Bursac v Pazpinis
[2007] FMCA 382
•12 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BURSAC v PAZPINIS | [2007] FMCA 382 |
| HUMAN RIGHTS – Complaint of racial abuse – no substance shown by evidence – application dismissed. |
| Federal Magistrates Court Rules 2001 (Cth), r.15.29A(b) Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.46PO Disability Discrimination Act 1992 (Cth) Racial Discrimination Act 1975 (Cth), s.18C |
| Applicant: | SIMON BURSAC |
| Respondent: | SOTIRIS PAZPINIS |
| File Number: | SYG 2696 of 2006 |
| Judgment of: | Smith FM |
| Hearing date: | 12 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 12 March 2007 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in Person |
| Counsel for the Respondent: | Respondent in Person |
ORDERS
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2696 of 2006
| SIMON BURSAC |
Applicant
And
| SOTIRIS PAZPINIS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application filed on 28 August 2006 invoking this Court's jurisdiction under s.46PO of the Human Rights and Equal Opportunity's Commission Act 1986 (Cth), consequent upon a notice of termination issued by the Human Rights and Equal Opportunities Commission on 22 August 2006. In that notice of termination the delegate of the President summarised the applicant's complaint and the response of the respondent, Mr Pazpinis as follows:
Summary of Complaint
You state that you and Mr Pazpinis used to live in a block of small strata units. You allege that Mr Pazpinis has racially vilified you by displaying a number of notices in the common property at the block of units to the effect “Stupid Serb wog. Go back to your own country wogs.” You allege that Mr Pazpinis has poked his finger in your face and said words to the effect “You are a filthy Serbian. Go back to Bosnia to get killed” You also allege that Mr Pazpinis said words to the effect of “You are a Yugoslav filthy bastard.”
You allege that on 30 September 2005 or 30 October 2005, in court precincts, Mr Pazpinis said words to the effect “I am not safe here because of Serbian shit.” You also allege that Mr Pazpinis has said on a number of occasions words to the effect “you are a skinny Serbian wog. You are on social service having nothing to eat. At least I am secure.” You allege that on 21 February 2006 Mr Pazpinis said words to the effect “Mum, mum, here is the Serbian malaka, look at the malaka coming here.”
You allege that Mr Pazpinis has assaulted you on at least two occasions causing you to break his ribs, and has incited other people to assault you and his wife, slashed the tyres on your car, and damaged and flooded your unit.
Summary of Mr Pazpinis’ response
In a response dated 3 July 2006 Mr Pazpinis denies your allegations as set out in your complaint and states that there is a long and ongoing antagonistic relationship between you, himself and the Owners’ Corporation. Mr Pazpinis states that with the exception of the alleged incidents in September 2005 and February 2006 all your allegations are at least eight years old and have been previously dealt with by the Commission, the Anti-Discrimination Board, or the Courts.
Mr Pazpinis denies that an Apprehended Violence Order (“AVO”) has been issued against him, but states that he has sought, and been granted AVOs, against you, including an AVO which was granted on 15 June 2006.
The application to the Court and the supporting affidavit do not present sworn evidence identifying and giving substance to the applicant’s complaints of unlawful discrimination under the Disability Discrimination Act 1992 (Cth) or the Racial Discrimination Act 1975 (Cth). They are incoherent documents that are not easily comprehended, but appear to pursue grievances in relation to matters falling outside the complaint made to the Commission and the jurisdiction of this Court.
The application was filed originally in the Federal Court, but has been transferred to this Court by order of Edmonds J on 19 September 2006. It was listed for directions before me on 20 October 2006. I then gave directions requiring the evidence-in-chief of the parties be by way of affidavits, and setting the matter down for hearing today.
The applicant has filed an affidavit with bulky attachments; all of which I have read. In my opinion, the affidavit itself does not narrate evidence establishing a complaint related to those made to HREOC as required by s.46PO(3), and the documents in the bundle – so far as I can discover - have little or no apparent relevance to that complaint. Moreover, the applicant declined to enter the witness box to be cross-examined on his complaints.
Among the documents presented to the Court by the applicant are medical reports indicating medical disabilities suffered by him, including disabilities of a psychiatric nature. It is apparent from his documents, and from his address to me today, that he has difficulty focussing his thoughts and presenting a coherent case of unlawful discrimination by the respondent.
The respondent filed an affidavit which provides background to the applicant's grievances, and denies any conduct which might be unlawful under the legislation. In view of the applicant’s refusal to submit to cross-examination, and my assessment that he was unlikely to be capable of properly conducting a relevant questioning of the respondent, I refused the applicant’s request to question the respondent. I considered that the situation came within the special circumstances in which this was an appropriate use of Federal Magistrates Rules r.15.29A(b). Moreover, due to the applicant’s failure to present evidence giving substance to his complaints, I have not found it necessary to rely upon the respondent’s evidence.
Taking all the applicant’s impediments into account, I have carefully considered the material presented by him and his address to me, but am unable to find evidence which might cause me to uphold a complaint relevantly related to the complaints originally made to the Human Rights and Equal Opportunities Commission. I am not satisfied by any evidence presented by the applicant that the respondent has been responsible for any acts which might be in breach of, in particular, s.18C of the Racial Discrimination Act, nor for any other action which would give rise to an entitlement to relief by the applicant in this proceeding.
I therefore consider it appropriate to dismiss the application.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Michael Abood
Date: 28 March 2007
0
0
4