FIREW v Busways TRUST (No.2) - [2003] FMCA 317

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FIREW v BUSWAYS TRUST (No.2)

[2003] FMCA 317

HUMAN RIGHTS – Vilification, harassment and discrimination under Racial Discrimination Act 1975 – summary dismissal.

PRACTICE AND PROCEDURE – Application for summary dismissal in absence of Applicant – Court satisfied Applicant received notice of hearing and aware matter would proceed in absence – appeal pending arising out of same application – summary dismissal application heard and determined.

Racial Discrimination Act 1975, ss.9, 15 and 18A

Vintila v Federal Attorney General [2001] FMCA 110
Duncan v Hotop v Anor (2002) 68 ALD 758
Bruch v Commonwealth of Australia [2002] FMCA 29

Applicant:

SENTAYEHU FIREW

Respondent:

BUSWAYS TRUST

File No:

MZ 325 of 2003

Delivered on:

23 July 2003

Delivered at:

Melbourne

Hearing Date:

23 July 2003

Judgment of:

McInnis FM

REPRESENTATION

Applicant:

No appearance

Counsel for the Respondent:

Mr T Donaghey

Solicitors for the Respondent:

GWP Aarons & Co

ORDERS

The application filed by the applicant on 4 April 2003 be dismissed.
The applicant shall pay the respondent's costs pursuant to Schedule 1 of the Federal Magistrates Court Rules, to be taxed in default of agreement pursuant to Order 62 of the Federal Court Rules.
Pursuant to Rule 21.15 of the Federal Magistrates Court Rules 2001
I certify that it was reasonable to employ an advocate to appear for the Respondent in the proceedings.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 325 of 2003

SENTAYEHU FIREW

Applicant

And

BUSWAYS TRUST

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

In this application the applicant by an application filed 4 April 2003 has made a claim against what is now known as the respondents, who I shall collectively refer to as ‘Busways’, said to have arisen out of the employment by the applicant with the respondent. The application which was filed on 4 April 2003 was supported by an affidavit sworn by the applicant the same day. That affidavit is in brief terms and it is perhaps useful to set out the application and indeed the brief affidavit in the text of this judgment. The application seeks orders as follows:
“1.Stop to abuse and racial vilification using a high technology driven ‘blame and shame’ campaign using ‘spy agency’.
2.Stop to exposure of my ‘thoughts and memories’. I am rendered unable to work in my profession and as an individual because I am exposed to everyone which endangers my life and the lives of my family and friends.
3.Damage to my personal reputation due to allegation of theft.”
The affidavit to which I have referred provides the following:
“I believe my case is significant to the greater society in that I am rendered unable to preserve my individuality (independence) as my brain constantly is picked up by a ‘spy agency’ working for those mentioned organisations. Hence I am exposed which endangers my life and those of others.
The constant abuse and vilification using this incidents method, has affected my person both healthwise and professionally. I am forced…

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 FIREW v Busways TRUST (No.2)

Details

AGLC: FIREW v Busways TRUST (No.2) [2003] FMCA 317
Case: [2003] FMCA 317
Decision Date: 23 July 2003

CaseChat Overview and Summary

Federal Magistrates Court Rules, the applicant shall pay the respondent's costs of the application filed on 10 April 2003. The Federal Magistrates Court was tasked with deciding an application for costs filed by the applicant, FIREW, against the respondent, Busways TRUST. The applicant sought an order for costs associated with two separate applications filed on 4 April 2003 and 10 April 2003. The court considered the principles governing the award of costs and the conduct of the parties throughout the proceedings.

The court assessed whether the applicant was entitled to the costs sought and whether the respondent's conduct warranted an order for costs against the applicant. In dismissing the application, the court found that the applicant had not demonstrated a sufficient basis for the costs claimed. Furthermore, the court determined that the respondent's actions did not justify an order for costs against the applicant. Consequently, the court held that the application for costs should be dismissed, and the applicant was ordered to pay the respondent's costs as per the Federal Magistrates Court Rules.

The Federal Magistrates Court directed that the applicant pay the respondent's costs associated with the applications filed on 4 April 2003 and 10 April 2003. The costs were to be taxed in default of agreement pursuant to Order 62 of the Federal Court Rules. Additionally, pursuant to Rule 21.15 of the Federal Magistrates Court Rules, the applicant was also ordered to pay the respondent's costs of the application filed on 10 April 2003. This outcome underscored the importance of demonstrating a clear basis for the costs claimed in such applications.

Orders

Orders of the court

The application filed by the applicant on 4 April 2003 be dismissed.

The applicant shall pay the respondent's costs pursuant to Schedule 1 of the Federal Magistrates Court Rules, to be taxed in default of agreement pursuant to Order 62 of the Federal Court Rules.

Pursuant to Rule 21.15 of the

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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