ILIJEVSKI v Commonwealth of Australia (As Represented BY the Commissioner of the Australian Taxation Office)
[2016] FCCA 2787
•2 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ILIJEVSKI v COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE COMMISSIONER OF THE AUSTRALIAN TAXATION OFFICE) | [2016] FCCA 2787 |
| Catchwords: HUMAN RIGHTS – Application by Respondent for Orders summarily dismissing the proceedings in relation to the Applicant’s claims that the Respondent contravened s.9 and Pt.IIA–Prohibition of offensive behaviour based on racial hatred of the Racial Discrimination Act 1975 (“the RDA”), pursuant to r.13.10 of the Federal Circuit Court Rules 2001 (“the Rules”); or alternatively pursuant to r.16.21 of the Federal Court Rules 2011 (“the FCA Rules”) the Applicant’s Amended Statement of Claim be struck out and pursuant to r.8.02 of the Rules the proceedings be transferred to the Federal Court of Australia – held that the Applicant has no reasonable prospect of successfully prosecuting his claims that the Respondent contravened Pt.IIA of the RDA – pursuant to r.13.10 of the Rules the proceeding so far as these claims summarily dismissed – the Applicant’s Amended Statement of Claim struck out pursuant to r.16.21 of the FCA Rules – Applicant granted leave to file and serve a Further Amended Statement of Claim – Respondent’s application to transfer proceedings to Federal Court of Australia dismissed. |
| Legislation: Australian Human Rights Commission Act 1986 (Cth), s.46PO |
| Cases cited: AAV15 v Minister for Immigration & Border Protection (2015) 230 FCR 454 C v Commonwealth of Australia [2015] FCAFC 113 Clarke v Nationwide News Pty Ltd (2012) 201 FCR 389; [2012] FCA 307 Eliezer v University of Sydney [2015] FCA 1045 Hagan v Trustees of the Toowoomba Sports Ground Trust[2000] FCA 1615 |
| Applicant: | IVA ILIJEVSKI |
| Respondent: | COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE COMMISSIONER OF THE AUSTRALIAN TAXATION OFFICE) |
| File Number: | MLG 2014 of 2015 |
| Judgment of: | Judge Jones |
| Hearing date: | 11 October 2016 |
| Date of Last Submission: | 11 October 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 2 November 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Addison |
| Solicitors for the Applicant: | Maddison & Associates |
| Counsel for the Respondent: | Ms Nelson |
| Solicitors for the Respondent: | Ashurst |
ORDERS
The proceeding, so far as it concerns the Applicant’s claimed contravention by the Respondent of Pt.IIA–Prohibition of offensive behaviour based on racial hatred of the Racial Discrimination Act 1975, is dismissed.
The Applicant’s Amended Statement of Claim filed on 23 August 2016 be struck out.
The Respondent’s application that the proceedings be transferred to the Federal Court of Australia is dismissed.
The Applicant is granted leave to file a Further Amended Statement of Claim within 21 days of these Orders.
The matter is listed for a telephone Directions hearing on 7 November 2016 at 9.30am.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2014 of 2015
| IVA ILIJEVSKI |
Applicant
And
| COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE COMMISSIONER OF THE AUSTRALIAN TAXATION OFFICE) |
Respondent
REASONS FOR JUDGMENT
Introduction
This decision is in relation to an Application in a Case filed on 3 October 2016 by the Respondent seeking Orders that, pursuant to r.13.10 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), the proceeding be summarily dismissed on the grounds that:
a)the Applicant has no reasonable prospect of successfully prosecuting the proceeding; and/or
b) it is an abuse of the process of the Court.
Alternatively, pursuant to r.1.05 of the Rules and r.16.21 of the Federal Court Rules 2011 (Cth) (“the FCA Rules”), the Respondent seeks an Order that the Amended Statement of Claim filed on 23 August 2016[1] (“the ASOC”), be struck out on the basis that it:
a)is evasive or ambiguous;
b)fails to disclose a reasonable cause of action; and/or
c)is otherwise an abuse of the process of the Court.
[1] This was filed by the Applicant as her Statement of Claim. However, as it is the second Statement of Claim, it is properly referred to as an Amended Statement of Claim and will be referred to as the Amended Statement of Claim (“ASOC”) in this decision.
In the event that Order 1 is not granted, and regardless of whether Order 2 is granted, the Respondent seeks an Order that pursuant to r.8.02 of the Rules, the proceeding be transferred to the Federal Court of Australia. Following directions made by the Court, the Respondent filed and served detailed written submissions in relation to its application.
The Applicant submits that the Respondent’s Application in a Case should be dismissed and an Order made for the filing and serving of a Further Amended Statement of Claim. The Applicant opposes transferring the proceedings to the Federal Court of Australia.
The Applicant’s substantive case, evident from her Application filed on 9 September 2015 and her ASOC is, in summary, that the Respondent (who it is alleged is vicariously liable for the “actions” of an employee, namely Mr Jones) contravened ss.9, 15, 17, 18A, 18C and 18E of the Racial Discrimination Act 1975 (“the RDA”). The discrimination the Applicant complains about is racial discrimination and racial hatred pursuant to the RDA.
In her ASOC, the Applicant pleads only contraventions of s.9 and Pt.IIA of the RDA. The conduct or actions of Mr Jones are alleged to have occurred during the period between 2006 to 2012. The relief the Applicant seeks from the Respondent is specified in her application as compensation for economic loss and compensation for pain and suffering. In her ASOC, the economic loss is identified as $1,038,411.00. The Applicant has not yet identified the amount of her claim of compensation for pain and suffering. It is relevant to note that at all material times the Applicant has been legally represented.
On 11 November 2014, the Applicant lodged a complaint (“the Complaint”) with the Australian Human Rights Commission (“the AHRC”). The Respondent asserts in its written submissions that the Complaint included allegations of discrimination on the basis of race, racial hatred and breach of human rights by a Commonwealth body. This was not disputed by the Applicant at the hearing. The Complaint is not in evidence before the Court.
On 12 November 2014, the Applicant was informed by the AHRC that her complaint on the ground of breach of human rights was not accepted as she had not identified any covenants or declarations scheduled to the Australian Human Rights Commission Act 1986 (Cth) (“AHRC Act”) that had been breached. The AHRC terminated the Complaint on 7 July 2015.
There has been some history procedurally in this matter which is set out in the Affidavit of Dominic James Fleeton filed on 29 September 2016 (“the Fleeton Affidavit”). Following the filing of the originating application, this history includes:
a)by consent Orders dated 8 October 2015, the Applicant was ordered to serve a response to the Respondent’s request for further and better particulars by no later than 6 November 2015;
b)by consent Orders dated 8 June 2016, the Applicant was required to file and serve her Statement of Claim on or before 14 June 2016. The Applicant filed a Statement of Claim dated 20 July 2016 (“SOC”). This followed numerous emails from the Respondent to the Applicant’s legal representatives requesting the service of the Statement of Claim. The Applicant’s legal representative’s explanation for the delay was due to his ill-health in circumstances where he operates as a sole practitioner;
c)by correspondence dated 9 August 2016, the Respondent’s representatives identified what it said were deficiencies with the SOC and asked that they be addressed (the Fleeton Affidavit, annexure DF-11). The deficiencies identified included that the SOC:
i)failed to identify whether the Applicant claimed that she had been directly or indirectly discriminated against;
ii)did not identify the relevant sections of the RDA alleged to have been breached;
iii)failed to plead the race, colour, descent or national or ethnic origin of the Applicant;
iv)failed to identify the human right or fundamental freedom that the Applicant was unable to exercise;
v)failed to draw any causal connection between the Applicant’s race, colour, descent or national or ethnic origin and the conduct alleged against the employees of the Respondent;
vi)failed to explain the basis for the claim for economic loss; and
vii)failed to properly particularise alleged conduct.
In correspondence dated 9 August 2016, the Respondent put the Applicant on notice that, if those deficiencies were not remedied, it would seek to have the SOC struck out.
On 23 August 2016, the Applicant filed and served the ASOC. There were numerous requests from the Respondent to the Applicant to provide a marked up copy of the ASOC. This request was not responded to. The Respondent also informed the Applicant of its view that the ASOC did not remedy the deficiencies outlined in the correspondence dated 9 August 2016.
Summary Dismissal - Applicable Principles
Rule 13.10 of the Rules relevantly provides that:
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
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court
Reasonable Prospects of success
The principles governing an application of for summary dismissal are well-established and have been recently helpfully summarised by Perry J in Eliezer v University of Sydney [2015] FCA 1045 (“Eliezer”) as follows at [35]-[38]:
35. First, the respondents as the moving parties bear the onus of persuading the Court that the application has no reasonable prospects of succeeding: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256 (Cassimatis) at 271 [45] (Reeves J).
36. Secondly, as the respondents submit, the intention behind the enactment of s 31A is “to lower the bar for obtaining summary judgment (including summary dismissal) below the level that had been fixed by such authorities as Dey v Victorian Railway Commissioners (1949) 78 CLR 62 at 91-92, and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129–130…”: White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511; (2007) 160 FCR 298 (White Industries) at 310 [54] (Lindgren J); see also Cassimatis at 271 [46] (Reeves J). In the cases to which Lindgren J referred in White Industries, the requirement had been expressed in such terms as “manifestly groundless” or “hopeless”. As Hayne, Crennan, Kiefel and Bell JJ held in Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 (Spencer) at 139 [52]-[53]:
…effect must be given to the negative admonition in sub-s (3) that a defence, a proceeding, or a part of a proceeding may be found to have no reasonable prospect of successful prosecution even if it cannot be said that it is “hopeless” or “bound to fail”. …[I]t is important to begin by recognising that the combined effect of sub-ss (2) and (3) is that the inquiry required in this case is whether there is a “reasonable” prospect of prosecuting the proceeding, not an inquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail.
In this respect, s 31A departs radically from the basis upon which earlier forms of provision permitting the entry of summary judgment have been understood and administered.
37. Thirdly, the assessment required by s 31A of whether a proceeding has no reasonable prospects of success necessitates the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision vests a discretion in the Court: Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; (2009) 178 FCR 401 (Kowalski) at 408-409 [28] (the Court). That discretion includes whether to deal with the motion at once or at some later stage in the proceedings when the legal and factual issues have been more clearly defined: Butorac v WIN Corporation Pty Ltd [2009] FCA 1503 at [19] (Buchanan J); Cassimatis at 272 [50] (Reeves J).
38. In the fourth place, despite the threshold for summary dismissal having been lowered, the discretion must still be exercised with caution (Spencer at 131 [24] (French CJ and Gummow J) and 141 [60] (Hayne, Crennan, Kiefel and Bell JJ)). Consistently with this, the discretion is concerned “with the bringing and defending of proceedings, not just with pleadings; with substance, not just with form”: White Industries at [50] (Lindgren J) (approved in Kowalski at 409 [30] (the Court); see also Spencer at [23] (French CJ and Gummow J)).
It is accepted by the Respondent that the power to summarily dismiss a matter must be exercised with “exceptional caution” and be “sparingly invoked”.
In AAV15 v Minister for Immigration & Border Protection (2015) 230 FCR 454, Flick J explained at 458 [12]:
Notwithstanding the fact that the language now employed in both s 17A of the Federal Circuit Court Act and s 31A of the Federal Court Act is to “soften the test for a successful application for summary judgment” (Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117 at [25], (2009) 178 FCR 401 at 408 per Spender, Graham and Gilmour JJ), when exercising the discretion the Court “must be cautious not to do an injustice … ” (Commonwealth Bank of Australia v ACN 000 247 601 Pty Limited (in liq) [2006] FCA 1416 at [30] per Jacobson J). Any “exercise of powers to summarily terminate proceedings must always be attended with caution”: Spencer v Commonwealth of Australia [2010] HCA 28 at [24], (2010) 241 CLR 118 at 131 per French CJ and Gummow J.
In C v Commonwealth of Australia [2015] FCAFC 113, the Full Court said at [56]-[59]:
56. Both the Federal Circuit Court and this Court have power, under s 17A of the FCCA Act and s 31A of the FCA Act respectively, to give judgment for a respondent if the Court is satisfied that the applicant “has no reasonable prospect of successfully prosecuting the proceeding …”. Complementary powers are also to be found in the Rules of both courts: see r 13.10(a) of the FCC Rules and r 26.01(1)(a) of the FCR.
57. In Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited (2008) 167 FCR 372, Gordon J noted (at 406) that s 31A was introduced in order to extend “the power of the court to deal with unmeritorious matters by broadening the grounds on which federal courts can summarily dispose of unsustainable cases”. Even so, the power is to be exercised cautiously: Spencer v The Commonwealth (2010) 241 CLR 118 at 141.
58. As both sections expressly provide, an applicant may have “no reasonable prospect of successfully prosecuting [a] proceeding” even if the application cannot be characterised as either hopeless or bound to fail. These provisions, as Lindgren J held in White Industries Australia Limited v Federal Commissioner of Taxation (2007) 160 FCR 298 at 310, were designed “to lower the bar for obtaining summary judgment” from the level that had been fixed by the High Court in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91‑92 and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128-30. In determining whether the claim has “no reasonable prospect” of success weight must be given to the expression as a whole and expressions such as “untenable” or “groundless”, whether or not used in conjunction with “intensifying epithets” such as “clearly” or “manifestly” should not be adopted as substitutes for the statutory language: Spencer at 141.
59. The Court is required to apply its rules in a way that best promotes the overarching purpose of justly resolving disputes according to law as quickly, inexpensively and efficiently as possible: see s 37M of the FCA Act…
The parties should not be forced to incur the costs of preparing for and conducting what is likely to be a lengthy trial. In Takemoto v Moody’s Investors Service Pty Limited[2014] FCA 1081, Flick J identified what his Honour described as a few basic principles, as to the meaning to be ascribed to s.31A of the Federal Court of Australia Act 1976, including. at [13]-[15]:
13. Third, the requirement that there be “no reasonable prospects of success” can be satisfied where there is a defect in the pleadings which cannot be cured or, alternatively, by reference to evidence put on in support of an application under s 31A which reasonably excludes the possibility that facts essential to the success of the claim or defence will be able to be established: Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [20] per French J (as his Honour then was).
14. Not surprisingly, considerable attention has been given to those circumstances in which this Court may be called upon to enter summary judgment – not upon the basis of resolving a legal issue – but upon the basis of resolving a factual question dividing the parties. One party may plead a material fact which is either not admitted or denied. Upon an application being made pursuant to s 31A, the Court can – in an appropriate case – resolve that factual issue. But the circumstances in which it should do so, and thereafter proceed to enter summary judgment or summarily dismiss a proceeding, should be approached with considerable caution. Although the parties may seek to adduce evidence in respect to the resolution of that factual question, the Court is called upon, in an application pursuant to s 31A, to form a view in advance of a final hearing as to how that factual question is to be resolved and whether or not it is a more proper exercise of the discretion conferred by s 31A to allow the matter to proceed to hearing.
15. When addressing the principles to be applied where summary judgment is sought and where there are disputed questions of fact, Finkelstein J in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60, (2008) 167 FCR 372 at 382 said:
[22] … If the test under s 31A raises the hurdle for the opposing party, it may be necessary for that party at a minimum to provide an outline of the evidence that will be relied upon. The outline must be sufficient to show that there is a genuine dispute about facts that are material to the outcome of the case. That will enable the judge to make some assessment of the merits. It would not, of course, be necessary, in most cases, to require the party to do more than provide an outline, because that would turn the summary judgment application into a trial.
[23] In other words, the section requires the judge to conduct what might loosely be described as a preliminary trial and look more closely than he would under an O 14 application to a party’s assertion that there is a real question of law or fact to be decided. Such an assertion is to be examined with a critical eye. The judge is to decide whether the opposing party has evidence of sufficient quality and weight to be able to succeed at trial. There will be cases where the asserted facts appear to be so improbable that there is no point in allowing them to go to trial. There will be others where the opposing party has not been able to show that the asserted facts are likely to be established at a trial.
Rares J expressed the proposition as follows:
[74] Accordingly, if Jefferson Ford is able to establish that there was a real issue of fact or a real issue of law capable of being decided in its favour then, subject to the Court’s discretion to determine the question of law, the matter ought to be allowed to go to trial in the ordinary way.
Gordon J referred to the principle to be applied as follows:
[130] A fifth principle is that where there is a real issue of fact relevant to a pleaded cause of action, it is unlikely that that part of the proceeding has no prospect of success… So, for example, if the pleadings, affidavits, and other materials considered in connection with the summary judgment motion, reveal a factual dispute and that factual dispute must be resolved to determine whether or not the claim succeeds, it cannot be said that the claim has “no reasonable prospect of success”… On the other hand, if the factual contest is unnecessary to the resolution of the cause of action pleaded, then in the absence of other relevant material, there is nothing to prevent the court entering judgment on that claim.
“Ultimately, the court must consider whether there are any real, as opposed to fanciful, issues of fact or law that require proper determination at a trial”: Adnunat Pty Ltd v ITW Construction Systems Australia Pty Ltd [2009] FCA 499 at [37] per Sundberg J. See also: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641 at [25] to [45], (2013) 220 FCR 256 at 266 to 271 per Reeves J. Summary judgment under s 31A may thus be appropriate “where the evidence is all one way so that only one conclusion can be said to be reasonable”: Australian Competition and Consumer Commission v Link Solutions Pty Ltd (No 2) [2010] FCA 919 at [108], (2010) 272 ALR 280 at 313 per Bennett J. Where there is “a triable issue of fact then summary judgment will not be entered”: Keynes v Rural Directions Pty Ltd (No 2) [2009] FCA 567 at [47], (2009) 72 ACSR 264 at 273 per Besanko J.
The Respondent relies decision of the Federal Court in Paramasivam v Grant [2001] FCA 882 at [14] applying Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598, that:
Whilst circumspection is appropriate, if the evidence before the Court establishes that if the matter were to go to trial in the ordinary way the application must fail, then a case for summary dismissal of the proceedings is made out…
Reliance is also placed by the Respondent on the observations of Lehane J in Travers v State of New South Wales [2000] FCA 1565 at [18]-[19]:
18. …
“... it is in the public interest, as well as in the interests of both parties, that the hearing of a complaint which is clearly shown to be lacking in substance should be summarily terminated. Certainly, it is no kindness to a complainant to shrink from the exercise of the power ... in circumstances where that exercise is clearly warranted.”
19. (Assal v Department of Health, Housing & Community Services(1992) EOC 92-409 at 78,900 per Sir Ronald Wilson, President of HREOC). That is especially so, perhaps, in this Court where an unsuccessful litigant, if proceedings are protracted, may face what can be the considerable burden of a costs order. …
Abuse of Process
The principles governing an application for summary dismissal on the basis that an application is an abuse of process were also helpfully summarised by Perry J in Eliezer at [57]-[66]. In Eliezer, Perry J accepted that discrimination proceedings for which a cause of action arises under s.46PO of the AHRC Act, are not subject to any limitation period other than the limitation period under s.46PO(2) of the AHRC Act. However his Honour went on to find at [61]-[66]:
61. However, this does not mean that the proceedings cannot constitute an abuse of process as the respondents correctly submit, and, in particular, that delay is not relevant to the question of abuse (Herron v McGregor (1986) 6 NSWLR 246 (Herron) at 253 (McHugh JA (with whose reasons the other members of the Court of Appeal agreed))). As the joint judgment held in Batistatos (HCA) at 280, after observing that it is unsatisfactory to speak of a plaintiff as having a legal right to commence proceedings within the applicable statutory limitation period:
63. … The plaintiff certainly has a “right” to institute a proceeding. But the defendant also has “rights”. One is to plead in defence an available limitation defence. Another distinct “right” is to seek the exercise of the power of the court to stay its processes in certain circumstances. On its part, the court has an obligation owed to both sides to quell their controversy according to law.
64. It is a long, and impermissible, step to deny the existence of what may be the countervailing right of a defendant by imputation to the legislature of an intent, not manifested in the statutory text, to require the court to give absolute priority to the exercise by the plaintiff within the limitation period of the right to initiate proceedings. The truth is that limitation periods operate by reference to temporal limits which are indifferent to the presence or absence of lapses of time which may merit the term “delay”.
62. Thus, their Honours held, the “right” of a plaintiff to institute proceedings is subject to the operation of the applicable procedural and substantive law administered by the Court including the principles respecting abuse of process (Batistatos (HCA) at 280 [65] (Gleeson CJ, Gummow, Hayne and Crennan JJ)).
63. In so holding, their Honours approved the reasons of Bryson JA who had held in the New South Wales Court of Appeal that:
Delay is not what the [Limitation Act 1969 (NSW)] authorises, literally or in substance. It operates in quite another way, by preventing proceedings being brought after prescribed times, irrespective of whether or not the proceedings can be fairly adjudicated…. The [Limitation Act 1969 (NSW)] cannot in my view close the court’s eyes to the practical inability of reaching a decision based on any real understanding of the facts, and the practical impossibility of giving the defendants any real opportunity to participate in the hearing, to contest them or, if it should be right to do so, to admit liability on an informed basis.
(Newcastle City Council v Batistatos [2005] NSWCA 20; (2005) 43 MVR 381 at 405-406 [80] (Bryson JA (with whom Mason P and Giles JA agreed) (approved in Batistatos (HCA) at 277-278 [54])).
64. In this regard, the prejudice caused by delay may be insidious and unable to be positively proved, as the respondents submit. As McHugh J said in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 (Brisbane South) at 551:
For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that “[w]here there is delay the whole quality of justice deteriorates”. Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo [(1972) 407 US 514 at 532] “what has been forgotten can rarely be shown”. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now “knowing” that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.
(See also Herron at 253 (McHugh JA)).
65. As McHugh J then continued at 552-553, with respect to the rationales underlying limitations periods:
First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them.… The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.
66. The same considerations, in my view, inform the concept of abuse of process when delay is relied upon.
In Eliezer, Perry J held (at [67]) that it would be “oppressive in all of the circumstances to allow these proceedings to go to trial”, primarily because of delay. The factors he relied upon in reaching that conclusion were:
a)the extent of the delay, not merely in making the complaint to the Commission, but in the later notification to the Respondents of her claims (the Applicant’s claims related to conduct commencing in November 2007 to March 2008 and the complaint was made to the AHRC in March 2014);
b)the prejudice caused to the Respondents by reason of that delay, being a prejudice which is not met by the documentary evidence relating to the workers compensation claim contrary to the Applicant’s submission;
c)the absence of any adequate explanation for the delay; and
d)the inconsistency in the position now adopted by the Applicant as to the cause of her psychological injury, as opposed to that taken earlier by her in relation to her workers compensation claim to which the University responded in 2008.
No reasonable prospect of successfully prosecuting the claim
Although the Respondent’s primary argument is that the Applicant’s application should be summarily dismissed, the language used in the written submissions often reflects the basis for an application to strike out pleadings. For example, the Respondent commences its submissions in relation to his application for summary dismissal by stating “[h]ow the Respondent says no cause of action is disclosed”. This is of course a ground set out at r.16.21(1)(e) of the FCA Rules (extracts of which are set out below). The Respondent, in summary, identifies the following deficiencies in the ASOC:
a)it does not identify whether the discrimination is alleged to be on the basis of race, colour, descent, or national or ethnic origin;
b)the Applicant does not identify whether the claims under s.9 of the RDA allege direct or indirect discrimination, no element of causation is identified and the ASOC does not identify any proper ‘human right or fundamental freedom in the political, economic, social, cultural or any other field of public life’; and
c)the claims under ss.18A, 18B, 18C and 18E of the RDA are misconceived and the conduct relied on cannot amount to contraventions of those sections.
Whilst there are clearly deficiencies in the pleadings contained in the ASOC, a distinction must be maintained at all times between an assessment of the Applicant’s substantive case and the deficiencies in the pleadings.
The Applicant alleges contraventions of ss.9 and 18C of the RDA. Section 9 of the RDA relevantly provides:
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.
…
Section18C of the RDA is located in Pt.IIA of the RDA. Section18B of the RDA provides:
18B Reason for doing an act
If:
(a) an act is done for 2 or more reasons; and
(b) one of the reasons is the race, colour or national or ethnic origin of a person (whether or not it is the dominant reason or a substantial reason for doing the act);
then, for the purposes of this Part, the act is taken to be done because of the person’s race, colour or national or ethnic origin.
Section 18C of the RDA provides:
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.
It is evident that the “act” rendered unlawful by s.9 of the RDA or which contravenes s.18C of the RDA is one, in the former section, based on race, colour, descent or national or ethnic origin and in the latter section because of the race, colour or national or ethnic origin of a person.
Paragraph [2] of the ASOC states:
The applicant is a 45 year old female who is of Croatian/European background. The applicant identifies as Croatian.
Particulars
The applicant was born in Australia but brought up in a Croatian family and strongly identifies as Croatian. The strong identification is clear from the applicant, her approach to work and her manner whilst at work.
It is immediately apparent the Applicant has failed to identify the attribute or characteristic which she alleges the actions of Mr Jones are based on, or because of which, Mr Jones engaged in the alleged actions. Clearly, “background” is not an attribute or characteristic specified in ss.9, 18B and 18C of the RDA.
This defect is compounded by the pleading in paragraphs [11], [12] and [23] of the ASOC, which are as follows:
11. The conduct was conduct in which Jones deliberately made a distinction in relation to the applicant based on her racial/ cultural background.
12. The conduct was conduct in which Jones deliberately excluded the applicant from the normal functioning of the workplace team and the exclusion included but was not limited to racist comments, threatening/intimidating body language and racist jokes and comments.
23. The conduct was carried out by Jones on the basis of racial hatred and the conduct was in breach of Part IIA of the Act.
Having heard the submissions of the Applicant, in response to the Respondent’s argument regarding the absence of any pleading as to an attribute within the meaning of ss.9, 18B and 18C of the RDA, it was apparent that there has not been a careful consideration by the Applicant and/or her legal representatives as to whether she alleges contraventions based on race, or national or ethnic origin. The distinction between these concepts was canvassed by Lloyd Jones FM, as his Honour then was, in Philip v State of New South Wales [2011] FMCA 308 at [70]-[76], [81]-[87] and [88]-[90]. Without the necessary direct link to an attribute or attributes specified in ss.9, 18B or 18C of the RDA, it is arguable that the Applicant’s prosecution is not only unlikely to be reasonably successful, but doomed to failure. This is because the fundamental requirement to correctly identify the attribute that the Applicant relies on, is missing. However, this is a defect which at this early stage of litigation could be overcome if the Applicant were given the opportunity to file a Further Amended Statement of Claim.
After the hearing of this Application, the Applicant filed a Submission on 12 October 2016, addressing the question of attribute. It was asserted by the Applicant that I had indicated at the hearing that the Applicant would be given the opportunity to make submissions in relation to the pleading concerning the Applicant’s race. I gave no such indication. However, I will refer to the Applicant’s submissions, noting that the Respondent has not had the opportunity to respond. The Applicant’s written submissions are relevantly as follows:
6. The question raised by her honour and the proposition that the race of the applicant is “Slavic” is also in the broad correct but the Slavic peoples are made up of a broad range of ethnically diverse peoples with the Croats forming a distinct ethnic group within the Slavic peoples.[2]
7. To that end it is submitted that the identification of the applicant as Croatian clearly defines the ethnic origans of the applicant as a Croat. And as a consequence of that identification which we submit is the correct identification is a member of the broader Slavic peoples. In the same way that was identified by Bromberg J in the discussion on Aboriginality in Eatock v Bolt [2011] FCA 1103. In that decision the question of Aboriginality was discussed in its historical and practical setting from Paragraph 167.
8. At paragraph 175 of that decision there is discussion of the reasoning of Dean J in Commonwealth v Tasmania (1983) 158 CLR 1 were it was said:-
““people of any race” in s 51(xxvi) of the Constitution has a “wide and non-technical meaning”. In that respect Deane J relied on King-Ansell v Police [1979] 2 NZLR 531 and Mandla v Dowell Lee [1983] 2 AC 548 (to which I later refer at [310]-[312]). Deane J thought that the phrase “people of any race” was apposite to refer to all Australian Aboriginals collectively and also to any identifiable racial sub-group among Australian Aboriginals” (emphasis added)
9. Whilst that case was considering the meaning of race in relation to Aboriginality and within the meaning of the Australian Constitution it is submitted that the principals therein enunciated should apply to the current circumstances. That is that the ethnic origin of the applicant as an ethnic Croat has been properly identified and that Croats are a recognised racial sub group of the Slavic peoples and therefore for the purposes of the proceedings the applicants race and ethnicity have been identified.
This submission does not overcome the critical defect that the Applicant pleads “Croatian/European Background” and not as a person of Croatian Ethnic origin. It would appear that, given the opportunity to file a Further Amended Statement of Claim, the Applicant would likely plead that her attribute or characteristic is her Croatian ethnic origin. I agree with the Respondent that it is not sufficient for the Applicant to ‘identify’ as Croatian. She must allege she has a particular ethnic or national origin, which must be supported by Particulars, which articulate the way in which she alleges that she is either an ethnic Croatian or of Croatian national origin: see Philip (supra).
[2] See the article of Krzysztof Re˛bała Æ Alexei I. Mikulich Æ Iosif S. Tsybovsky Æ
As the Applicant’s case is presently put (as reflected in paragraphs [2], [11]-[12] and [19] of the ASOC), it must be concluded that she would have no reasonable prospect of successfully prosecuting her claim that the Respondent contravened ss.9 and 18C of the RDA. However, I am satisfied that this defect is one which could be remedied by a re-pleading.
Section 9 of the Racial Discrimination Act 1975
Paragraph [20] of the ASOC makes it clear that the allegations contained in paragraphs [7], [9]-[19], [34]-[40] and [42]-[44] constitute matters said to amount to breaches of s.9 of the RDA. Paragraph [18] of the ASOC makes it clear that the Applicant’s case is that Mr Jones directly discriminated against her within the meaning of s.9(1) of the RDA.
Paragraph [19] of the ASOC sets out the conduct engaged in by Mr Jones which is relied on. The date or dates upon which this conduct is alleged to have occurred are generally not identified. It is alleged that the conduct “was regular and systematic”. Paragraph [19](e) of the ASOC discloses the vice earlier identified. This is the imprecise way in which the Applicant identifies her attribute. It commences by referring to “racist comments and conduct”. In the Particulars, reliance is placed on the Applicant’s “Croatian background”. Confusingly, it then states that “[d]ue to her heritage she was subjected to racism by Mr Jones on a constant basis since 2006.”
Section 9 of the RDA requires that the alleged discriminator (in this case. Mr Jones) commit or do an act involving a distinction, exclusion, restriction or preference “based on race, colour, descent or national or ethnic origin”. The Respondent submits that no allegation to that effect is made. Setting aside the critical question; namely, what attribute the Applicant relies on, I am satisfied that, although perhaps somewhat inelegantly pleaded, the Applicant does allege that the conduct engaged in by Mr Jones involved a distinction (at paragraphs [11] and [17] of the ASOC), exclusion (at paragraph [12] of the ASOC) and restriction (at paragraph [13] of the ASOC).
At [17] of the ASOC, it is alleged that the conduct was discriminatory as it was taken only against the Applicant and not against other members of the team, none of whom “shared her cultural background or identified as Croatian.”
The Respondent correctly submits that the requirement for a causal connection is indicated by the terms “based on” in s.9(1) of the RDA. In Republic of Croatia v Snedden (2010) 241 CLR 461 at [22], referring to the provisions of the Extradition Act 1988, French CJ said:
The causal connection between punishment and political opinion in s 7(c) is defined by the words “by reason of.” Those words have appeared in more than one statutory setting including the definition of “refugee” in Art 1A(2) of the Refugees Convention, effectively incorporated by reference into the criteria for the grant of protection visas under the Migration Act 1958 (Cth), and various anti-discrimination and equal opportunity statutes. In those contexts and others they have been equated to terms such as “because of”, “due to”, “based on” and “on the ground of.” Generally speaking “by reason of” has been held to connote a cause and effect relationship.
(Footnotes omitted)
In Jin v State of South Australia [2016] FCA 1065, White J dismissed an appeal against a decision of a Judge of this Court, to summarily dismiss an application alleging contravention of the RDA. It is to be noted that the summary dismissal application was considered after the Applicant had filed all the evidence he intended to rely on. His Honour said at [14]:
The FCC Judge accepted that the applicant’s foreshadowed evidence indicated that he was “greatly aggrieved” by the conduct summarised in para 12(d) and (e) above and that he had felt “personally humiliated insulted and offended” by that conduct, at [67]. However, the FCC Judge considered that the applicant’s proposed evidence would not establish a causal connection between the conduct of which he complained, on the one hand, and his ethnicity, on the other. The requirement for the causal connection is indicated by the terms “based on” in s 9(1) of the RD Act, the term “by reason of” in s 15(1) of the RD Act and the terms “by reason that” in s 27 of the RD Act and s 26 of the AHRC Act: see Republic of Croatia v Snedden [2010] HCA 14 at [22]; (2010) 241 CLR 461.
I agree with the Respondent that the ASOC does not plead this causal connection between the alleged conduct and the Applicant’s attribute (whatever that may be). There are some exceptions: for example, at paragraph [16] of the ASOC. However, this inadequacy in the pleading is one that can potentially be rectified by the preparation of a Further Amended Statement of Claim: see Lambert v State of Victoria [2014] FCA 1064 at [35]-[39] and [52]. I am satisfied that, read as a whole, it is apparent that the Applicant’s case is that there was such a causal connection between the conduct and her attribute (whatever that may be). I note that at this stage of the litigation, the Applicant has not yet filed the evidence she intends to rely on.
The Respondent submits that the ASOC does not identify any proper “human right or fundamental freedom in the political, economic, social, cultural or any other field of public life”. The Respondent contends that it is simply not alleged that any of these fundamental rights were affected, and that there is no suggestion that the Applicant was not paid equally or justly for her work, given the same employment conditions as others, or able to make compensation claims as others in the workplace.
Section 9(2) of the RDA provides that a reference to a human right or fundamental freedom includes any right referred to in Article 5 of the Convention on the Elimination the of All Forms of Racial Discrimination. Sub-para.(e) of Article 5 states that:
(e) Economic, social and cultural rights, in particular:
(i) The rights to work, to free choice of employment, to just and favourable conditions of work, to protection against unemployment, to equal pay for equal work, to just and favourable remuneration;
In my opinion, the Respondent’s arguments are misconceived. In Qantas Airways Ltd v Gama [2008] FCAFC 69 the Full Court said at [76]-[77]:
76. We do not accept that his Honour’s reasons disclose error in his construction or application of s 9(1) of the Racial Discrimination Act. Section 9 prohibits a class of acts defined by their attributes and their purpose or effect. To be unlawful under s 9 it is necessary that an act involve “a distinction, exclusion, restriction or preference based on race, colour, dissent or national or ethnic origin …”. The making of a remark is an act. It may be that the remark involves a distinction because it is made to a particular person and not to others. The remark may convey no express or implicit reference to the person’s race, colour, descent or national or ethnic origin. Nevertheless, a linkage may be drawn between the distinction effected by the remark and the person’s race or other relevant characteristic by reason of the circumstances in which the remark was made or the fact that it was part of a pattern of remarks directed to that person and not to others of a different race or relevant characteristic. Where the remark, critical of one person in a group but not others, expressly or by implication links the criticism or denigration to that person’s race then that linkage establishes both the distinction and its basis upon race. That was the present case.
77. The second attribute of an unlawful act under s 9(1) is that it have the purpose or effect of nullifying or impairing a person’s recognition, enjoyment or exercise on an equal footing of any “human right or fundamental freedom …”. The denigration of an employee on the grounds of that person’s race or other relevant attribute can properly be found to have the effect of impairing that person’s enjoyment of his or her right to work or to just and favourable conditions of work. The question then is whether two or three racist remarks over a period of time can have such a purpose or effect. That is a matter of fact dependent upon the nature and circumstances of the remarks.
It is certainly arguable that the right to just and favourable conditions of work includes a right to work in an environment free of insults or demeaning comments, which are being made because of an attribute specified in s.9(1) of the RDA.
I am also satisfied that the Applicant’s case includes a denial of access to overtime given to other members of the team (at paragraph [19](e) of the ASOC), her inability to work full time and, ultimately, her incapacity to work at all because of the conduct of Mr Jones and the impact on her right to full-time remuneration (at paragraphs [28]-[31] and [46]-[49] of the ASOC).
This application for summary dismissal is brought at an early stage in litigation, in the sense that the Respondent has yet to file a defence and nothing is before the Court by way of evidence or an outline of the evidence the parties intended rely on at trial: Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60. At this stage, the Court is not able to say what the factual disputes between the parties are. This makes the task of forming a view about how the factual material might be resolved at trial almost impossible.
In these circumstances, the best the Court can do is have regard to the material facts that the Applicant relies on as evidenced in the ASOC, and direct its enquiries to whether the claims have a reasonable prospect of success: Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118.
I am conscious that the Court must adopt a cautious approach in respect of a decision to summarily dismiss proceedings. Subject to the Applicant specifying the attributes she relies on in her Particulars and why she relies on that attribute, and subject to pleading causation, I am not satisfied that she has no reasonable prospects of successfully prosecuting her claim in relation to the alleged contravention of s.9 of the RDA.
Sections 18B and 18C - Part IIA of the Racial Discrimination Act 1975
The Respondent submits that paragraphs [21]-[33] of the ASOC appear to be said to give rise to claims of racial hatred under ss.18B and 18C of the RDA, in reliance on the conduct in [9]-[19], [34]-[40] and [42]- [44], misapprehend the purpose and nature of the racial hatred provisions contained in Pt.IIA of the RDA.
As noted by the Respondent in its written submissions, Pt.IIA of the RDA was introduced to the RDA by the Racial Hatred Act 1995 (Cth) (“the Racial Hatred Act”). In introducing the Racial Hatred Act, the Minister, in his second reading speech on the bill, said that “[t]he Bill is intended to close a gap in the legal protection available to the victims of extreme racist behaviour.” The Respondent argues that the relevant provisions must be read with that purpose in mind, and argues that it is not a mechanism to deal with mere slights.
In Hagan v Trustees of the Toowoomba Sports Ground Trust[2000] FCA 1615, Drummond J said at [15]-[16]:
15. It is apparent from the wording of s 18C(1)(a) that whether an act contravenes the section is not governed by the impact the act is subjectively perceived to have by a complainant. 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. The question so far as s 18C(1)(a) is concerned is not: how did the act affect the particular complainant? But rather would the act, in all the circumstances in which it was done, be likely to offend, insult, humiliate or intimidate a person or a group of people of a particular racial, national or ethnic group?
16. It also seems clear enough from the use of the phrase “if ... the act is done because of the race ...” in s 18C(1)(b) that there must be a causal relationship between the reason for the doing of the act and the race of the "target" person or group. Section 18C(1)(b) can, in this respect, be contrasted with s 9(1), which requires only that the act there proscribed be “based on race,” ie, that the act has a sufficient connection, not necessarily causal, with considerations of race, etc. See Macedonian Teachers' Association of Victoria Inc v Human Rights and Equal Opportunity Commission[1998] FCA 1650; (1998) 160 ALR 489.
(my emphasis)
In Hagan, his Honour had recourse to the Explanatory Memorandum accompanying the Bill in considering the scope of the provisions. His Honour said at [34]:
…That s18C(1)(b) should not be given the wide meaning upon which the applicant relies is supported by the Explanatory Memorandum accompanying the Bill which resulted in the inclusion of s18C in the Racial Discrimination Act by Act No 101 of 1995 and by the Minister's second reading speech on the Bill. Regard can be had, in seeking the true meaning of s18C to this material by force of s15AA and s15AB(1)(b)(i) and s15AB(1)(b)(ii) the Acts Interpretation Act. The Memorandum states:
“The Bill addresses concerns highlighted by the findings of the National Inquiry into Racist Violence and the Royal Commission into Aboriginal Deaths in Custody. In doing so, the Bill closes a gap in the legal protection available to the victims of extreme racist behaviour.
...
The Bill is not intended to limit public debate about issues that are in the public interest. It is not intended to prohibit people from having and expressing ideas. ...
The Bill maintains a balance between the right to free speech and the protection of individuals and groups from harassment and fear because of their race, colour or national or ethnic origin. The Bill is intended to prevent people from seriously undermining tolerance within society by inciting racial hatred or threatening violence against individuals or groups because of their race, colour or national or ethnic origin.
...
... the civil prohibition in clause 6 of the Bill [ie, s18C] addresses acts done because of race, colour or national or ethnic origin, otherwise than in private, which are reasonably likely to offend, insult, humiliate or intimidate people. ... The proposed prohibition on offensive behaviour based on racial hatred would be placed within the existing jurisdiction of the Commission to conciliate and/or determine complaints alleging breaches of the RDA. This victim-initiated process is quite different from the criminal offence regime where the initiative for action generally involves police and prosecution authorities."
…
In Vakras v Cripps [2016] FCA 955, Davies J said at [31]-[32]:
31. In Clarke v Nationwide News Pty Ltd (2012) 201 FCR 389; [2012] FCA 307, Barker J at [46]–[49] usefully summarised the applicable principles in respect of the requirements under s 18C(1)(a) as follows:
46. Objective test: In determining whether s 18C of the [Racial Discrimination] Act has been contravened, it is first necessary to determine whether, for the purposes of para (1)(a), the act complained of is “reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people”. In deciding this, the Court does not simply rely on how a particular person or group of people subjectively felt about or reacted to the doing of the act complained of. Rather, the Court assesses whether, objectively, the act complained of was “reasonably likely, in all the circumstances to offend, insult, humiliate or intimidate” another person or a group of people: Hagan v Trustees of Toowoomba Sports Ground Trust [2000] FCA 1615 at [15]; Creek v Cairns Post Pty Ltd (2001) 112 FCR 352 (Cairns Post) at [12]; Jones v Scully (2002) 120 FCR 243 (Jones v Scully) at [98]-[100]; Eatock v Bolt (2011) 197 FCR 261 (Bolt).
47. In Bolt at [257], Bromberg J noted that the expression “in all the circumstances” needs firmly to be kept in mind. With that I agree. I should add that, in my view, the circumstances in a particular case will depend on the facts found from the evidence.
…
49. … The “circumstances” that will readily be relevant are those particular factual circumstances in which a particular act complained of was done. Of course, the reasons why a particular person or group might feel offended, insulted, humiliated or intimidated by a particular act will also be relevant though not determinative of the issue …
32. The phrase “because of” in s 18C(1)(b) requires consideration of the reason or reasons for which the relevant act was done: Hagan v Trustees of the Toowoomba Sports Ground Trust (2001) 105 FCR 56; [2001] FCA 123 at 60 (FCR) (Full Federal Court). The question that must be asked for the purposes of s 18C(1)(b) is whether the act complained of was done “because of” the race, colour or national or ethnic origin of the other person and requires consideration of the motive of the person. If an act is done for one or more reasons, it is enough that one of the reasons is the race, colour or national or ethnic origin of a person or group of people, whether or not it is the dominant reason or a substantial reason for doing the act: s 18B.
Barker J further stated in Clarke v Nationwide News Pty Ltd (2012) 201 FCR 389; [2012] FCA 307 at [65]-[71]:
65. The “serious effects or consequences” consideration: When it comes to applying the objective test from the perspective of the “reasonable victim”, the words “offend, insult, humiliate or intimidate” used in s 18C(1)(a) do not constitute a compendious phrase and should be separately considered and given their ordinary English meanings: see McGlade v Lightfoot at [51]; Jones v Scully at [102]; Jones v Toben at [90]; Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16; (2004) 135 FCR 105 (Bropho v HREOC) at [67].
66. However, in Bropho v HREOC, French J, at [67], noted that the words used in para (a) are “open textured” and that in ordinary parlance are sometimes used to describe a level of response to another person’s conduct which is relatively minor. For example, relevant definitions in the Shorter Oxford English Dictionary are:
offend – to vex, annoy, displease, anger, now esp to excite personal annoyance, resentment, or disgust (in anyone) (Now the chief sense).
insult – to assail with scornful abuse or offensive disrespect; to offer indignity to; to affront, outrage…
humiliate – to make low or humble in position, condition or feeling, to humble… to subject to humiliation; to mortify.
intimidate – to render timid, inspire with fear; to overawe, cow, now esp to force to or deter from some action by threats or violence.
67. His Honour, at [68], considered that the “lower registers” of these definitions, particularly those of “offend” and “insult” seemed a long way removed from the mischief to which Pt IIA of the RD Act was directed. His Honour then undertook an examination of the legislative history of Pt IIA of the RD Act and its foundation on Art 4 of the CERD, to which Australia is a State party, and concluded, to similar effect as Kiefel J in Cairns Post, that s 18C was intended to deal with “serious incidents only”.
68. In Cairns Post, at [16], Kiefel J, having examined the legislative history of Pt IIA of the RD Act, stated:
To ‘offend, insult, humiliate or intimidate’ are profound and serious effects, not to be likened to mere slights. Having said that, the court would of course be conscious of the need to consider the reaction from that person or group’s perspective.
(Emphasis in original.)
69. This approach to the application of s 18C(1)(a), that it is intended, put generally, to deal with serious effects or consequences, has now been generally adopted and applied in a number of cases following Cairns Post and Bropho v HREOC, including Toben v Jones and Bolt.
70. I note, however, that in Jones v Toben, Branson J, having regard to Kiefel J’s observation that s 18C was concerned with profound and serious effects not to be likened to mere slights, stated that she did not understand her Honour to have intended that a “gloss” be placed on the words in s 18C(1)(a). At [92], Branson J said:
Rather, I understand her Honour to have found in the context provided by s 18C of the RDA a legislative intent to render unlawful only acts which fall squarely within the terms of the section and not to reach to ‘mere slights’ in the sense of acts which, for example, are reasonably likely to cause technical, but not real, offence or insult (see also Jones v Scully per Hely J at [102]). It would be wrong, in my view, to place a gloss on the words used in s 18C of the RDA.
(Emphasis in original.)
71. I also note that in Bolt, while Bromberg J, at [268], expressly agreed with the view that the conduct caught by s 18C(1)(a) will be conduct which has “profound and serious effects, not to be likened to mere slights”, his Honour, at [267], stated that the “public consequence…need not be significant…[i]t may be slight”. His Honour suggested conduct will evince the relevant seriousness to satisfy para (a) where it involves “conduct which invades or harms the dignity of an individual or group”. His Honour, in my respectful view, was not in saying this seeking to restate the test by which para (a) of s 18C(1) will be satisfied, but emphasising the point made at [268], namely, conduct which does not give “real” offence, as opposed to “mere slights”, will not be found to satisfy para (a).
The Respondent submits that it cannot be said that any of the alleged conduct in paragraphs [9]-[18], [19](a)-(d), [34]-[40] and [42]-[44] of the ASOC is directed at, or has any of connection with, the Applicant’s Croatian national origin (if it is assumed that it is alleged she is of Croatian national origin despite what is in paragraph [2] of the ASOC at present). The Respondent argues the alleged “racist” comments and conduct in paragraph [19](e) of the ASOC generally have no connection to her Croatian national origin. For example, using body language “with crossed arms and an angry manner”, “shutting down” the Applicant’s alleged suggestions for improvement in the workplace, asking the Applicant “who included you in this conversation?” and setting conditions for overtime and attending meetings. These acts, the Respondent submits, simply have no connection with race or national origin.
The Respondent correctly submits that the test of whether a Respondent’s act was “reasonably likely in all the circumstances to offend, insult, humiliate or intimidate another person or a group of people” is an objective test that must be tested with reference to the effect which it is reasonably likely to have, on another person, or group of people, of the same ethnic group.
The Respondent argues that the act in question must have “profound and serious effects, not to be likened to mere slights”. It is submitted by the Respondent that even the most serious of the alleged racial comments in paragraph [19](e) of the ASOC are, at best, slights, and could not be objectively seen to have a connection with a particular ethnic or national origin, or to cause offence on that basis to a reasonable person of Croatian origin.
I agree that, as presently contended (in the ASOC), the Applicant’ case is deficient in that:
a)she has not specified the attribute she relies on within the meaning of s.18B of the RDA;
b)the causal connection between the act(s) and her attribute (whatever that is) is generally not clear; and
c)there is no evidence of the objective test: namely, whether, objectively, the act complained of was “reasonably likely, in all the circumstances to offend, insult, humiliate or intimidate” another person or a group of people with her attribute.
I do not agree with the Respondent’s assertion that the acts complained of by the Applicant in the ASOC do not rise above mere slights. This may be the ultimate conclusion of the Court, however it is not something that I could reasonably find in the absence of the evidence upon which the Applicant relies.
In my opinion however, there is a defect which is not curable by providing the Applicant with an opportunity to re-plead. This is the requirement that the act be done otherwise than in private: s.18C(1) of the RDA. Sub-ss.18C(2) and (3) of the RDA provide:
(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.
Sub-section 18C(2)(c) of the RDA is relevant in the circumstances of this case. On the material before the Court, it could not be said that the acts the Applicant alleges the Mr Jones engaged in were acts done in a public place. It is manifestly apparent form the ASOC that the acts alleged occurred in the workplace of the Australian Taxation Office. There is not a scintilla of a suggestion that the public has access (as of right or invitation) to the Australia Taxation Office workplace.
Given the defects identified, I am satisfied that the Applicant has no reasonable prospect of successfully prosecuting her claim alleging contravention of Pt.IIA of the RDA.
Accordingly, an Order will be made dismissing the Applicant’s claim, so far as it alleges contravention of Pt.IIA of the RDA.
Abuse of Process
The Respondent also submits that the proceeding should be dismissed as an abuse of process. The Respondent bases its arguments on the delay between the time the acts are alleged to have occurred and the time the Applicant put the Respondent on notice of her complaints, the lack of particularity in relation to the acts alleged, the absence of any adequate explanation for the delay and the prejudice to the Respondent. The Respondent argues the circumstances in this case are analogous to those in Eliezer.
As noted earlier, the acts the applicant alleges Mr Jones engaged in commenced in 2006 and ceased in 2012, when the Applicant says she became incapacitated for work because of Mr Jones’ conduct. As the Respondent points out, these events occurred during a period of four to 10 years ago. The proceedings are currently listed for trial on 13 February 2017. Compounding the difficulties which flow from allegations of conduct occurring over such a long period of time and many years ago; namely, the obvious “deleterious impact of time on the quality and availability of evidence” (Eliezer at [70]) is the fact that a substantial part of the alleged acts of Mr Jones are conversations and comments made by Mr Jones, which are generally not ascribed to particular dates. In submissions, the Applicant stated that the conduct occurred every day and that she is not in a position to recall the precise dates.
I do not agree with the Respondent’s submission that it is evident (from the ASOC) that the first time the Applicant complained was when she made a Comcare claim in April 2013. The Applicant pleads that she complained about Mr Jones’ behaviour on 6 September 2007 at a meeting with Mr Jones and the Respondent’s Acting Technical Support Officer (paragraph [19](e) of the ASOC). She also pleads that she complained to the Respondent about Mr Jones’ conduct by way of correspondence from her solicitor in early 2010 (paragraph [34] of the ASOC). If these matters pleaded are accepted by the Court, this is evidence of the Applicant making complaints about Mr Jones’ conduct to the Respondent in September 2007 and early 2010. I do not accept the Applicant’s submission that paragraph [44] of the ASOC pleads that the Applicant made a further complaint in December 2012. At most, the relevant paragraphs preceding paragraph [44] of the ASOC plead that the Applicant attended a meeting with a representative of the Respondent’s HR department, regarding Mr Jones’ insistence that she complain about a fellow employee and that this meeting “triggered significant trauma and distress to the applicant arising from the conduct of Jones over many years.”
The Applicant ceased employment at the end of December 2012. There appears to be no dispute that the Applicant next complained when she made her Comcare claim in April 2013. The Complaint to the AHRC was made on 11 November 2014. The Applicant submitted that the reason for her delay in filing the Complaint to the AHRC was the impact of her psychiatric injury she alleges is caused by Mr Jones’ conduct and for which she has qualified for invalidity retirement.
Although the time period over which the Applicant alleges Mr Jones’ acts contravened s.9 of the RDA is lengthy, and will involve the giving and testing of evidence from up to 11 years ago, on the Applicant’s pleadings she made her first complaint on 6 September 2007, and later, in a formal way, by way of correspondence from her solicitor in early 2010, and by the making of a Comcare claim (ultimately successfully) in April 2013. She then made her complaint to the AHCR in November 2014. If the Court accepts the Applicant’s alleged factual material, the Respondent can be said to have been on notice of her complaints soon after Mr Jones engaged in the conduct and later in early 2010. The circumstances are not entirely analogous to those the Respondent relies on in Eliezer, where there was a period of some six years between the conduct and a complaint to the AHRC.
The onus will be on the Applicant to prove her claim that the acts she alleges were engaged in by Mr Jones were based on an attribute specified in s.9 of the RDA. I am conscious of the difficulties the Respondent will face, but I am not satisfied that it can be said that this prejudice arises solely from the Applicant’s delay in bringing to its notice her complaints about Mr Jones.
I am not satisfied that the claim, so far as it concerns a contravention of s.9 of the RDA, is an abuse of process. Accordingly, I would not dismiss the claim for this reason.
Strike Out of Pleadings
As the Rules are silent in respect of striking out pleadings, the FCA Rules can apply so far as is necessary.
Rule 16.02 of the FCA Rules relevantly provides:
Content of pleadings--general
(1) A pleading must:
(a) be divided into consecutively numbered paragraphs, each, as far as practicable, dealing with a separate matter; and
(b) be as brief as the nature of the case permits; and
(c) identify the issues that the party wants the Court to resolve; and
(d) state the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against that party at trial, but not the evidence by which the material facts are to be proved; and
(e) state the provisions of any statute relied on; and
(f) state the specific relief sought or claimed.
Rule 16.21 of the FCA Rules relevantly provides that:
Application to strike out pleadings
(1) A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:
(a) contains scandalous material; or
(b) contains frivolous or vexatious material; or
(c) is evasive or ambiguous; or
(d) is likely to cause prejudice, embarrassment or delay in the proceeding; or
(e) fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or
(f) is otherwise an abuse of the process of the Court.
I am satisfied that I should strike out the Amended Statement of Claim on the basis that the pleadings, so far as they concern alleged contraventions of s.9 of the RDA Act:
a)fail to disclose a reasonable cause of action by reason of the Applicant’s failure to plead properly, or at all, the attributes specified in s.9(1) of the RDA;
b)are embarrassing as the pleadings use inconsistent language to refer to the Applicant’s alleged attribute. The pleadings refer at times to the Applicant’s “Croatian background”, her “racial/cultural background” and her “European background”;
c)are embarrassing in so far as the conduct alleged is irrelevant (for example, “Mr Jones engaged in instant hatred of the applicant’s culture”) or the conduct alleged fails to precisely convey what the conduct was; for example, the Applicant pleads that Mr Jones would “attack” her. No particularisation is given of what the word “attack” is intended to convey. The ASOC is also embarrassing as it includes allegations of conduct that are too vague and general; for example, the allegation that “Mr Jones would make derogatory jokes”, is made without reference to particulars specifying what the alleged derogatory jokes were; and
d)are embarrassing as they fail to plead causation; namely, the causal connection between the act alleged and the Applicant’s attribute.
In addition, the pleadings are not correctly formatted. The use of bullet dot points in paragraph [19](e) of the ASOC is unacceptable and bound to confuse.
Orders will be made striking out the ASOC and ordering the Applicant to file and serve a Further Amended Statement of Claim.
Transfer to the Federal Court of Australia
The Respondent seeks an Order, in the event that the proceedings are not summarily dismissed, that the matter be transferred to the Federal Court of Australia pursuant to r.8.02 of the Rules. Rule 8.02(4) of the Rules sets out the relevant considerations in determining an application for transfer:
(4) In addition to the factors required to be considered by the Court under subsections 39(3) and (4) of the Act for transfer of proceedings to the Federal Court or the Family Court, the following factors are relevant:
(a) whether the proceeding is likely to involve questions of general importance, such that it would be desirable for there to be a decision of the Federal Court or the Family Court on one or more of the points in issue;
(b) whether, if the proceeding is transferred, it is likely to be heard and determined at less cost and more convenience to the parties than if the proceeding is not transferred;
(c) whether the proceeding will be heard earlier in the Court;
(d) the availability of particular procedures appropriate for the class of proceeding;
(e) the wishes of the parties.
Sub-section 39(3) of the Federal Circuit Court of Australia Act 1999 (“the FCC Act”) provides that:
(3) In deciding whether to transfer a proceeding to the Federal Court under subsection (1), the Federal Circuit Court of Australia must have regard to:
(a) any Rules of Court made for the purposes of subsection 40(2); and
(b) whether proceedings in respect of an associated matter are pending in the Federal Court; and
(c) whether the resources of the Federal Circuit Court of Australia are sufficient to hear and determine the proceeding; and
(d) the interests of the administration of justice.
The Respondent’s application is made on the following basis:
a)the proceedings will take significantly longer than the four days the matter is currently listed to be heard. It is argued that there appears to be at least 12 relevant witnesses, and the Respondent submits that its cross-examination of the Applicant alone will take at least one day because of the imprecision of the alleged conduct. The Respondent argues that there will be considerable factual disputes as well as complicated medical and actuarial evidence;
b)the claim is for a significant amount of damages which far exceeds this Court’s jurisdiction in respect of consumer law matters; and
c)the application of the racial hatred provisions involve questions of general importance, such that it would be desirable for there to be a decision of the Federal Court.
Clearly the third ground is no longer relevant as the claim, so far as it relates to Pt.IIA of the RDA, will be dismissed.
Section 3 of the FCC Act sets out the objects of that Act. Sub-section 3(2) relevantly provides:
(2) The other objects of this Act are:
(a) to enable the Federal Circuit Court of Australia to operate as informally as possible in the exercise of judicial power; and
(b) to enable the Federal Circuit Court of Australia to use streamlined procedures; and
…
The Rules reflect the objects of the FCC Act. Rule 1.03 of the Rules provides:
Objects
(1) The object of these Rules is to assist the just, efficient and economical resolution of proceedings.
(2) In accordance with the objects of the Act, the Rules aim to help the Court:
· to operate as informally as possible
· to use streamlined processes
· to encourage the use of appropriate dispute resolution procedures.
(3) The Court will apply the Rules in accordance with their objects.
(4) To assist the Court, the parties must:
· avoid undue delay, expense and technicality
· consider options for primary dispute resolution as early as possible.
(5) If appropriate, the Court will help to implement primary dispute resolution.
By consent, Orders were made on 8 June 2016 that this matter be listed for final hearing on 13 February 2017 (with an estimated hearing time of four days). These Orders were only made four months ago. I appreciate that the Applicant had yet to file and serve a Statement of Claim, however, it behoves the parties to provide realistic estimates of the length of trial. In doing so, having regard to the rules of this Court, parties are obliged to engage in discussions to ascertain how long is required for trial. The matter was listed for trial early next year on the basis of the parties’ estimates of the length of trial.
The Respondent now estimates that the trial will take eight to 10 days. I am not satisfied, given the claim now to be prosecuted by the Applicant is only in relation to alleged contraventions of s.9 of the RDA, that such a lengthy trial is warranted. I accept that there may be considerable factual disputes, but this is not unusual. Orders will be made for the exchange of any objections to evidence and the early ruling by the Court regarding these directions. I am not convinced that the fact the Applicant is unable to recall precise dates of the alleged conduct necessitates the lengthy cross-examination of the Applicant anticipated by the Respondent. I note that r.15.01 of the Rules permits the Court to give directions generally as to the conduct of a hearing. This includes limiting the time for cross-examination. The expert evidence from actuarial experts is, in my view, something the Court can deal with by way of Orders that require any differences to be identified and subject to consultation by the experts. The Respondent submits that, in the absence of affidavits from the Applicant’s General Practitioner, treating psychologists and/or psychiatrist, it will subpoena these medical experts. It is not yet apparent to me why it is necessary to the resolution of the matters in dispute, that all of these medical experts be called to give evidence and be subject to cross-examination. Again, this is a question of appropriate case management.
In these circumstances, I am not satisfied that it is in the interests of the administration of justice to transfer these proceedings to the Federal Court of Australia. The Respondent’s application to transfer these proceedings to the Federal Court of Australia is refused.
It is apparent that both parties have failed to comply with some of the trial Orders made by consent. Consequently, a Directions hearing conducted by telephone will be listed on 7 November 2016 at 9.30am.
Conclusion
For the reasons set out in this judgment, I make the Orders set out above.
I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Judge Jones
Date: 2 November 2016
Daniela Siva´kova´ Æ Zuzana Dzˇupinkova´ Æ
Aneta Szczerkowska-Dobosz Æ Zofia Szczerkowska: Received: 15 September 2006 / Accepted: 7 February 2007 The Japan Society of Human Genetics and Springer 2007
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