Huemer v New South Wales Department of Housing

[2007] FCA 572

FEDERAL COURT OF AUSTRALIA

Huemer v New South Wales Department of Housing [2007] FCA 572

HELMUT HUEMER v NEW SOUTH WALES DEPARTMENT OF HOUSING
NSD 457 OF 2007

MADGWICK J
13 APRIL 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 457 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	HELMUT HUEMER Appellant
AND:	NEW SOUTH WALES DEPARTMENT OF HOUSING Respondent

JUDGE:	MADGWICK J
DATE OF ORDER:	13 APRIL 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for an extension of time to file and serve a notice of appeal be dismissed with costs.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 457 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	HELMUT HUEMER Appellant
AND:	NEW SOUTH WALES DEPARTMENT OF HOUSING Respondent

JUDGE:	MADGWICK J
DATE:	13 APRIL 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR

1. This is an application for an extension of time to file and serve a notice of appeal from the judgment of Raphael FM given on 17 November 2006.  The applicant was a tenant of the New South Wales Department of Housing (‘the Department’) from 2002 to 2005.  In 2005 he was evicted from the home unit that he was occupying.

2. The Department’s notice of termination of the tenancy was confirmed by the New South Wales Consumer, Trader and Tenancy Tribunal which ordered that the agreement be terminated and thereafter Mr Huemer was evicted.  He claimed that he was evicted because of his disabilities and his race as a person of German extraction. 

3. It appears that Mr Huemer suffers from a number of mental or emotional disabilities including delusional disorder, schizophrenia, grand mal epilepsy, alcohol dependence and paranoid personality disorder.  Mr Huemer denies these disabilities except for the epilepsy and the alcohol dependence. 

4. In short, his Honour accepted the Department’s case that the reason for Mr Huemer’s eviction was various antisocial activities in which he engaged which made life intolerable for his neighbours.  His Honour found that there was no discriminatory conduct in evicting him for that reason, notwithstanding that his behaviour was the consequence of his disabilities.  In this regard his Honour followed Purvis v New South Wales (Department of Education and Training (2003) 217 CLR 92 and decisions to similar effect in this Court including Yv Human Rights and Equal Opportunity Commission [2004] FCA 184 and Power v Aboriginal HostelsLtd (2003) 133 FCR 254.

5. Mr Huemer’s affidavits in support of his application relevantly suggest only that Raphael FM was biased against him because his Honour is of Jewish extraction.  The affidavits do not explain the delay, but I am prepared to accept that the delay arises from Mr Huemer’s disabilities and would excuse it if it appeared that he had any arguable case.  Mr Huemer asserted that his Honour had labelled him in exchanges in court as a neo-Nazi and/or as anti-Semitic.  It is certainly true that Mr Huemer had made anti-Semitic utterances which he lavishly continued in such materials as he has filed in these proceedings.

6. However, his Honour went so far in Mr Huemer’s favour as to inform him that his Honour was of Jewish extraction and apparently invited Mr Huemer to consider whether he wished to apply for his Honour to recuse himself on the basis of any possible appearance of bias.  Ultimately, however, his Honour did not do so.  It is apparent from the terms of his Honour’s judgment that he considered Mr Huemer’s case with that degree of humanity and compassion which is a hallmark of such of his Honour’s judgments as it has been my privilege to read.  There was no evidence to suggest that his Honour disparaged Mr Huemer on any basis, although Mr Huemer made such an allegation.

7. There is no more basis for a rational person to think that a judicial officer of Jewish extraction might not be able to apply the law in the case of a person given to anti-Semitic utterances than there is for thinking that a non-Jewish person who belongs to any other religion, race or social group cannot do so, without giving rise to a reasonable suspicion of bias on the part of a sensible lay observer, when dealing with a case which concerns adverse remarks against such race, religion or social group.

8. Mr Huemer, for example, claims to have been, as well as a victim of Jewish conspiracies, a victim of conspiracy by Christendom.  It is not to be thought that a judge who is a Christian could not deal fairly and accordingly to law with Mr Huemer’s claims in that regard nor is there any basis whatever for thinking that a reasonable suspicion might be engendered in the mind of a reasonable lay observer as to such judge’s ability to do so.

9. In short, nothing whatsoever appears to suggest that there is any arguable basis for a claim of actual or suspected bias and in my opinion the application for extension of time should otherwise be refused because the judgments below (including his Honour’s apparent interlocutory decision declining to recuse himself) are unattended by sufficient doubt. 

10. The application will be dismissed with costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:       20 April 2007

Counsel for the Appellant:	Appellant appeared in person
Counsel for the Respondent:	A Jungwirth
Date of Hearing:	13 April 2007
Date of Judgment:	13 April 2007