IBRAHIM v AUSTRALIAN DENTAL COUNCIL - [2012] FMCA 612

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…

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.

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Details

Case: [2012] FMCA 612
Decision Date: 20 September 2012

CaseChat Overview and Summary

Ibrahim, an applicant, brought a case against the Australian Dental Council, the respondent, to the Federal Magistrates Court. The applicant alleged discrimination on various grounds under the Racial Discrimination Act 1975 (Cth). The respondent sought summary dismissal of the matter, claiming that the applicant's case had no reasonable prospect of success. The court was required to decide whether the applicant's case, as currently pleaded, was deficient and warranted summary dismissal or if the applicant should be given another opportunity to properly plead and present his legal arguments.

The court considered the application for summary dismissal and the need to focus on legal issues. It noted that the applicant, being unrepresented, faced difficulties in framing his case within a legal context. The court provided detailed instructions to the applicant on how to amend his points of claim to address specific issues and required him to file and serve an amended document by a specified date. The court also set out detailed issues that the amended points of claim needed to address and listed the respondent’s application for summary dismissal and, if necessary, the applicant’s application for hearing on a specific date.

The court dismissed the application made by the applicant, as amended, and gave specific reasons for its decision. The applicant was given another opportunity to properly plead and present his legal arguments, as the court found that his case, as currently pleaded, was deficient. The court ordered the applicant to file and serve an amended points of claim by the specified date, and listed the respondent’s application for summary dismissal and, if necessary, the applicant’s application for hearing on a future date. The court also provided instructions on the evidence to be filed and served by both parties.

Orders

Orders of the court

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.”

Ratio Decidendi

Legal Principle Established

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