IBRAHIM v AUSTRALIAN DENTAL COUNCIL
[2012] FMCA 612
•20 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| IBRAHIM v AUSTRALIAN DENTAL COUNCIL | [2012] FMCA 612 |
| HUMAN RIGHTS – Application in a case for summary dismissal – originating application alleging racial discrimination – no reasonable prospect of success – application dismissed. |
| Australian Human Rights Commission Act 1986 (Cth), ss.46PH, 46PO Evidence Act 1995 (Cth), ss.59, 79, 135 Federal Court Act 1976 (Cth), s.31A Federal Magistrates Court Act 1999 (Cth), s.17A Federal Magistrates Court Rules 2001 (Cth), r.13.10 Racial Discrimination Act 1975 (Cth), ss.9, 10, 11, 13, 15, 16, 18A, 18C, 27 |
| Gunns Ltd v Marr [2005] VSC 251 Macedonian Teachers’ Association of Victoria Inc v Human Rights & Equal Opportunity Commission & Anor [1998] FCA 1650 Commonwealth v McEvoy (1999) 94 FCR 341 at 353 Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615 Creek v Cairns Post Pty Ltd [2001] FCA 293 Jones v Scully [2002] FCA 1080 Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573 Vijayakumar v Qantas Airways Limited [2009] FMCA 736 Hollingdale v Northern Rivers Area Health Service [2004] FMCA 721 Travers v New South Wales [2000] FCA 1565 Briginshaw v Briginshaw (1938) 60 CLR 336 |
| Applicant: | MOHAMED IBRAHIM |
| Respondent: | AUSTRALIAN DENTAL COUNCIL |
| File Number: | SYG 340 of 2012 |
| Judgment of: | Nicholls FM |
| Hearing date: | 15 June 2012 |
| Date of Last Submission: | 6 July 2012 |
| Delivered at: | Sydney |
| Delivered on: | 20 September 2012 |
REPRESENTATION
| The Applicant: | In Person |
| Counsel for the Respondent: | Mr S Adair |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application made on 15 February 2012, amended on 28 March 2012 and further amended on 11 April 2012, is dismissed pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules2001 (Cth).
The applicant pay the respondent’s costs as agreed or taxed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 340 of 2012
| MOHAMED IBRAHIM |
Applicant
And
| AUSTRALIAN DENTAL COUNCIL |
Respondent
REASONS FOR JUDGMENT
Before the Court for current consideration is the respondent’s Application in a Case, made on 20 April 2012, pursuant to r.13.10 of the Federal Magistrates Court Rules 2001 (Cth) (“the FMC Rules”), seeking summary dismissal of the substantive application in this matter.
On 15 February 2012 Mr Mohamed Ibrahim (“the applicant”) made an application (“the originating application”) to this Court, pursuant to s.46PO of the Australian Human Rights Commission Act 1986 (Cth) (“the AHRC Act”), amended on 28 March 2012 and further amended on 11 April 2012, in which he alleged discrimination by the respondent, the Australian Dental Council (“the ADC”), under the Racial Discrimination Act 1975 (Cth) (“the RDA”).
Introduction and Background
In January 2006 the applicant applied to the ADC for registration to practice as a dentist in Australia. He previously had been a practising dentist in Egypt.
The respondent was, and is, responsible for administering the relevant examination that is a prerequisite to gaining registration in Australia. That examination has three stages, all of which must be passed by a candidate in order to be conferred recognition:
1)An English language skills test (“OET”).
2)A written “theory” examination.
3)A clinical examination involving numerous vivas and clinical assessments over approximately one week (“the clinical examination”).
The applicant applied for assessment in January 2006. In February 2007 he successfully completed the OET examination. He undertook, and passed, the “theory” examination in September 2007.
The applicant undertook the clinical examination in September 2008, July 2010, July 2011 and October 2011. He failed to pass that examination on all four occasions. Further, as a result of the applicant not passing the clinical examination in September 2008, he was required to sit the OET examination again as his previous result (obtained in February 2007) was only valid for two years (that is, up until February 2009).
The Complaint before the Australian Human Rights Commission
On 16 December 2011 the applicant lodged a complaint against the ADC with the Australian Human Rights Commission (“AHRC”) (attachment “B” to the originating application). That complaint broadly alleged the following:
1)The ADC repeatedly “failed” the applicant because of his race, specifically because he was of middle-eastern background, and because he had made a complaint to “some government body” in 2008.
2)“[I]ntense racism was practised by ADC both direct and indirect”. That complaint included a reference to the timing involved in the “re-sit” examinations that the applicant was offered.
3)The ADC intimidated the applicant by sending him “strange emails” and by withholding his examination results.
4)The ADC’s assessment policies were inaccurate and without “sound ground”. Those assessment policies provided for the applicant to be assessed based on his “look, race and religion”.
On 9 January 2012, the applicant requested that the AHRC terminate his complaint as he wished to pursue the matter before the Court (see attachment “A” to the originating application).
On 1 February 2012 the delegate of the AHRC President decided to terminate the complaint, pursuant to s.46PH(i) of the AHRC Act, on the basis that she was satisfied that there was no reasonable prospect of the matter being settled by conciliation (attachment “A” to the originating application). The ADC had advised the delegate that they did not object to the complaint being terminated.
The “Evolution” of the Originating Application to the Court
On termination of the AHRC complaint the jurisdiction of this Court was invoked and, on 15 February 2012, an application was made. That application, on its face, asserted a breach of the RDA. However, it failed to specify the sections of the RDA that were relevant to the claim. In answer to the question “What discrimination are you complaining of?”, the following was provided:
“Racial Discrimination and Intimidation Through Exam application, allocation. Including time and venue, emails, Results, Fees, Technical problem at the exam”
The matter first came before the Court on 16 March 2012. The applicant appeared in person and Mr S Adair of counsel appeared for the respondent.
At that time, Mr Adair made clear that the respondent was seeking greater definition of the legal issues asserted by the applicant. I agreed with that submission and explained to the applicant that what was presently before the Court was inadequate in terms of explaining his legal position. Further, I advised him that his case needed to be properly pleaded with reference to the relevant law and facts that could be found to support it. The applicant was urged to seek legal advice. Orders were made directing him to file an amended application, points of claim and any evidence by way of affidavit by 30 March 2012.
An affidavit by the applicant, made on 26 March 2012, was filed on 27 March 2012. Further, on 28 March 2012, the applicant filed an amended application and points of claim.
On 11 April 2012, the applicant filed a further amended application (“FAA”), amended points of claims, and an affidavit made by him on 10 April 2012. Those documents appeared to expand upon, albeit to a limited extent, the content of the earlier versions of those documents. For the most part, the documents failed to address the concerns raised by the respondent, and indeed the Court, at the first Court date.
The Response
On 20 April 2012 the respondent filed an “Application in a Case” seeking summary dismissal of the application to the Court pursuant to r.13.10(a) of the FMC Rules. That application asserted that the proceedings had no reasonable prospects of success and should be summarily dismissed. Further, that the applicant should pay the respondent’s costs of the application and the proceedings.
Rule 13.10(a) of the FMC Rules is, relevantly, in the following terms:
“Disposal by summary dismissal
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
… “
Further, s.17A of the Federal Magistrates Court Act 1999 (Cth) (“FMC Act”) is in the following terms:
“Summary judgment
(1) The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is prosecuting the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2) The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
(4) This section does not limit any powers that the Federal Magistrates Court has apart from this section.”
At a directions hearing on 2 May 2012 the applicant again appeared in person. Mr Adair appeared for the respondent. Again, I sought to explain to the applicant, at some length, that the Court could only be concerned with legal issues. While accepting the difficulties faced by an unrepresented applicant, I alerted him to the need to focus on legal argument and to attempt to frame his case within that context. I put to him that, as it was presently pleaded, his case was deficient in making out his allegations.
The respondent pressed its Application in a Case and sought summary dismissal of the matter. Ultimately, I decided to afford the applicant a further opportunity to properly plead, or even expose, any legal issues in his case. Orders were made requiring the applicant to file and serve a further amended points of claim with “all necessary particulars” by 23 May 2012. To facilitate the applicant in properly presenting his legal arguments, the orders made on that occasion set out in detail, and with specificity, the issues that the amended points of claim needed to address and to which they should have regard. Orders were also made on that occasion listing the respondent’s Application in a Case, and if necessary, the applicant’s application, for hearing on 15 June 2012.
For the sake of completeness, I note the orders made on that occasion:
“(1) The applicant file and serve an amended Points of Claim by 23 May 2012. The amended Points of Claim is to have regard to, and must address, the following:
(a) To the extent that the applicant alleges discrimination as defined in s.9 of the Racial Discrimination Act 1975 (Cth), the amended Points of Claim
(i) specify each act alleged to constitute a distinction, exclusion, restriction or preference against the applicant;
(ii) in respect of each such act, specify when and where each act is alleged to have occurred and by whom each such act is alleged to have been performed;
(iii) in respect of each such act, identify the person or persons with whom the applicant alleges comparison should be made; and
(iv) set out each fact and circumstance by reference to which it is alleged that each such act constituted a distinction, exclusion, restriction or preference against the applicant.
(b) To the extent that the applicant alleges discrimination as defined in s.10 of the Racial Discrimination Act 1975 (Cth), the amended Points of Claim:
(i) specify the law, or a provision of the law, of the Commonwealth or a factually relevant State or Territory by which it is alleged that the applicant does not enjoy, or enjoys to a more limited extent, a right enjoyed by other persons of another race, colour, or national or ethnic origin;
(ii) in respect of each such law, identify the person or persons with whom the applicant alleges comparison should be made;
(iii) set out each fact and circumstance by reference to which it is alleged that by operation of such law, or a provision of law, the applicant does not enjoy, or enjoys to a more limited extent, a right enjoyed by other persons of another race, colour, or national or ethnic origin.
(c) To the extent that the applicant alleges discrimination as defined in s.11 of the Racial Discrimination Act 1975 (Cth), the amended Points of Claim:
(i) specify each act of refusal to allow the applicant access to or use of any place or vehicle members of the public, or a section of the public, are entitled or allowed to enter or use; or
(ii) specify each act of refusal to allow the applicant access to or use of any place or vehicle members of the public, or a section of the public, are entitled or allowed to enter or use except on terms or conditions less favourable than those to which the public, or a section of the public, are subject; or
(iii) specify each act requiring the applicant to leave or cease to use any place or vehicle members of the public, or a section of the public, are entitled or allowed to enter or use; and
(iv) in respect of each such act, specify when and where each such act is alleged to have occurred and by whom each such act is alleged to have been performed;
(v) in respect of each such act, identify the person or persons with whom the applicant alleges comparison should be made;
(vi) set out each fact and circumstance by reference to which it is alleged that such refusal or failure occurred by reason of the applicant’s race, colour, or national or ethnic origin.
(d) To the extent to which the applicant alleges discrimination as defined in s.13 of the Racial Discrimination Act 1975 (Cth), the amended Points of Claim:
(i) specify each act of refusal or failure to supply goods or services to the applicant; or
(ii) specify each refusal or failure to supply goods or services to the applicant except on les favourable terms or conditions; and
(iii) in respect of each such refusal or failure, specify where and when such refusal or failure is said to have occurred, and by whom each such refusal or failure is said to have been made;
(iv) in respect of each such refusal or failure, identify the person or persons with whom the applicant alleges comparison should be made;
(v) set out each fact and circumstance by reference to which it is alleged that such refusal or failure occurred by reason of the applicant’s race, colour, or national or ethnic origin.
(e) To the extent to which the applicant alleges discrimination as defined in s.15(1)(a) of the Racial Discrimination Act 1975 (Cth), the amended Points of Claim:
(i) specify each alleged refusal or failure to employ the applicant for work for which the applicant is qualified;
(ii) in respect of each such act, specify when and where each such act is alleged to have occurred and by whom each such act is alleged to have been performed;
(iii) in respect of each such act, identify the person or persons with whom the applicant alleges comparison should be made; and
(iv) set out each fact and circumstance by reference to which it is alleged that such refusal or failure occurred by reason of the applicant’s race, colour, or national or ethnic origin.
(f) To the extent to which the applicant alleges discrimination as defined in s.16 of the Racial Discrimination Act 1975 (Cth), the amended Points of Claim:
(i) specify the advertisements or notices alleged to indicate an intention to act unlawfully pursuant to Part II of the Racial Discrimination Act 1975 (Cth);
(ii) in respect of each such advertisement or notice, specify where and when each such advertisement or notice is alleged to have been published or displayed.
(g) To the extent to which the applicant alleges discrimination as defined in s.18C of the Racial Discrimination Act 1975 (Cth), the amended Points of Claim:
(i) specify each act alleged to constitute offensive, insulting, humiliating or intimidating behaviour directed against the applicant, noting the effect of s.18C(2);
(ii) in respect of each such act, specify when and where each such act is alleged to have occurred and by whom each such act is alleged to have been performed;
(iii) in respect of each act, set out each fact and circumstance by reference to which it is alleged that the act constituted offensive, insulting, humiliating or intimidating behaviour.
(2) The amended Points of Claim must contain all necessary particulars.
(3) This matter is adjourned to Monday 28 May 2012 at 10am for hearing of any objection by the respondent to the subpoenas issued by the applicant, and served on the respondent.
(4) The respondent’s application for summary dismissal made on 20 April 2012 and, if necessary, the applicant’s application is listed for hearing on Friday 15 June 2012 at 9.30am.
(5) The parties to file and serve any evidence by way of affidavit, and an outline of written submissions, by Friday 8 June 2012.
(6) The costs of today are reserved.”
On 22 May 2012 a further amended points of claim (“FAPOC”) was filed by the applicant. That document, for the most part, reiterated what was in the previous amended application and points of claim. [I note that while that document is titled “Amended Applicant’s Points of Claim” and referred to by the respondent in both oral and written submissions as the “amended points of claim”, for the sake of clarity and for the purposes of this judgment, it will be referred to as the further amended points of claim (FAPOC).]
The Originating Application Ultimately Before the Court
Ultimately, the application before the Court, that is the FAA filed on 11 April 2011, sought the following orders:
“…
Compensation of fifteen million dollars for the unlawful discrimination. This amount factored in sums for:
Relief as follows
· ADC destroyed my future, damaging my reputation and embarrassed me deliberately.
· Sold my clinic in Egypt and quitted my public hospital job.
· Invested a lot in courses preparing for the exam
· Equipment, set up and materials
· Exam fees accommodation and travelling cost
· lost earning capacity since 2005 and will continue through for another six years at least
· Time , money and effort waste
· pain suffering stress and depression
· I ended with no career or experience
· interest; and Dignity
· prestige and self esteem
· Debts and interest
· I will have to build up my career again which will take me a few years to achieve”
The grounds of that application were in the following terms:
“Under racial discrimination act 1975
Under section 9, section 10, section 15 and section 18c
A - I applied to sit for July series exams on 2008 and discriminatory I have been allocated to end of September 2008 as a result of my OET English test validity came to expiry and had to resit it again, as per S 9 involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin and S 10 RD that is to different to my colleagues as if I would be allocated for June or July I would be able to apply for November series of the same year and without having to redo my English test and the priority policy of the dental council, S 10 (right of equality before the law)
B – ADC sent me an application form not for the following series of the exam but instead it was different to my Colleagues and the application was stating the second series of the exam (November series 2009 instead of July 2009), and that is a breach to ss9
C – as per S 9 involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin and S 10 The case I had in the second attempt 2010 for CD2 was not a case for a GP dentist and was different to all the other candidates cases, it is a specialist, the time for management of the case in the exam is only one hour and that include history taking Examination probing and cleaning which was not enough at all for this case I had, as well the case was so sensitive for any touch that She needed anaesthesia for the upper and lower arch and the nurse passed me the long needle for the upper arch and I had to Change it then, after all my hard work and all my handling to that tough case they discriminatory failed me.
D – Examiner CD2 July 2011 deliberately treated me in an aggressive, harsh and impolite way indicating obvious racism . as per S 9 involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin, S 10, S 18 c
E – While Westmead examination centre are known to be less racist for overseas from Asian and Arabic background I have been only allocated to Sydney dental hospital twice over two years (please note that the exams are held in the two Centres at the same time). S9 involving a distinction, exclusion, restrictions or preference based on race, colour, descent or national or ethnic origin and S 10
F – ADC was sending discriminatory e mails at the very wrong times as a means of intimidation as I received e mail stating that we have to submit an important documents which was supposed to be submitted two month before (closing date) , while I have already submitted those documents more than two month before the exam and that is a breach of S 9 involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin and S 10 (1) Rights to equality before the law
G – On 2010 ADC for the first and only time sent me an e mail twice advising that results have been posted and I was the only one who didn’t receive the results after waiting and then ringing and begging the ADC and then advised to send an email so they can post it to me, by the time I received it, it was only 5 working days left to get the money and the application ready to apply before the closing date end of July to resit the final exam and that is a breach of S 9 involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin and S 10 (1) Rights to equality before the law, S 11 Access to places and facilities, S 13 Provision of goods and services
H – Following the previous and at August and as scheduled by the Australian Dental Council, I have been informed discriminatory that (people who fail twice are not successful in the sequencing attempts and that is something you have to take into your account), that is a breach of S 9 involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin and S 10 (1) Rights to equality before the law
I – In the final exam October 2011, the supplementary I was the only one that have the phantom set up was very loose and supported by towel and I had to tighten it every few minutes which was significantly disturbing and obstructive and that is a breach of S 9 involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin and S 10 (1) Rights to equality before the law
G – The ADC discriminatory policy for the Public Sector Dental Workforce Scheme (PSDWS) as they get exemption
from the preliminary exam is a breach for the law of equal opportunities to all no matter of the background race religion and colour. and that is a breach of S 9 involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin and S 10 (1) Rights to equality before the law and 16 Advertisement s.
H - My results which is different every exam for every component is based on discrimination and as a result I failed, that is a breach of S 15 (1) (a), S 10 Rights to equality before the law and S 9 involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin”
[Emphasis in original.]
When the grounds of the FAA are considered in conjunction with the FAPOC, I ultimately understood that the applicant’s complaints could be broadly summarised as follows:
1)The respondent provided the applicant with an application form to undertake a clinical examination in September 2008, not July 2008. As a result of being allocated that later sitting, when the applicant was unsuccessful in passing his clinical examination, he was unable to re-take the examination prior to the expiration of his OET results in February 2009. As such, he was required to “re-sit” his OET examination in June 2009 ((A) of the FAA and (A), (B) and (5) of the FAPOC – “complaint one”)
2)Similarly, the applicant was provided with an application form for the November 2009 clinical examination, not the earlier July 2009 sitting of that examination ((B) of the FAA and (B) and (6) of the FAPOC – “complaint two”).
3)In July 2010 when the applicant “re-sat” the clinical examination he was allocated a case which was not suitable for a general practitioner dentist. It was suitable for a “specialist” dentist. As a result, the applicant had insufficient time to deal with the “specific case” set for him, particularly as the patient was “sensitive for any touch” and required anaesthesia ((C) of the FAA and (G) and (7) of the FAPOC – “complaint three”).
4)When he completed the clinical examination in July 2011 the examiners treated him in an “aggressive, harsh and impolite way indicating racism” ((D) of the FAA and (C) and (8) of the FAPOC – “complaint four”). [No further particulars are provided.]
5)Although there are two possible locations in Sydney, the applicant was allocated to the Sydney Dental Hospital on both occasions that he undertook the examination in Sydney. The other examination centre, Westmead, is “… known to be less racist for overseas from Asian and Arabic background” ((E) of the FAA and (D) and (9) of the FAPOC – “complaint five”).
6)The respondent “… was sending discriminatory e mails at the very wrong times as mean of intimidation” ((F) of the FAA and (E) and (10) of the FAPOC – “complaint six”).
7)In 2010 the applicant was advised by email that his examination results were available. However, he did not receive the results and “… it took almost 8 days deliberately after their notice” till he received them. By the time he had received his results, it only allowed him five days to apply for a re-sit, and it was “too hard to make the fees ready before the closing date …” ((G) of the FAA and (F) and (11) of the FAPOC – “complaint seven”).
8)He had been “informed” that people who fail the clinical examination twice are not successful on subsequent attempts ((H) of the FAA and (H) and (12) of the FAPOC – “complaint eight”).
9)In October 2011 the applicant re-sat the clinical examination. On that occasion the “… phantom set up was very loose” ((I) of the FAA and (G) and (13) of the FAPOC – “complaint nine”).
10)The Public Sector Dental Workforce Scheme was discriminatory “… as they get exemption from the preliminary exam …” ([second] (G) of the FAA and (14) of the FAPOC – “complaint ten”).
11)The applicant’s results were different for each component in each of his exams, the result being that he failed ([second](H) of the FAA – “complaint eleven”).
12)The examiners did not rotate in a “fair way”. In particular, the applicant had the same examiner for a component of his clinical exam in Sydney in July 2011 and his supplementary clinical examination in Adelaide in October 2011 ((J) of the FAPOC – “complaint twelve”).
13)The ADC used to provide examination feedback and that feedback revealed that the examination did not have “sound and fair parameters for assessment.” Further, ADC has ceased to provide examination feedback ((15) of the FAPOC – “complaint thirteen”).
I understood that the applicant variously asserted that these events were examples of discrimination that he had suffered “based on” (s.9 of the RDA), “”by reason of” (ss. 10, 11, 13, 15(1)(a) and s.16 of the RDA) and/or “because of” (s.18C of the RDA) his Middle Eastern “race” and “Muslim ethnic” origin. [I note it was unclear which section each complaint was made under – see further below.]
Further, under the heading “Conclusion” in his FAPOC the applicant alleged that the ADC was trying to kill him by exposing him to stress.
The Relevant Legislation
The sections of the RDA said to be relevant to the applicant’s originating application are as follows.
Section 9:
“Racial discrimination to be unlawful
(1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.
(1A) Where:
(a) a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and
(b) the other person does not or cannot comply with the term, condition or requirement; and
(c) the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life;
the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person's race, colour, descent or national or ethnic origin.
(2) A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention.
(3) This section does not apply in respect of the employment, or an application for the employment, of a person on a ship or aircraft (not being an Australian ship or aircraft) if that person was engaged, or applied, for that employment outside Australia.
(4) The succeeding provisions of this Part do not limit the generality of this section.”
Section 10:
“Rights to equality before the law
(1) If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first-mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.
(2) A reference in subsection (1) to a right includes a reference to a right of a kind referred to in Article 5 of the Convention.
(3) Where a law contains a provision that:
(a) authorizes property owned by an Aboriginal or a Torres Strait Islander to be managed by another person without the consent of the Aboriginal or Torres Strait Islander; or
(b) prevents or restricts an Aboriginal or a Torres Strait Islander from terminating the management by another person of property owned by the Aboriginal or Torres Strait Islander;
not being a provision that applies to persons generally without regard to their race, colour or national or ethnic origin, that provision shall be deemed to be a provision in relation to which subsection (1) applies and a reference in that subsection to a right includes a reference to a right of a person to manage property owned by the person.”
Section 11:
“Access to places and facilities
It is unlawful for a person:
(a) to refuse to allow another person access to or use of any place or vehicle that members of the public are, or a section of the public is, entitled or allowed to enter or use, or to refuse to allow another person access to or use of any such place or vehicle except on less favourable terms or conditions than those upon or subject to which he or she would otherwise allow access to or use of that place or vehicle;
(b) to refuse to allow another person use of any facilities in any such place or vehicle that are available to members of the public or to a section of the public, or to refuse to allow another person use of any such facilities except on less favourable terms or conditions than those upon or subject to which he or she would otherwise allow use of those facilities; or
(c) to require another person to leave or cease to use any such place or vehicle or any such facilities;
by reason of the race, colour or national or ethnic origin of that other person or of any relative or associate of that other person.”
Section 13:
“Provision of goods and services
It is unlawful for a person who supplies goods or services to the public or to any section of the public:
(a) to refuse or fail on demand to supply those goods or services to another person; or
(b) to refuse or fail on demand to supply those goods or services to another person except on less favourable terms or conditions than those upon or subject to which he or she would otherwise supply those goods or services;
by reason of the race, colour or national or ethnic origin of that other person or of any relative or associate of that other person.”
Section 15:
“ Employment
(1)It is unlawful for an employer or a person acting or purporting to act on behalf of an employer:
(a) to refuse or fail to employ a second person on work of any description which is available and for which that second person is qualified;
(b) to refuse or fail to offer or afford a second person the same terms of employment, conditions of work and opportunities for training and promotion as are made available for other persons having the same qualifications and employed in the same circumstances on work of the same description; or
(c) to dismiss a second person from his or her employment;
by reason of the race, colour or national or ethnic origin of that second person or of any relative or associate of that second person.
(2) It is unlawful for a person concerned with procuring employment for other persons or procuring employees for any employer to treat any person seeking employment less favourably than other persons in the same circumstances by reason of the race, colour or national or ethnic origin of the person so seeking employment or of any relative or associate of that person.
(3) It is unlawful for an organization of employers or employees, or a person acting or purporting to act on behalf of such an organization, to prevent, or to seek to prevent, another person from offering for employment or from continuing in employment by reason of the race, colour or national or ethnic origin of that other person or of any relative or associate of that other person.
(4) This section does not apply in respect of the employment, or an application for the employment, of a person on a ship or aircraft (not being an Australian ship or aircraft) if that person was engaged, or applied, for that employment outside Australia.
(5) Nothing in this section renders unlawful an act in relation to employment, or an application for employment, in a dwelling-house or flat occupied by the person who did the act or a person on whose behalf the act was done or by a relative of either of those persons.
Section 16:
“Advertisements
It is unlawful for a person to publish or display, or cause or permit to be published or displayed, an advertisement or notice that indicates, or could reasonably be understood as indicating, an intention to do an act that is unlawful by reason of a provision of this Part or an act that would, but for subsection 12(3) or 15(5), be unlawful by reason of section 12 or 15, as the case may be.”
Section 18C:
“Offensive behaviour because of race, colour or national or ethnic origin
(1) It is unlawful for a person to do an act, otherwise than in private, if:
(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.
Note: Subsection (1) makes certain acts unlawful. Section 46P of the Australian Human Rights Commission Act 1986 allows people to make complaints to the Australian Human Rights Commission about unlawful acts. However, an unlawful act is not necessarily a criminal offence. Section 26 says that this Act does not make it an offence to do an act that is unlawful because of this Part, unless Part IV expressly says that the act is an offence.
(2) For the purposes of subsection (1), an act is taken not to be done in private if it:
(a) causes words, sounds, images or writing to be communicated to the public; or
(b) is done in a public place; or
(c) is done in the sight or hearing of people who are in a public place.
(3) In this section:
‘public place’ includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.”
Before the Court
The application presently before the Court is the respondent’s Application in a Case, made on 20 April 2012.
In support of that application the respondent relied on written submissions filed on 8 June 2012, and the affidavit of Ms Victoria Huntington, solicitor, sworn on 20 April 2012, annexed to which are copies of correspondence between the respondent’s solicitors and the applicant. Specifically:
1)A letter dated 4 April 2012, marked annexure “A”, which details issues (as identified by the respondent) in the applicant’s amended application, affidavit and points of claim. Further, that letter proposes that the applicant serve a further amended application, amended points of claim and affidavit by 16 April 2012. That letter also advised the applicant of the respondent’s intention to file an Applicant in a Case seeking summary dismissal of the matter should the applicant not file the amended documents as proposed.
2)An undated letter from the applicant, marked annexure “B”, acknowledging receipt of the previous letter and advising of his intention to file the requested documents on or before 16 April 2012.
3)A letter dated 18 April 2012, marked annexure “C”, in which the respondent advises that the further amended application, amended points of claim and affidavit filed by the applicant on 11 April 2011 do not address the complaints raised by the respondent and that an Application in a Case for summary dismissal will be filed.
The applicant sought leave to read and rely upon his affidavits made on 26 March 2012, 10 April 2012 and 7 June 2012 respectively. The respondent had numerous objections to all of those affidavits. Those objections had been reduced to writing (and that document was filed in Court).
However, in the circumstances (including the Court’s intention to give an unrepresented applicant opportunity to prosecute and explain his case) leave was granted provisionally for the applicant’s affidavits to be before the Court. The applicant was granted leave to file written submissions addressing the respondent’s objections to those documents by 6 July 2012.
On 6 July 2012 the applicant filed a further affidavit. That further affidavit, although referring initially to the document in which the respondent set out its objections (see [4] – [5] of that affidavit and as set out at [93] below), primarily reiterates the applicant’s various assertions as set out in his earlier documents filed with the Court. Further, it annexes numerous documents, including the respondent’s document setting out its objections to the applicant’s affidavits, the initial AHRC complaint and documents that had originally been provided as an annexure to the affidavit of Mr Keith Edward Watkins, made on 25 May 2012 (not before the Court for the purpose of the Application in a Case).
Given what was set out at [5] of that the applicant’s affidavit of 6 July 2012 (“I make this affidavit in respond to Annexure ‘A’ [the document setting out the respondent’s objections to the applicant’s various affidavits] to ensure that the evidence submitted in these proceedings comply with the Evidence Act.”), I ultimately understood the affidavit to be by way of written submissions in response to the objections raised by the respondent to the applicant’s various affidavits.
The Respondent’s Submissions
In written submissions, and through counsel before the Court, the respondent set out that, under s.17A of the FMC Act, the Court has the power to give summary judgment when the Court is satisfied that the “… other party has no reasonable prospect of successfully prosecuting the proceedings …” (s.17A(2)(a) of the FMC Act, see [16] above). Further, that that power should be construed in accordance with the approach adopted in relation to s.31A of the Federal Court Act 1976 (Cth). The Court was urged to make a “practical judgment”, taking into account not only the way the applicant sought to frame his case but also the evidence he sought, or was able, to put before the Court.
The respondent argued that there were three bases in the current case on which the application could be said to have no reasonable prospect of success.
The first basis was said to be that the FAPOC, despite opportunity and orders setting out in great detail what was required in that document, failed to articulate in any sensible way a reasonable cause of action against the respondent. In the legal sense, the FAPOC was “embarrassing”.
Mr Adair submitted that the FAPOC was “embarrassing” as it failed to set out the material facts relied upon with sufficient clarity (Gunns Ltd v Marr [2005] VSC 251 (“Gunns”) at [14] – [15]). First, it failed to properly identify what the applicant alleged was adversely done to him by the ADC. Second, the FAPOC failed to identify the basis on which the applicant contended that the alleged conduct was done “because of”, “based on”, or “for reason of” his race or ethnic origin.
While the respondent noted that the applicant was required to, and had failed to, meet that obligation with respect to all of his complaints, it argued that (in accordance with the second basis – see further below) his complaints under ss. 10, 11, 13, 15 and 16 of the RDA exceeded the jurisdiction of the Court and, if the respondent was successful on the second basis, then the pleadings to the Court only needed to be found lacking with respect to s.9 and s.18C of the Act to be “embarrassing” ([22] of the respondent’s written submissions). That is, that since the other allegations were outside the jurisdiction given to the Court, it was irrelevant whether they were properly pleaded or not.
The second basis on which the respondent asserted that the application had no reasonable prospects of success was that a number of the allegations raised in the FAPOC and FAA to the Court were not the subject of the original complaint to the AHRC and therefore were outside the Court’s jurisdiction. In particular, Mr Adair submitted that the allegations made at [5] to [14] of the FAPOC related to complaints, or factual matters, that were of a different substance and did not arise out of the terminated complaint.
The third basis on which the applicant’s complaint was said to have no reasonable prospects of success was in relation to the applicant’s evidence. First, if the Court upheld the respondent’s objections to the various affidavits of the applicant, then there was an absence of admissible evidence before the Court that could ground the applicant’s case. In the alternate, even if the Court was minded to allow the applicant’s affidavits into evidence (over the objection of the respondent) the material in those documents could not be afforded much weight. Nor was it of such a nature that it could satisfy the Court that the ADC had breached the RDA.
The Applicant’s Oral Submissions
In his oral submissions to the Court the applicant sought to reiterate the alleged instances of discrimination set out in his FAPOC and FAA. Further he took the Court to various “marking discrepancies” in the documents produced as an annexure to the affidavit of Mr Watkins (not before the Court), sections of which had been subsequently annexed to the applicant’s affidavit of 7 June 2012 (which was provisionally before the Court).
In addition the applicant claimed that the ADC had deliberately set out to “destroy” him. The applicant claimed that the respondent had damaged his future, affected his mental health and ruined his relationship with his friends. Further, that he had been embarrassed in front of his family as he had failed to achieve registration as a dentist. The applicant expressed dismay at the actions of the ADC in
“under-assessing” him, particularly as he had worked hard for over four years as a taxi driver in order to pay the costs of sitting the relevant examinations.
Consideration
Even if all of the applicant’s assertions in his affidavits were to be admitted into evidence before the Court [see further below], and considered with all of his complaints in all of the documents he has put before the Court, at best and as best as they can be understood, the applicant’s application to the Court, and as further amended, has no reasonable prospect of success.
While the reasons that follow provide specificity in support of that finding, in essence the applicant has failed to understand, or if he does understand, failed to put to the Court, the connection between his assertions of fact (for example, the circumstances of his sitting for various examinations set by the respondent), the events on which those assertions are said to be based, and, far more importantly, how or whether those assertions reveal any causal link between the alleged conduct of the respondent and any discrimination under the RDA.
Mere, and repetitious, insistence that the respondent engaged in discriminatory conduct under the RDA is not sufficient to make out the applicant’s case. Nor, relevantly, is it sufficient to provide any basis for his case such that some prospect of success could be discerned. It is clear from his presentation before the Court that the applicant either does not understand this, refuses to accept it, or needs to convince himself that it is true as justification, and explanation, for his own failure to meet the standards as set by the examiners of the ADC.
Ultimately, the Court can only proceed on, and in light of, the evidence presented and the coherent articulation of breaches of the relevant statute by the respondent based on the evidence. Steps have been taken to assist this unrepresented applicant to frame his complaints with some degree of clarity and to make them capable of comprehension in a sense relevant to the nature of the proceedings which the applicant has initiated.
Some may view the Court’s opportunity to the applicant on 2 May 2012 (see [19] – [20] above) as being generous in circumstances where, after all, the nature of these proceedings is adversarial and where each party is required to make out their own case and to seek to understand how to go about properly doing that. Nonetheless I saw it as being in the interests of the administration of justice to provide an unrepresented applicant with a real, and final, opportunity to present a cogent case based on probative evidence given his determination to prosecute these proceedings.
The applicant’s failure to connect the complaints to the RDA, even if they were to be taken in some evidentiary context (putting aside the various relevant rules of evidence), makes the applicant’s case one that has no reasonable prospect of success.
The applicant’s difficulty is also compounded by his lack of understanding of the import and purpose of various sections of the RDA on which he says he seeks to rely. He has certainly not explained how his circumstances, as presented, and at their highest can, in particular, relate to:
1)Section 10 of the RDA – “Rights to equality before the law” - which concerns the certain application of provisions of Commonwealth and State and Territory laws that conflict with the RDA. This is not applicable to the applicant’s complaint before the Court which relates to the Australian Dental Council, not any laws of the Commonwealth, nor a State or Territory.
2)Section 11 of the RDA – “Access to places and facilities” – which deals with access to, and use of, public facilities. Similarly, this provision does not relate to the applicant’s claims before the Court as, as presented in his various documents before the Court, none of his complaints relate to access to, and use of, public facilities.
3)Section 15 of the RDA – “Employment” – this is self evident. There is no question of any employment relationship, or potential employment relationship, between the applicant and the ADC.
4)Section 16 – “Advertisements” – this is also self evident.
I cannot I see that any further postponement of the final consideration of this matter could assist the applicant. As set out above, he has had a reasonable, indeed generous, opportunity to advance his case. I am satisfied that the offer of any further opportunity would be an exercise in futility.
From the applicant’s oral submissions to the Court, it was clear that he felt some pride in having achieved a dental qualification in his home country, Egypt. Having come to Australia the applicant sought to have that qualification recognised through the conferral of registration by the ADC. He worked hard in Australia to achieve that outcome, on his own assertion, working as a taxi-driver for numerous years. In those circumstances it is somewhat understandable that the applicant would not, or could not, accept that his failure to obtain recognition as a dentist in Australia was due to some deficiency on his part. That is particularly so in circumstances where, on his assertion (in his affidavit), his family and friends, including those in Egypt, expected him to obtain such recognition, and his failure to do so was “embarrassing” to him.
In those circumstances also, it can be understood that the applicant may seek out some other reason, external from himself, to explain his inability to obtain recognition and registration as a dentist in Australia. Further, it was clear from the applicant’s submissions to the Court that he sincerely believed that his lack of success was the result of racial discrimination. However, despite opportunity and repeated attempts by this Court to direct his mind to it, he has failed to present a properly articulated legal argument based on evidence probative of the assertions he sought to advance or even to advance some probative basis on which the Court could rely to allow further opportunity to him. In those circumstances, as submitted by the respondent, his application has no reasonable prospects of success.
In my view, each of the respondent’s bases, or reasons, for summary dismissal of the application are made out and both individually (in relation to the second basis only those complaints that survive consideration of that basis), and certainly collectively, provide a basis for such disposition of the substantive application before the Court
The First Basis of the Application in a Case
As submitted by the respondent, pleadings are said to be legally “embarrassing” if they fail to set out with sufficient clarity the material facts relied upon (Gunns at [14] – [15]). In the current case, the applicant was required to first identify with sufficient clarity the alleged discriminatory conduct, and second to demonstrate that the conduct of which he complained was either “based on”, “by reason of” or “because of” his race or ethnic origin (variously, ss.9, 10, 11, 13, 15, 16 and 18C of the RDA).
I should note in this context that the second basis on which the respondent submitted that the application had no reasonable prospects of success was that the applicant’s claims with respect to ss.10, 11, 13, 15 and 16 of the Act exceeded the jurisdiction of the Court ([22] of written submissions). Therefore, even if properly pleaded, his claims with respect to those sections would not reveal a reasonable prospect of success. For the reasons set out below, I agree with Mr Adair (see further below under: “The Second Basis of the Application in a Case”), although only with respect to the applicant’s fifth, eight and tenth complaint as set out at [24] above and his additional complaint (see [26] and [49] above) (see further at [83] – [90] below).
For that reason, I need only proceed to consider whether the applicant’s remaining complaints are properly pleaded. However, given that the applicant failed to ever identify clearly which complaint related to which section of the RDA, I have considered all the sections raised. Although, in light of what is set out at [56] above.
First, therefore, it is still not entirely clear from the applicant’s FAPOC what section of the RDA his alleged instances of discrimination are made under. The FAA makes reference to eleven alleged instances of discrimination by the ADC and the sections of the RDA that the applicant believes were breached by those instances or acts. The FAPOC makes reference, in part, to those allegations, and to the various sections of the RDA that they allegedly breach. [I note that the FAPOC alleges that those acts were in breach of the same, and additional, sections of the RDA.] The FAPOC also alleges three further matters, none of which are linked to any section of the RDA (complaints twelve and thirteen – see [24](12) and (13) – and that the ADC was trying to “kill” him – see [26]).
The alleged instances of discrimination are described as, at best, broad assertions. They include claims that “the examiners deliberately treated me in an aggressive, harsh and impolite way” (complaint four – see [24](4) above and (D) of the FAA and (C) and (8) of the FAPOC) and that the “ADC was sending strange emails at the very wrong times” (complaint six - see [24](6) above and (F) of the FAA and (E) and (10) of the FAPOC).
The “particulars” in the FAPOC do little, if anything, to clarify the applicant’s claims. Those particulars refer to various sections of the RDA without applying them to the claimed factual events. Nor do those particulars provide any link between the applicant’s assertion of factual matters and the allegation that those matters were “based on”, “by reason of” and/or “because of” racial discrimination by the ADC. Rather, those particulars appear to reiterate and restate the applicant’s broad allegations of discrimination. As such, the applicant cannot be said to have set out the material facts with sufficient clarity such that the respondent is able to identify, and answer, the case against it. Nor for that matter, provide a basis for the Court to engage in any further meaningful consideration.
Second, and flowing from the above, the applicant is required to demonstrate that those alleged instances of discrimination were variously “because of”, “by reason of”, or “based on” his race/ethnicity.
As submitted by the respondent, s.9(1) of the RDA has been held to require that the applicant demonstrate a “sufficient connection” between the conduct complained of and his race/ethnicity (Macedonian Teachers’ Association of Victoria Inc v Human Rights & Equal Opportunity Commission & Anor [1998] FCA 1650). In this case, the applicant’s has failed to demonstrate such a connection.
Similarly, ss.9(1A), 10, 11, 13 and 15 of the RDA require that the applicant establish, by way of a causal link, that the action complained of was done “by reason” of his race and ethnicity (Commonwealth v McEvoy (1999) 94 FCR 341 at 353). Further, s.18C requires that the applicant establish that the impugned act was done “because of” his “race, colour or national or ethnic origin”. The applicant has failed to make the relevant causal link in relation to any of his complaints.
At the hearing, I alerted the applicant to the need for him to identify a link, or connection, between the alleged conduct of the ADC and his race or religion. I explained to the applicant that he had raised a number of factual matters and asserted that those factual matters occurred because of racial discrimination, but that he had failed to explain why or how those factual matters were “because of”, “by reason of”, or “as a result of” racial discrimination. The applicant failed to address that lacuna in his argument and, instead and in response, stated that the discrimination was obvious and that “… every step of what happened to me, I see as discrimination”.
An example of this was the applicant’s insistence that his name (“Mohamed”) was such as to easily identify him as being from a particular ethnic (or racial) group (although not pressed as such, but raised generally, also a particular religious group). Even if that were so, and to have been so at the relevant times, the applicant was unable to explain how his name on its own, or his race and ethnicity, resulted in him being discriminated against. A mere and convenient assumption in this regard is not adequate for the purpose of this litigation.
The applicant’s subjective view and interpretation of events is not sufficient on its own and, in the absence of anything further, does not approach the test required to determine his complaints. Those complaints must be found, on balance, to be objectively made out. With reference to s.18C(1)(a) of the Act, an “… objective test must be applied in determining whether the act complained of has the necessary offensive, insulting, humiliating or intimidatory quality for it to be within the sub-section” (Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615 at [15] per Drummond J and see also Creek v Cairns Post Pty Ltd [2001] FCA 1007 at [12] per Kiefel J and Jones v Scully [2002] FCA 1080 at [98] per Hely J).
The applicant’s highly subjective approach only serves to divert, or distract, his case away from the statutory requirement. In that sense it underscores the respondent’s charge of “embarrassing”.
The respondent is successful in its arguments on the first basis.
The Second Basis of the Application in a Case
As submitted by the respondent, the Court’s jurisdiction to consider an application is constrained by the allegations, and the factual matrix supporting those allegations, that were the subject of the complaint to the AHRC. Upon termination of that complaint, this Court has jurisdiction to hear an application. However, s.46PO(3) of the AHRC Act requires that the allegations in the application to the Court be the same as, or not raise new or different allegations to, those the subject of the terminated complaint.
The respondent sought to rely on Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573 (“Fuji Xerox”) (at [41] per Katz J), for the proposition that while there was some latitude for an applicant to make allegations that were different “to a certain extent” to those the subject of the earlier complaint to the AHRC, those “new” allegations must arise out of the conduct or factual matters alleged in the AHRC complaint.
In this case, the applicant’s complaint to the AHRC was centred around, at best for the applicant, four broad allegations. Those allegations are set out at [7] above. As understood from his FAPOC and FAA, the applicant raises a number of additional complaints before the Court (see [24] and [26] above). However, as is clear from relevant authorities, the applicant can make a complaint to this Court that is of a different character to his complaint to the AHRC provided that “those facts are not different in substance” (Vijayakumar v Qantas Airways Limited [2009] FMCA 736 and Fuji Xerox at [39]).
In those circumstances, and as set out by Driver FM in Hollingdale v Northern Rivers Area Health Service [2004] FMCA 721 (“Hollingdale”) (at [10]), the relevant starting point is to determine the parameters of the terminated complaint. In doing so, the Court should consider the “shape” which the complaint had taken at the time of termination (Hollingdale at [10] and Travers v New South Wales [2000] FCA 1565].
In the current case the complaint was made by the applicant by way of email sent to the AHRC on 16 December 2011 (attachment “B” to the originating application). The applicant subsequently advised, by email dated 16 January 2012, that he wished for that complaint to be terminated (see attachment “A” to the originating application). On 19 January 2012, also by email, the ADC advised that it did not object to the complaint being terminated (attachment “A” to the originating application) and, on 1 February 2012, the AHRC proceeded to terminate the applicant’s complaint. In those circumstances, the applicant’s complaint before the AHRC did not develop, or take shape, beyond its initial form.
The form of that initial complaint (and given what is set out above, the form of the final complaint) can be best described as a “narrative”. It alleges racial discrimination. It refers to several acts by the ADC that are alleged to be examples of that discrimination. Further, it alludes to the fact that “both direct and indirect” discrimination were “practised” by the ADC. Broadly, that complaint can be said to encompass the following:
1)The ADC repeatedly “failed” the applicant in his examinations because of his race, “being from the middle east”, and because of a complaint the applicant made against the ADC to “some government body”.
2)The applicant was discriminated against in the timing of the clinical examination “re-sits” that he was offered by the ADC.
3)The ADC’s assessment policies were inaccurate, without sound grounds and allowed for the applicant to be assessed based on his “look, race and religion”.
4)The ADC intimidated the applicant by sending him his results and various emails in a “strange” way.
In its notice of termination the AHRC makes clear that it considered the applicant’s complaint under ss.9, 13, 18A and 27 of the RDA. That is, that the applicant’s complaints related to the provision of goods and services, as well as victimisation, under the RDA.
On the other hand the applicant’s complaints to the Court, as summarised at [24] above, are made with reference to ss.9, 10, 11, 13, 15, 16 and 18C of the RDA.
The respondent’s submissions focused on the sections of the RDA and alleged that the applicant’s complaint to the Court, with respect to ss.10, 11, 13, 15, and 16 of the RDA, exceeded the scope of the complaint terminated by the AHRC commission. As referred to above (see at [62] – [63], and in light of [56]), given that it was unclear which section each complaint was made under, I considered it necessary to examine the nature of the applicant’s various complaints and determine whether those fell within the scope of the terminated AHRC complaint, as opposed to examining the various sections.
Furthermore, the fact that the applicant has sought to give the facts of the complaint before the AHRC a different legal character does not mean that those allegations fall outside the scope of the terminated complaint. Rather, it merely recognises the nature of the different proceedings before this Court and the AHRC.
However, with reference to the applicant’s terminated complaint (see [80] above) and his complaint to the Court (see [24] above), the following observations can be made:
1)The first and second complaint to the Court (see [24](1) and (2) above) are within the scope of the initial complaint to the AHRC. That is, that the ADC discriminated against the applicant in the timing of the examination “re-sits” he was offered.
2)The third complaint made by the applicant, that is, that he was allocated a case for an assessment that was not suitable for a general practitioner dentist (see [24](3) above), is given as an example of the ADC’s alleged inaccurate and poorly grounded assessment procedures. It can be said to be within the scope of the AHRC complaint. The same can be said in relation to the applicant’s ninth, eleventh, twelfth and thirteenth complaints (see [24](9), (11), (12) and (13) above). That is, his allegation that in his 2011 clinical examination the “phantom set up was very loose”, that his results varied for each component each time he undertook the examination, that the examiners were not rotated fairly, and that the ADC had ceased to provide examination feedback.
3)The fourth complaint made by the applicant, that he was treated in an “aggressive, harsh and impolite way” by the examiners “indicating racism” (see [24](4) above), arises from the factual matters alleged in the terminated AHRC complaint. That is, it is an example of the more general assertion made in his AHRC complaint that he was discriminated against by the ADC in his examinations because of his race.
4)The sixth and seventh complaints (see [24](6) and (7) above), that is the sending of “discriminatory emails” and the transmission of his examination results clearly falls within the scope of the complaint terminated by the AHRC (see [80](4) above).
These complaints therefore are not available to be disposed on the respondent’s “second base”. They all however, as set out above (at [61] – [74]) fall within the first basis and, for the reasons set out above, are “embarrassing”.
I note that it is debatable whether complaint five, that is that the applicant was allocated twice to the Sydney Dental Hospital, despite Westmead Dental Hospital being “known to be less racist” (see [24](5) above), can be said to have arisen out of the AHRC complaint. In particular the applicant’s complaint in relation to the timing of the allocation of examination “re-sits”.
Complaint five, while not related to the timing of the examination
“re-sits”, is concerned with the location to which the applicant was assigned for those examinations. However, it raises the additional complaint that the examiners at the location to which the applicant was assigned exhibited racist conduct. On balance, I am of the view that it is an additional complaint that does not arise from the facts of, or the complaints made, in the AHRC complaint. However, even if it was said to have arisen from the AHRC complaint, it would still fail on the “first” basis, as set out above.
In addition to the complaints set out above, the following “new”, or “additional”, complaints were raised by the applicant before the Court:
1)He was informed that people who fail clinical examinations twice are not successful on subsequent attempts (complaint eight – see [24](8) above).
2)The Public Sector Dental Workforce Scheme was discriminatory (complaint ten - see [24](10) above).
3)That the ADC was trying to “kill” or “destroy” him (see [26] and [49] above).
Those complaints, having not been raised in the terminated AHRC complaint nor arising from the facts or conduct alleged in the AHRC complaint, are not within the jurisdiction given to this Court. As such, they are outside the scope of what can be considered by this Court. The respondent’s second basis succeeds in relation to those three complaints, as well as complaint five (see [88] above).
The Third Basis of the Application in a Case
In order to determine the third basis on which the respondent asserts that the application to the Court lacks reasonable grounds for success, it is first necessary that the Court consider the respondent’s objections to the three affidavits sought to be relied upon by the applicant. In determining those objections, the Court has had regard to the document headed “Respondent’s Objections to Applicant’s Evidence”, filed in Court on 15 June 2012, and the applicant’s “submissions” in reply as appear to be set out in his affidavit of 6 July 2012.
In essence, the respondent’s objections ranged from objections as to the form of the evidence to, more relevantly, objections to the substance of the affidavits. For example:
1)The applicant’s affidavit evidence was, in part, “… unfairly prejudicial; misleading or confusing; or will cause an undue waste of time” (s.135 of the Evidence Act 1995 (Cth) (“the EA”)). That complaint was made in relation to, amongst others, [1] of the applicant’s affidavit of 7 June 2012. That paragraph is in the following terms:
“Affidavit deed #1 – Affidavit provided by respondent KW-1 and KW-2 are showing evidence of how I was discriminated in the exam and how I had my life and my future destroyed by the dental council:
It is classified into two bundles,
A- One bundle that is called KW-2 where some examiners’ comments are redacted as well as some names but not all , which I have already received a copy of it by electronic mail as well as by postal mail.
B- Another bundle called KW-1 which is classified as confidential not much different to KW-2 instead certain names and comments were chosen to be hidden.
…”
[Emphasis in the original.]
2)The material contained in the applicant’s various affidavits was, in part, “evidence of a previous representation made by a person … to prove a fact …” in the proceedings (s.59 of the EA). That complaint was made by the respondent in relation to a number of parts of the applicant’s affidavit evidence, including, for example, the following ([second] [H] of the applicant’s affidavit of 26 March 2012):
“H – The ADC discriminatory policy for the Public Sector Dental Workforce Scheme (‘PSDWS’) as they get exemption
from the preliminary exam is a breach for the law of equal opportunities to all no matter of the background race religion and colour.”
3)That the applicant’s evidence purported to be an expert opinion (s.79 of the EA). That complaint was made in relation to several parts of the applicant’s various affidavits, including [3] of the applicant’s affidavit of 10 April 2012 which is in the following terms:
“Affidavit deed #3 - In July 2010 SDH second attempt The case I had for CD2 was not a case for a GP dentist and was different to all the other candidates cases, it is a specialist peridontist case, the time for management of the case in the exam is only one hour and that include history taking Examination probing and cleaning which was not enough at all for this specific case I had, as well the case was so sensitive for any touch that She needed anaesthesia for the upper and lower arch and the nurse passed me the long needle for the upper arch and I had to Change it then, after all my hard work and all my handling to that tough case they discriminatory failed me.”
The applicant’s affidavit of 6 July 2012/“submissions”, for the most part, fail to address the substance and breadth of the objections raised by the respondent. The affidavit of 6 July 2011/“submissions” simply provides, in relation to the admissibility of his affidavit evidence:
“…
4. On 15th June 2012 I received a copy of the objections which has been served by the respondent’s lawyer (Sparke Helmore) a copy of the objections is annexed to this affidavit and marked ‘A’.
5. On 15 June 2012, I was served at the court hearing held before Federal Magistrate Nicholls, the document entitled “Respondent’s Objections to the Applicant’s Evidence” by the respondent’s solicitors, which is annexed to this affidavit and marked as ‘A’. The document states that the evidence contained in the three (3) affidavits that I filed on 26 March 2012, 10 April 2012 and 7 June 2012 offend various sections of the Evidence Act 1955 (Cth). I make this affidavit in respond to Annexure ‘A’ to ensure that the evidence submitted in these proceedings comply with the evidence Act.
…”
As can be seen from the paragraphs referred to above, the applicant’s affidavit of 6 July/“submissions” fails to address the respondent’s objections to his various affidavits in any substantive way. As a result, the Court is left with the respondent’s largely unchallenged objections to the applicant’s affidavits. I agree with those objections. In that regard. I particularly note what follows.
The affidavits fail to set out in any real detail, or with any helpful specificity, the evidence on which the applicant grounds his complaints. Rather, those affidavits merely reiterate the allegations made in the FAA and FAPOC and, introduce several new broad assertions. In particular, I note and agree with what is set out at [35] of the respondent’s written submissions:
“[35] Aside from the issues of admissibility, each of the affidavits fails to establish any basis for the Applicant’s complaints for the following reasons:
a) The 27 March 2012 affidavit re-states the grounds of complaint in the mater of a ‘cut-and-paste’ document based upon the Applicant’s Amended Application of 28 March 2012, save of making the mere assertion that the Applicant was ‘targeted’ by the ADC’s exam markers (at [G]).
b) The 11 April 2012 affidavit re-states the matters contained in his affidavit of 27 March 2012, save for introducing new assertions concerning, for example:
i) The Applicant was allegedly ‘informed discriminatory that (people who fail twice are not successful in the sequencing attempts and that is something you have to take into your account)’ (at [#8]).
ii) The Applicant’s perception that his fail mark in a radiology exam in 2011 must indicate racism, because he had passed the same exam in an earlier sitting (at [#13]).
c) The 7 June 2012 affidavit also re-states the matters referred to in the 27 March 2012, save for introducing a new assertions concerning, for example:
i) Alleged deficiencies in the Affidavit of Keith Edward Watkins of 25 May 2012 and similarities between the 2 bundles produced by the Respondent on 25 May 2012 (at [1-1]-[1-2]).
ii) The ADC altering its exam schedule (at [#3]).”
On the rare occasion that those affidavits annex documents, or provide details, of alleged acts committed by the ADC they still fail to provide evidence of, or explain, how those matters can be seen to be the result of, because of, or arising from, the applicant’s race and/or ethnicity. That is, those documents fail to address the serious, and fatal, lacuna in the applicant’s allegations to this Court. That is, the causal link between the alleged acts and that those acts were the “result of”, “because of” or “by reason of” his race and/or ethnicity. The third basis therefore is made out.
In short therefore, the material in the affidavits should not, and can not, be admitted into evidence. The respondent’s objections as to form are really another way of saying that the affidavits do not contain “evidence” as that term is understood in law. The affidavits represent a good example of where form and substance merge to provide inadmissible evidence.
However, even if I was minded to allow the applicant’s assertions in his affidavits into evidence, in light of the considerable objections raised by the respondent, and more importantly, the efficacy of those objections in particular as they relate to the emphasis by the applicant on opinions and conclusions in his affidavit, rather than factual assertions, little weight could be placed upon the claims made within those documents. Submissions that lack a probative basis in fact are of little, if any, use in the resolution of the matter. Particularly also given, as submitted by the respondent, the serious nature of the allegations made by the applicant (Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 – 363).
Conclusion
The Court is satisfied that the respondent has met the requirement set out in r.13.10(a) of the FMC Rules. For the reasons above, the applicant’s application does not reveal any reasonable prospect of success. That is despite opportunity afforded to the applicant to address this issue. In the circumstances, the respondent should not be pressed to further respond to the application. I will make orders accordingly.
I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 20 September 2012
Key Legal Topics
Areas of Law
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Civil Litigation & Procedure
Legal Concepts
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Summary Judgment
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Jurisdiction
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Discrimination
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Racial Discrimination Act 1975 (Cth)
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