Legal Research
Cases
Djime v Kearnes

Djime v Kearnes

Case [2019] VSC 117 28 February 2019

No judgment structure available for this case.

Type to search within this case.

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2016 00169

HAMADOU DJIME	Applicant
v
SERGEANT MICHAEL KEARNES	First Respondent
CONSTABLE MATTHEW LE	Second Respondent
SENIOR CONSTABLE CAILLEY WILSON	Third Respondent
SENIOR CONSTABLE FLEUR VAN DER SLUIS	Fourth Respondent
STATE OF VICTORIA (VICTORIA POLICE)	Fifth Respondent

---

JUDGE:	Cavanough J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 December 2016
DATE OF JUDGMENT:	28 February 2019 First Revision: 7 March 2019
CASE MAY BE CITED AS:	Djime v Kearnes
MEDIUM NEUTRAL CITATION:	[2019] VSC 117

---

ADMINISTRATIVE LAW – Victorian Civil and Administrative Tribunal – Litigant in person – Claims of racial discrimination and related claims – Most claims summarily dismissed – Others dismissed at final hearing – Application for leave to appeal – Nature of appeal from summary dismissal of claims at VCAT – Unreasonable conduct by litigant – Poor prospects of success on appeal – Leave to appeal refused - Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 75, 148.

DISCRIMINATION LAW – Areas of activity – Provision of goods and services – Services by police – Equal Opportunity Act 2010 (Vic) ss 3, 44, 75, 99, 105.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the Respondents	Ms R J Sharp	Norton Rose Fulbright

HIS HONOUR:

Introduction and overview

The applicant, Mr Hamadou Djime, brought a proceeding in the Victorian Civil and Administrative Tribunal (‘VCAT’) against the respondents, comprising certain Victorian police officers and a party described in the application as ‘State of Victoria (Victoria Police)’. Broadly speaking, he claimed that he had been subjected to sexual harassment, racial discrimination, racial vilification, victimisation and contraventions of his human rights. His race-related claims were based on the circumstances that he came originally from Mali, Africa, had dark skin and wore his hair in dreadlocks. He relied on the Equal Opportunity Act 2010 (Vic) (‘the EO Act’), the Racial & Religious Tolerance Act 2001 (Vic) and the Charter of Human Rights & Responsibilities Act 2006 (Vic). His claims related to interactions said to have occurred between himself and various police officers – principally the police officers who were named as respondents – on a number of occasions between 2008 and 2014. VCAT identified 27 individual claims in total made by Mr Djime. These were designated by VCAT as claims (a) to (z) and (aa).

After evidence had been heard for two days, the respondents made an application to VCAT under s 75(1) of the Victorian Civil & Administrative Tribunal Act 1998 (‘the VCAT Act’) for the summary dismissal of the majority of Mr Djime’s claims. In response, by a reserved decision accompanied by detailed written reasons, VCAT summarily dismissed 21 of the 27 claims as misconceived or as lacking in substance.[1] Later, after several further hearing days, VCAT dismissed the remaining 6 claims as not having been proved. It did so by a further reserved decision, accompanied by a further set of detailed written reasons.[2]
[1]

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Djime v Kearnes

Details

AGLC: Djime v Kearnes [2019] VSC 117
Case: [2019] VSC 117
Decision Date: 28 February 2019 First Revision: 7 March 2019

CaseChat Overview and Summary

The applicant, Mr Djime, brought a case against the respondent, Mr Kearnes, before the Victorian Civil and Administrative Tribunal (VCAT). Mr Djime alleged that Mr Kearnes, a police officer, discriminated against him on the basis of race and made a series of related claims. The dispute was adjudicated in VCAT, where Mr Djime appeared as a litigant in person.

The court was tasked with determining whether Mr Djime's claims of racial discrimination and related allegations had merit. The court also needed to decide if Mr Djime's conduct during the proceedings was unreasonable and whether there were prospects of success if an appeal were to be made against the summary dismissal of some of the claims. The legal issues included the interpretation and application of the Equal Opportunity Act 2010 (Vic) and the Victorian Civil and Administrative Tribunal Act 1998 (Vic).

In its decision, the court found that most of Mr Djime's claims were without merit and were summarily dismissed. The remaining claims were also dismissed at the final hearing. The court found that Mr Djime's conduct during the proceedings was unreasonable, and that there were poor prospects of success on appeal. Consequently, the court refused leave to appeal the decision. The court's reasoning was based on the evidence presented and the applicable legislation.

No further orders were made by the court.

Orders