filed with the AHRC, but rather the Complaint as ultimately considered by the AHRC.[31] No doubt difficulties may arise with a complaint generally expressed or lacking details.[32] Given that complaints will often not be prepared by lawyers, and ought not be construed as if they were pleadings, this kind of difficulty will be for the Court to determine as to whether the evidence arises out of the same, or substantially the same, acts, omissions or practices that were the subject of the terminated complaint.[33]
[30] Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573 at 580-581 per Katz J; [2000] FCA 1531 at para.39 per Katz J (“Fuji Xerox”).
[31] Travers v State of New South Wales [2000] FCA 1565 at para.8 per Lehane J (“Travers”); Ho v Regulator Australia Pty Ltd [2004] FMCA 62 at para.4 per Driver FM; Hollingdale v Northern Rivers Area Health Service [2004] FMCA 721 at para.10 per Driver FM.
[32] Gama v Qantas Airways Limited (2006) 195 FLR 475 at 480 per Raphael FM; [2006] FMCA 11 at para. 9 per Raphael FM (“Gama”). This Court’s decision in Gama was appealed, but not this aspect of the decision: Qantas Airways Limited v Gama (2008) 167 FCR 537; [2008] FCAFC 69.
[33] Travers at para.8 per Lehane J; Gama FLR at 480 per Raphael FM; FMCA at para.9 per Raphael FM; Campbell EOC at 74, 770 per Lucev FM; FMCA at paras.14-15 per Lucev FM. For a more recent discussion of the scope of s.46PO(3) in this regard, see Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118 at paras.43-48 per Marshall, Rares and Flick JJ, and especially at para.48 where it was said, in the context of a pleading amendment application, that it “is not appropriate for a court considering an application for leave to amend to preclude an amendment that raises an arguable claim for relief, especially where the terms of s.46PO(3)(b) (in particular) permit of some flexibility…the terms of a complaint made to the Commission should not be read with the same strictures as apply to a pleading in a Court.”
Consideration – preliminary issues
Before moving to consideration of the application in a case made by the Legal Aid Commission, it is necessary to deal with some preliminary issues. In the course of the hearing Mr Barnes made oral applications in a case with respect to an adjournment, or an extension of time, in which to file further materials, and also sought that the Court “appoint” a lawyer for him. Both of those issues are dealt with below as preliminary issues. Also dealt with is the question of the proper respondent, which, by reason of Mr Barnes’ continuing references to alleged discrimination by persons other than the Legal Aid Commission, must be addressed.
Adjournment / extension of time
Mr Barnes made an oral application in a case in the course of the hearing for the proceedings to be adjourned for a period of one month, or, alternatively (even though he did not express it in this way), for an extension of time, in which to file further papers in this matter.
Any application for adjournment must be considered in the relevant statutory, factual and case management context. The role and mode of operation of this Court as set out in the Federal Magistrates Act 1999 (Cth)[34] and the Federal Magistrates Court Rules 2001 (Cth),[35] as prescribed by the objects of the FM Act[36] and the objects of the FMC Rules,[37] provide for the Court to operate in a manner:
a)as informal as possible in the exercise of judicial power;
b)which is not protracted in its proceedings;
c)which resolves proceedings justly, efficiently and economically;
d)which uses streamlined procedures; and
e)that avoids undue delay, expense and technicality.
[34] “FM Act”.
[35] “FMC Rules”.
[36] FM Act, ss.3 and 42.
[37] FMC Rules, r.1.03.
Further, the Court must take into account the following matters when determining whether or not to grant leave to allow an adjournment:
a)the paramount consideration remains the doing of justice between the parties, but a just resolution must have regard to any relevant legislative purpose or object;
b)modern principles of case management;
c)the avoidance of undue delay; and
d)the wastage of public resources.[38]
[38] Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at 192 per French CJ and 213-215 per Gummow, Hayne, Crennan, Kiefel and Bell JJ; [2009] HCA 27 at para.30 per French CJ and paras.97-103 per Gummow, Hayne, Crennan, Kiefel and Bell JJ; Fair Work Ombudsman v Kentwood Industries Pty Ltd [2010] FCA 98 at para.2 per McKerracher J.
In the exercise of its discretion to extend time this Court’s discretion is unfettered, but it is generally accepted that it may apply the principles set out by the Federal Court in Hunter Valley Developments Pty Ltd v Cohen[39] namely:
a)the extent of the delay;
b)the explanation for the delay;
c)the prejudice to the respondent; and
d)the prospects of success of the underlying application, with the emphasis generally being on this latter issue.[40]
[39] (1984) 3 FCR 344 (“Cohen”).
[40] Cohen at 348-349 per Wilox J; Winn v Blueprint Instant Printing Pty Ltd [2011] FCA 292 at paras.15-16 per Ryan J.
Mr Barnes has not previously taken advantage of the opportunities afforded by the orders of the Federal Court of 12 July 2011, and of this Court of 8 September 2011 and 14 October 2011, to file any amended application, any further affidavits or an outline of submissions. No reason or justification was put forward by Mr Barnes to warrant a further adjournment, or an extension of time. There was reference to the fact that Mr Barnes Jr is in prison, and will need to be called to give evidence, but no explanation as to why he had not filed, or even seemingly prepared, an affidavit to date.
In circumstances where Mr Barnes has had one opportunity in the Federal Court, and two opportunities in this Court, to file any further materials, affidavits and submissions, and has not done so, and in the absence of any explanation as to why, it is not evident to the Court why another month will make any difference. The fact that Mr Barnes Jr is in prison is not a circumstance which, in the absence of explanation, can be said to have precluded him, or Mr Barnes, from preparing an affidavit in relation to these proceedings.
To now adjourn, for a further month, has case management implications, as the matter is listed for hearing on 9 May 2012 in Darwin. A further adjournment, or an extension of time in which to file material, would inevitably require reallocation of that hearing date, which was advised to the parties almost six months ago. Given the current state of listings there would be a further considerable delay before this matter could be listed, and any further listing would probably be in November or December 2012 or February or March 2013. Such a delay is contrary to the legislative objects and purposes of this Court, as set out above. That is especially so when regard is had to the fact that the matter was commenced in the Federal Court over ten months ago, and was transferred to this Court almost eight months ago, and if the 9 May 2012 hearing date had to be adjourned there would a further delay of at least six months before a re-scheduled hearing.
The balance between case management issues and a just resolution of the case must also be considered. In that regard the prospects of success for this case must be weighed with the case management issues. In this case, for reasons set out below,[41] the Court has concluded that the application has no reasonable prospects of success.
[41] See paras.55-78 below.
All of the relevant circumstances in this matter weigh against the grant of an adjournment, or an extension of time, so as to allow Mr Barnes to file further materials. Mr Barnes’ oral application in a case for an adjournment, alternatively an extension of time, so as to allow him to file further materials, is therefore dismissed.
Appointment of a lawyer
At hearing, Mr Barnes sought that the Court “appoint” a lawyer for him.[42] Absent an application to appoint a litigation guardian, under r.11.11(1) of the FMC Rules, which this is not, the Court has no power to “appoint” a lawyer for Mr Barnes.
[42] Mr Barnes made an application to the Federal Court on 11 July 2011 for the appointment of a solicitor by that Court. That application was rejected on the basis that the Federal Court was not able to appoint a solicitor for him. See Transcript 11 July 2011, pages 10-11.
The Court can, however, in appropriate circumstances, refer a matter to a Registrar of the Court to see if a lawyer on the Court’s pro bono panel is willing and able to act for a person.
The Court, in Bartucciotto v Western Health Care & Ors,[43] observed that:
[43] (2007) 94 ALD 387; [2007] FMCA 26 (“Bartucciotto”).
23. The object of Pt 12 “is to establish a scheme to facilitate ... provision of legal assistance to parties … otherwise unable to obtain assistance if to do so is in the interests of the administration of justice.”[44] The scheme is not a legal aid substitute,[45] and the Court is not required to make, or consider, a referral.[46]
[44] FMC Rules, r.12.01(1).
[45] FMC Rules, r.12.01(2).
[46] FMC Rules, r.12.01(4).
24. The Court may refer a party to a Registrar of the Court for assistance “if to do so is in the administration of justice”.[47] In exercising the discretion to refer the Court “may take into account” a party’s:
[47] FMC Rules, r.12.03(1).
a) means; and
b) capacity to obtain assistance outside the scheme,
as well as the nature and complexity of the proceeding and any other matter the Court considers appropriate.[48]
[48] FMC Rules, r.12.03(2).
25. If a referral is made by the Court it is mandatory for the Registrar to attempt to arrange legal assistance from the pro-bono panel.[49] No party can be referred to a lawyer without the lawyer’s agreement,[50] and if assistance is unavailable after referral, the Court may proceed to hear the matter.[51]
[49] FMC Rules, r12.03(3).
[50] FMC Rules, r.12.03(4).
[51] FMC Rules, r.12.03(5).
26. Rules 12.01(1) and 12.03(1) speak of the “interests of the administration of justice”. In Genovese v BGC Constructions[52] the Court observed as follows:[53]
[52] [2006] FMCA 1507 (“Genovese”).
[53] Genovese at paras.24-26 and 28 per Lucev FM.
2. The interests of the administration of justice
24. In BHP Billiton Ltd v Schultz (2004) 221 CLR 400, [2004] HCA 61, (“Schultz”) the High Court considered the nature of the “interests of justice”: Gleeson CJ, McHugh and Heydon JJ CLR at p.421, HCA at par [15] said:
The interests of justice are not the same as the interests of one party, and there may be interests wider than those of either party to be considered. Even so, the interests of the respective parties, which might in some respects be common (as, for example, cost and efficiency), and in other respects conflicting, will arise for consideration. The justice referred to in s.5 is not disembodied, or divorced from practical reality.
25. Gummow J observed that the interests of justice “are even-handed”; CLR at p.445, HCA at par [100] while Callinan J referred to the requirement to “do equal justice”: CLR at p.492, HCA at par [258].
26. Some of the factors ordinarily considered when assessing the interests of justice are factors which it is mandatory for this Court to take into account under the Federal Magistrates Act and Federal Magistrates Court Rules: for example, costs and convenience of hearing and determination, earlier hearing of proceedings, availability of particular proceedings and pending proceedings in another court ….
28. In assessing the “interests of the administration of justice” similar considerations to those in Schultz apply, with the qualification related to “administration of justice”. Administration means “management”: Concise Oxford Dictionary, 7th Edition (Oxford: Oxford University Press, 1984) at p.13. Thus, s.39(3)(d) of the Federal Magistrates Act is directed to a consideration of the interests of the management of justice, which must mean management by the Court of the proceedings pending before the Court.
27. …
28. In Taylor v Minister for Immigration & Multicultural & Indigenous Affairs[54]in considering the not dissimilar Order 80 of the Federal Court Rules Justice French said:[55]
10. In deciding whether to refer a matter to the Registrar under O 80 r 4, a judge undertakes an administrative function in aid of the jurisdiction of the Court: Schokker v Commissioner of Taxation [2000] FCA 1734. The decision whether to issue a referral certificate does not depend necessarily upon any assessment of the strength of the case. Indeed as O 80 r 1(4) makes clear, a referral under O 80 is not an indication that the Court has formed any opinion on the merits of a litigant’s case. Where a case is patently hopeless then that might form a basis for refusing an O 80 certificate. The ‘interests of justice’ is a wide term. It can encompass a circumstance in which, regardless of the merits of his appeal, the significance of the outcome to an appellant and perhaps to third parties such as family members is such that the appellant should be afforded every opportunity to properly present his or her case and should have legal representation for that purpose. That does not mean that if legal representation is unavailable the litigation must come to a halt. It may be that, if in the end, no pro bono practitioner is found who is willing to act then the appellant would have to represent himself.
11. … If a practitioner is able to be found to assist the appellant even at this late stage, that would no doubt be of assistance to the appellant and to the Court. But if no practitioner can be found within a reasonable time then the appellant will no doubt have to argue his appeal unrepresented.
12. … Referral under O 80 does not amount to a guarantee of representation.[56]
[54] [2005] FCA 319 (“Taylor”).
[55] Taylor, paras.10-12 per French J.
[56] Bartucciotto ALD at 391-393 per Lucev FM; FMCA at paras.23-28 per Lucev FM. Footnotes 44-45 are footnotes from the original”
In this case there is no evidence of Mr Barnes’ means. Further, there is no evidence of any attempt to obtain legal assistance from anyone other than the Legal Aid Commission. There is, for example, no evidence, or even assertion, that legal aid or assistance has been sought from any community legal centre or any Aboriginal legal service in the Northern Territory, or elsewhere. An application for legal aid to the Legal Aid Commission, to run a case against the Legal Aid Commission, obviously entails the Legal Aid Commission in a conflict of interest, and in circumstances where they oppose the application in this Court, it can readily be envisaged that legal aid would not be granted to Mr Barnes by the Legal Aid Commission. Other factors which must influence the Court’s consideration are the failure of Mr Barnes to file further materials, or any amended application, further affidavits or an outline of submissions, having been given multiple opportunities to do so.
For reasons set out below[57] the Court has concluded that the application has no reasonable prospects of success. Indeed, the lack of prospects of success for this case are such that it would fall within the “patently hopeless” category referred to in the quote from Taylor set out in Bartucciotto. That conclusion, together with the other factors set out immediately above, mean that it simply cannot be in the interests of the administration of justice for this Court to make a pro bono referral for representation of Mr Barnes in these proceedings.
[57] See paras.55-79 below.
There will therefore be no order for referral under r.12.03 of the FMC Rules as it is not in the interests of the administration of justice to do so. It follows, that Mr Barnes’ application for the appointment of a lawyer, alternatively, for referral under r.12.03 of the FMC Rules, must be dismissed.
Proper respondent
By reason of the ruling of the Federal Court on 11 July 2011 the only respondent to these proceedings is the Legal Aid Commission. Notwithstanding the continued references to, in particular the Northern Territory Government and the Northern Territory Police, these proceedings do not involve them, or any other party (other than the Legal Aid Commission) as respondents. Whilst it is probably unnecessary to do so, this Court, with respect, observes that the Federal Court’s ruling is undoubtedly correct on the basis of the facts and the law in this matter. Factually, the Notice of Termination named only the Legal Aid Commission as respondent. Likewise, the Notice of Termination – Reasons issued by the AHRC also only referred to “your complaint … against NTLAC [Legal Aid Commission]”. Section 46PO(1) of the AHRC Act provides that an “affected person” may make an application to this Court alleging unlawful discrimination “by one or more of the respondents to the terminated complaint”. Legally, as the Legal Aid Commission was the only respondent to the Complaint at the time it was terminated, it is only the Legal Aid Commission against whom an application alleging unlawful discrimination can have been made to this Court.
Consideration – summary dismissal
The Legal Aid Commission puts the application in a case for summary dismissal of the application on two bases:
a)Mr Barnes’s failure to comply with earlier orders of this Court; and
b)the failure to disclose a case with reasonable prospects of success.
Failure to comply with orders
An applicant is in default if an applicant fails to comply with an order of the Court in a proceeding,[58] and under r.13.03B(1) of the FMC Rules if an applicant is in default, the Court may order that:
(a) the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant; or
(b) a step in the proceeding be taken within the time limited in the order; or
(c) if the applicant does not take a step in the time mentioned in paragraph (b) -- the proceeding be stayed or dismissed, as to the whole or any part of the relief claimed by the applicant.
[58] FMC Rules, r.13.03A(1)(a).
In these proceedings, it is argued by the Legal Aid Commission that Mr Barnes is in default by reason of his failure to file:
a)any amended application;
b)any further affidavits; and
c)an outline of submissions,
pursuant to the Court’s orders of 8 September 2011 (amended application and further affidavits only) and 14 October 2011.
The failure to file “any amended application” or “any further affidavits” is not a default, as the use of the word “any” means that there is no absolute requirement to file an amended application or further affidavits.[59] However, the failure to file an outline of submissions in accordance with the Court’s orders of 14 October 2011 is a failure to comply with the Court’s order. It is an important non-compliance, especially in the absence of the filing of any further affidavits in this matter. Mr Barnes’ Affidavit contains no relevant facts, merely a bundle of assertions, unsupported by reference to fact or document. In cases in which there are no pleadings in this Court, the function of affidavits has been to give factual context to the application, and the allegations made, so as to enable the other party or parties to understand the case which is put against them.[60] In this case, where there are no affidavits, that function might have been performed by the outline of submissions which the Court ordered be filed. It “remains a fundamental requirement of procedural fairness that any respondent should be provided with a claim which clearly and concisely sets out allegations against the respondent with sufficient particularity to permit a defence”.[61] In the absence of both affidavits and an outline of submissions, and even allowing for a lack of technicality and legal form, there is simply no way that the Legal Aid Commission can properly understand the case that is being put against it by Mr Barnes. Likewise, the Court is not in a position to properly understand Mr Barnes’ case. Whilst the Court might appreciate what it is that Mr Barnes might be endeavouring to put, and has said as much on previous occasions, vague allegations unsupported by an affidavit or documents annexed thereto, or an outline of the case that is being brought, do not assist the Court to understand the case being put by Mr Barnes.
[59] Matthews v Hargreaves (No. 3) [2011] FMCA 254 at paras.3-4 per Lucev FM.
[60] Kurniadi and Ors v Loh and Ors [2003] FMCA 24 at para.39 per McInnis FM.
[61] Reading v Partnership of Western Diagnostic Pathology [2008] FCA 1381 at para.42 per McKerracher J (“Reading”).
In those circumstances, the failure to file an outline of submissions is crucial, and a significant non-compliance. It is a non-compliance, which in the context of a failure to file any further materials, any amended application or any further affidavits, warrants dismissal of the application by reason of that non-compliance.
The Court will therefore make an order dismissing the application pursuant to r.13.03B(1)(c) of the FMC Rules.
Does not disclose a case with reasonable prospects of success
Section 17A of the FM Act provides as follows:
(2) The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) …
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
It is also relevant to note that r.13.10 of the FMC Rules provides as follows:
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.
The Federal Court possesses a like power under s.31A(2)(b) of the FC Act. In relation to that power it has been observed that:
a)a court must be satisfied that the applicant has no reasonable prospect of success;
b)the court need not be satisfied that the proceeding is hopeless or bound to fail;
c)the legislature’s intention in introducing the provisions concerning summary dismissal was to lower the bar for obtaining summary judgment (including summary dismissal) below the level that had been fixed by authorities like Dey v Victorian Railways Commissioners[62] and General Steel Industries Inc v Commissioner for Railways (NSW) & Ors[63] which required that the allegations be quite clearly so untenable that they could not possibly succeed;
d)there was not an intention on the part of the legislature to remove the bar completely;
e)the mere presence of a trifling, implausible, tenuous or tangentially relevant factual controversy is not a bar to the exercise of the summary dismissal power; and
f)what is required is a prediction of the outcome of a trial on the merits but not an actual adjudication of those merits.[64]
[62] (1949) 78 CLR 62 at 91-92 per Dixon J.
[63] (1964) 112 CLR 125 at 129-130 per Barwick CJ.
[64] George v Fletcher [2010] FCAFC 53 at para.75 per Ryan and Logan JJ; White Industries Australia Ltd v Commissioner of Taxation (2007) 160 FCR 298 at 310 per Lindgren J; [2007] FCA 511 at paras.50-54 per Lindgren J; and paras.99-105 per Marshall J, and in particular para.102; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372 at 387-388 per Rares J; [2008] FCAFC 60 at para.45 per Rares J; Lawrenson Light Metal Die Casting Pty Ltd (in liq) v Cosmick Pty Ltd [2006] FCA 753 at para.15 per Heerey J.
The Federal Court has also observed as follows in relation to the principles applicable on an application for summary dismissal:
6. Success under s 31A [of the FC Act] does not require a demonstration that the case is hopeless or bound to fail. The following principles are of general application to an application under s 31A:
(a) the Court must be very cautious not to do a party an injustice by summarily dismissing proceedings;
(b) the Court ought not dismiss a claim based on a predictive assessment of prospects, where it is possible that if the claim went to trial, it may succeed;
(c) in a case where evidence can give colour and content to allegations, and where questions of fact and degree are important, the Court should be more reluctant to dismiss a proceeding on the face of a pleading;
(d) it is not Parliament's intention to require the Court to engage in lengthy and elaborate trials on an interlocutory basis for the purposes of determining whether or not a proceeding has no reasonable prospects of success. It may be necessary for the opposing party to provide no more than an outline of evidence, sufficient to show that there is a genuine dispute, to prevent the summary application becoming a trial;
(e) if there is a real issue of fact or law to be decided, and the rights of the parties depend upon it, it is obviously appropriate that the matter goes to trial. It cannot be said that where there is a real factual dispute and that factual dispute must be resolved to determine whether the claim succeeds that there is ‘no reasonable prospect of success’;
(g) it ought not be used to shut out proceedings where, on a proposition of law, there may be room for doubt. On questions of law, an inquiry as to their merit should not be for the purpose of resolving them and also not simply to determine whether the argument is hopeless, but in order to decide if it is sufficiently strong to warrant a trial;
(h) evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects;
(i) in determining if there are real issues of fact in issue so as to preclude summary judgment the courts must draw all reasonable inferences in favour of the non-moving party.[65]
[65] Dandavan v Harbeth Holdings Pty Ltd [2008] FCA 955 at para.6 per Gilmour J (“Dandaven”).
In Oorloff & Anor v Lee & Anor[66] this Court observed that in unlawful discrimination cases the power to summarily dismiss ought be exercised with exceptional caution, and be sparingly invoked, especially where the applicant is unrepresented, and that there was an onus on the respondent in a summary dismissal application to establish to a high measure of satisfaction that the proceedings ought to be dismissed. Further, the Court observed that in summary dismissal applications the Court was not limited to the arguments put before it, but may look at all of the material to assess independently whether an arguable case based on the material could be made out.[67]
[66] [2004] FMCA 893 (“Oorloff”).
[67] Oorloff at para.49 per Walters FM.
Whether reasonable prospects of success
The Court now turns to address the question of whether the application has any reasonable prospects of success.
The Court has considered the material contained in the application, Mr Barnes Affidavit, the Form 167 and the Complaint, including the Legal Aid Commission Letter. The Form 167 is not in the nature of a pleading or an originating process,[68] and even though it is unlikely to “have utility in defining or resolving the controversy raised”[69] The Court, having regard to s.46PR of the AHRC Act and Oorloff [70] has considered its content in trying to assess whether Mr Barnes application has reasonable prospect of success.
[68] Reynolds v JP Morgan Administrative Services Australia Limited (No 2) (2011) 193 FCR 507 at 513 per Rares J; [2011] FCA 489 at paras.23-24 per Rares J (“Reynolds”); Reading at para.42 per McKerracher J.
[69] Reynolds FCR at 513 per Rares J; FCA at para.22 per Rares J.
[70] At para.49 per Walters FM.
Although not expressly stated, it appears that it is intended that the application allege:
a)unlawful racial discrimination under s.9(1) or (1A) of the RD Act; and
b)unlawful refusal or failure to provide services by reason of race under s.13 of the RD Act,
by the Legal Aid Commission, or its employee or employees or agent or agents, for whom the Legal Aid Commission are vicariously liable under s.18A of the RD Act.
The Complaint appears to make the following allegations of unlawful discrimination and failure to provide services on the basis of race:
a)a failure by the Legal Aid Commission to act to ensure that Mr Barnes Jr (who is in Alice Springs Prison) received:
i)a fair trial; and
ii)the right to appeal his sentence;[71] and
b)the failure by the Legal Aid Commission to act on Mr Barnes’ complaint against two police officers who allegedly swore at him at his home.[72]
[71] “Trial and Sentencing Complaint”.
[72] “Swearing Complaint”.
The Trial and Sentencing Complaint
Aside from the Form 167 indicating that Mr Barnes Jr has been denied legal aid to appeal his sentence, the material before the Court does not indicate:
a)what offence Mr Barnes Jr was charged with;
b)when Mr Barnes Jr was charged;
c)when Mr Barnes Jr’s trial was, where it was, and in what court it was (although it can be inferred that it was in the Supreme Court of the Northern Territory);
d)what, if any, involvement the Legal Aid Commission had in the trial,
e)what offence Mr Barnes Jr was convicted of;
f)what sentence Mr Barnes Jr was given; and
g)importantly, how the trial was conducted and in what respects Mr Barnes Jr was not afforded a fair trial.
Not a single document in relation to Mr Barnes Jr’s trial is before the Court.
In the circumstances, there are no proper allegations, and no evidentiary or other material, to support the bare allegation by Mr Barnes that the Legal Aid Commission did not act to ensure that Mr Barnes Jr got a fair trial.
With respect to an appeal against sentence, there is, apart from Mr Barnes’ bare assertion, unsupported by any documentation, that legal aid was denied to Mr Barnes Jr for an appeal against sentence, no evidence or material before the Court as to:
a)what offence Mr Barnes Jr was convicted of;
b)what sentence Mr Barnes was given in relation to his conviction;
c)why the sentence is, put broadly, “unfair”;
d)what the proposed grounds of appeal might be, and any likelihood of success of those grounds of appeal;
e)whether any other advice concerning the possible grounds of appeal, and the likelihood of success, has otherwise been obtained; and
f)assuming conviction on an indictable offence, why Mr Barnes Jr did not, in any event, exercise, or attempt to exercise, his right of appeal under s.410 of the Criminal Code (NT).
Once again there is not a single document in relation to Mr Barnes Jr’s sentencing before the Court.
There is a complete absence of evidence in relation to the Trial and Sentencing Complaint. There is no evidence, let alone evidence of an ambivalent character, or evidence from which the Court may be able to draw inferences in favour of Mr Barnes. There is no evidence of a factual dispute about any matter, nor the disclosure of any issue of law warranting resolution at a hearing by this Court. There is no evidence that the Legal Aid Commission did, or did not do, anything, directly or indirectly,[73] in relation to Mr Barnes Jr’s trial or sentencing, which was based on Mr Barnes Jr’s race.
[73] RD Act, s.9(1) and (1A).
In the circumstances, there is no material in relation to the Trial and Sentencing Complaint which indicates, and no basis for concluding, that the allegations of discrimination and failure to provide services on the basis of race made against the Legal Aid Commission have any, or even a remote, chance of success, at hearing before the Court.
Finally, in relation to the remedies sought:
a)success against the Legal Aid Commission in these proceedings does not give rise to a power in this Court to make an order operative so as to override a sentence imposed by the Supreme Court of the Northern Territory, a non-respondent to these proceedings,[74]
b)Mr Barnes Jr has a right of appeal against sentence irrespective of any conduct of the Legal Aid Commission.[75]
[74] AHRC Act s.46PO(1) and (4).
[75] Criminal Code (NT) s.410.
The Court does not therefore consider that the allegations against the Legal Aid Commission in relation to the Trial and Sentencing Complaint, have any reasonable prospects of success in this Court.
The Court has assumed in relation to the Trial and Sentencing Complaint that Mr Barnes is able to bring an application in relation to the Legal Aid Commission’s conduct with respect to Mr Barnes Jr before this Court, on the basis that Mr Barnes is an “affected person” for the purposes of s.46PO(1) of the AHRC Act.
The Swearing Complaint
The Swearing Complaint is that the Legal Aid Commission failed to act on Mr Barnes’ instructions to the Legal Aid Commission that certain unidentified policemen from Tennant Creek had sworn at him. Literally, that is not true, for, the Legal Aid Commission Letter indicates the Legal Aid Commission took “instructions” from both Mr Barnes, and Mr Barnes’ son, Russell, about allegations of police swearing at Mr Barnes. It was on the basis of what the Legal Aid Commission was told by Mr Barnes and his son that it determined that Mr Barnes “would not be eligible for a grant of legal aid to complain to police about these incidents”. Therefore, the allegation, in its terms, is not made out.
If, as the Court suspects, the allegation is actually about the outcome of the Legal Aid Commission dealing with the Swearing Complaint, and that it failed to provide services, namely, legal aid or a grant of legal aid, to pursue the Swearing Complaint then the matter must be addressed differently.
First, on the face of the Legal Aid Commission Letter the basis for the ineligibility for the grant of legal aid is not race, but the factual content of the instructions given to the legal aid practitioner concerned, which in the opinion of the Legal Aid Commission gave rise to no reasonable prospect of success of proving harassment of Mr Barnes by police officers at Tennant Creek.
Second, it is not apparent what kind of action Mr Barnes contemplated be taken against the police officers for “harassment”, and whether it be criminal or civil, or what the legislative basis for any action might in fact be.
Thirdly, there are immediately discernable evidentiary difficulties for any case (assuming an applicable charge or cause of action). For example:
a)the police officers are not identified, and may or may not have been:
i)on duty; or
ii)acting in any official capacity;
b)neither Mr Barnes, nor his son, Mr Russell Barnes, heard anything that was allegedly said;
c)Mr Barnes’ basis for his belief that the police officers were swearing at him is not identified, but is rather an assumption; and
d)Mr Russell Barnes’ basis for believing that the police officers he saw were swearing at his father, Mr Barnes, was that he “could sort of lip-read”.
In the circumstances, there is in the Court’s view nothing in the material before the Court which would indicate that the Legal Aid Commission’s assessment that there was no reasonable prospect of proving that Mr Barnes had been harassed by a police officer at Tennant Creek, was wrong and, relevantly, nothing to indicate that the decision, directly or indirectly,[76] was made on the basis of Mr Barnes’ race. There is therefore, in the Court’s view, no reasonable prospect that the Swearing Complaint will be successful.
[76] RD Act s.9(1) and (1A).
Conclusion and orders
The Court has concluded that:
a)that Mr Barnes’ application in a case made orally at hearing for adjournment, alternatively an extension of time, in which to file further materials, be dismissed;
b)Mr Barnes’ application in a case made orally at hearing for the appointment of a lawyer by the Court, alternatively, for a pro bono referral under r.12.03 of the FMC Rules, be dismissed;
c)the Legal Aid Commission’s application in a case filed 8 March 2012 be upheld on the bases of:
i)r.13.03B(1)(c) of the FMC Rules, insofar as Mr Barnes has failed to comply with an order of this Court of 14 October 2011 to file an outline of submissions; and
ii)r.13.10(a) of the FMC Rules, on the basis that Mr Barnes’ application has no reasonable prospects of success.
It therefore follows that the application itself must be dismissed.
Costs will be determined on the basis of written submissions from the parties.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Lucev FM
Date: 13 April 2012
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