Hassan v Hume - [2004] FCA 886

FEDERAL COURT OF AUSTRALIA
Hassan v Hume [2004] FCA 886
HUMAN RIGHTS - discrimination and victimisation – universities – doctoral student enrolled at University of New South Wales – enrolment and scholarship cancelled for non-disclosure in application – information of previous enrolment and disciplinary proceedings provided by University of Adelaide – prior complaint to Human Rights and Equal Opportunity Commission against University of Adelaide – complaint to Human Rights and Equal Opportunity Commission about cancellation of enrolment and scholarship by University of New South Wales and provision of information by University of Adelaide – general allegation of discrimination and victimisation – complaint terminated – application to Federal Magistrates Court – application dismissed summarily – no reasonable cause of action – appeal to Federal Court – appeal dismissed – no issue of principle
Racial Discrimination Act 1975 (Cth) s 17, s 27
Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 46PH, s 46PO
Federal Court of Australia Act 1976 (Cth) s 25(1A)
Federal Magistrates Court Rules r 13.7, r 13.10
General Steel Industries Inc v Commissioner of Railways (1964) 112 CLR 125 cited
GHALI HASSAN v PROFESSOR ROY HUME AND ANOTHER
W 247 OF 2003
FRENCH J
7 JULY 2004
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W247 OF 2003

On Appeal from the Federal Magistrates Court of Australia

BETWEEN:

GHALI HASSAN
APPELLANT

AND:

PROFESSOR RORY HUME (University of NSW)
FIRST RESPONDENT

PROFESSOR JAMES McWHA (University of Adelaide)
SECOND RESPONDENT

JUDGE:

FRENCH J

DATE OF ORDER:

7 JULY 2004

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.        The appeal be dismissed.
2.        The appellant pay the respondents’ costs of the appeal.
Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W247 OF 2003

On Appeal from the Federal Magistrates Court of Australia

BETWEEN:

GHALI HASSAN
APPELLANT

AND:

PROFESSOR RORY HUME (University of NSW)
FIRST RESPONDENT

PROFESSOR JAMES McWHA (University of Adelaide)
SECOND RESPONDENT

JUDGE:

FRENCH J

DATE:

7 JULY 2004

PLACE:

PERTH

REASONS FOR JUDGMENT
Introduction

A former doctoral student enrolled at the University of New South Wales (‘UNSW’) under a scholarship had his enrolment and scholarship cancelled by UNSW on 23 April 2002. The cancellation was effected because he had failed to disclose on his application form prior enrolments with other universities where he had not completed his degrees. One basis of the cancellation was information provided by the University of Adelaide which related, in part, to disciplinary proceedings taken against the student.
The student, Mr Ghali Hassan, subsequently made a complaint to the Human Rights and Equal Opportunity Commission (‘HEROC’) which was treated as a complaint of racial discrimination and victimisation contrary to the Racial Discrimination Act 1975 (Cth). That complaint was terminated by the President of HEROC. Mr Hassan then made application to the Federal Magistrates Court under the provisions of s 46PO of the Human Rights and Equal Opportunity Commission Act

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 Hassan v Hume

Details

AGLC: Hassan v Hume [2004] FCA 886
Case: [2004] FCA 886
Decision Date: 7 JULY 2004

CaseChat Overview and Summary

In the case of Hassan v Hume, the appellant, Mr Hassan, sought to appeal a decision of the Federal Magistrates Court which dismissed his application for orders against two Vice Chancellors of universities, Professors Hume and another. Mr Hassan alleged that the respondents had violated anti-discrimination laws by disclosing fabricated or misleading private information to the University of New South Wales (UNSW), which led to the termination of his enrolment and scholarship. The Vice Chancellors argued that no discrimination had occurred and that the application should be dismissed as an abuse of process.

The primary legal issues before the court were whether Mr Hassan's application disclosed a contravention of any anti-discrimination legislation and whether the application should be dismissed as an abuse of process. The court needed to determine if there was sufficient evidence of victimisation under the Racial Discrimination Act and whether the application was frivolous or vexatious. The court also needed to consider whether the application was an abuse of process given that the same complaint had been considered by another tribunal.

The Federal Magistrate found that there was no evidence that the UNSW had acted upon any information received from the University of Adelaide regarding Mr Hassan's complaint. The magistrate held that there was no real question to be determined in the case and that Mr Hassan’s claim was so obviously untenable that it could not possibly succeed. The magistrate dismissed the application on the basis that the materials did not disclose a contravention of the relevant legislation. Additionally, the magistrate noted that the complaint before the New South Wales Administrative Decisions Tribunal was substantially the same as the one before the Federal Magistrates Court, and it would be undesirable for the court to embark upon a further enquiry at the risk of there being an inconsistent outcome.

ORDERS:
1. The appeal be dismissed.
2. The appellant pay the respondents’ costs of the appeal.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the respondents’ costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

FRENCH J

In their responses, the two Vice Chancellors sought orders dismissing the application pursuant to r 13.07 and alternatively r 13.10 of the Federal Magistrates Courts Rules on the grounds that no discrimination contravening any anti-discrimination legislation was disclosed in the application. For Professor Hume, it was also asserted in support of the dismissal application that insofar as Mr Hassan’s application related to UNSW it had been the subject of decisions of the Administrative Decisions Tribunal of that State. The Decision of the Federal Magistrates Court The learned Federal Magistrate referred to the complaint to HREOC noting that Mr Hassan alleged victimisation under the provisions of the Racial Discrimination Act. He set out the substance of the complaint and referred to affidavits filed by the respondents. He summarised Mr Hassan’s allegations thus: ‘. Private information held by the University of Adelaide was disclosed to the University of New South Wales..The information related to a disciplinary matter. .The information was fabricated or misleading..The information had nothing to do with the Applicant’s academic records..The Applicant signed the UNSW application for admission form purely to verify the information provided by him and had not consented to his life history being investigated by the UNSW..The Applicant had never authorised the UNSW to obtain private and confidential information from the University of Adelaide. .The Applicant’s PhD enrolment had been confirmed and he had been in receipt of the Scholarship for several weeks when the Registrar informed him of the termination of his enrolment and scholarship.’ The learned magistrate observed that upon the most generous view of Mr Hassan’s material it appeared that he was relying upon a breach of ss 17 and/or 27 of the Racial Discrimination Act. The latter provision was relevant in that it provided that acts of victimisation are prohibited and that a person shall not intimidate or coerce or impose any pecuniary penalty upon another person by reason of the fact that the other person has made a complaint under the Act. His Honour went on to say: ‘It is sufficient to note that whilst there may be some evidence that the UNSW was made aware of a complaint lodged against the UA with the Commission I am unable to determine that there is prima facie evidence of victimisation pursuant to s 27 of the RDA. There does not appear to be any or any sufficient evidence which would persuade the Court that there is even a prima facie case that can be established that information was received by the UNSW it was then acted upon in any way when it decided to terminate the enrolment and scholarship of the Applicant at the UNSW.’ (sic) His Honour referred to the criteria for summary dismissal and in particular the judgment of Barwick CJ in General Steel Industries Inc v Commissioner of Railways (1964) 112 CLR 125 at 129. Applying the criteria in that judgment his Honour was satisfied that there was no real question to be determined in the case before him and that Mr Hassan’s claim was so obviously untenable that it could not possibly succeed. It was not necessary to determine whether the application was an abuse of process or whether any issue estoppel arose as a result of the proceedings taken by Mr Hassan in the New South Wales Administrative Decisions Tribunal. Nevertheless he was satisfied that the complaint before that Tribunal was substantially the same as the complaint sought to be agitated before the Federal Magistrates Court. He said: ‘It would otherwise be undesirable for this Court to embark upon a further enquiry at the risk of there being an inconsistent outcome.’It was sufficient however for the decision which his Honour made that he was satisfied that the application should be dismissed on the basis that the materials did not disclose a contravention of the relevant legislation. Grounds of Appeal

Ratio Decidendi

Legal Principle Established

Established by: FRENCH J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W247 OF 2003

BETWEEN:	GHALI HASSAN APPELLANT
AND:	PROFESSOR RORY HUME (University of NSW) FIRST RESPONDENT PROFESSOR JAMES McWHA (University of Adelaide) SECOND RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	7 JULY 2004
WHERE MADE:	PERTH

JUDGE:	FRENCH J
DATE:	7 JULY 2004
PLACE:	PERTH