Jandruwanda v University of South Australia (No.2) - [2003] FMCA 233

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JANDRUWANDA v UNIVERSITY OF SOUTH AUSTRALIA (No.2)

[2003] FMCA 233

HUMAN RIGHTS – DISCRIMINATION – PRACTICE AND PROCEDURE – Application for summary dismissal on the ground that there is no reasonable cause of action – where the applicant alleges breaches of the Racial Discrimination Act – where the applicant had been given the opportunity to re-amend her application and provide better particulars – where the applicant failed to particularise her case – whether the application has a real chance of success.

Racial Discrimination Act 1975 (Cth)

Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.46PO

Ebber v Human Rights & Equal Opportunity Commission (1995) 129 ALR 455
McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409
Re Morton; Ex parte Mitchell Products Pty Ltd (1996) 21 ACSR 497 at 513-515
McKenzie v The Department of Urban Services & Anor [2001] FMCA 20
Barnes v Northern Land Council and Ors [2002] FMCA 54

Applicant:

JENNIFER JANDRUWANDA

Respondent:

UNIVERSITY OF SOUTH AUSTRALIA

File No:

AZ 30 of 2003

Delivered on:

2 June 2003

Delivered at:

Adelaide

Hearing date:

2 June 2003

Judgment of:

Raphael FM

REPRESENTATION

For the Applicant:

Ms J Jandruwanda in person

Counsel for the Respondent:

Ms T Birss

Solicitors for the Respondent:

Minter Ellison Solicitors

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs in the sum of $3,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

AZ 30 of 2003

JENNIFER JANDRUWANDA

Applicant

And

UNIVERSITY OF SOUTH AUSTRALIA

Respondent

REASONS FOR JUDGMENT

This is an application by the University of South Australia, which is the first respondent to proceedings commenced by Ms Jennifer Jandruwanda, alleging breaches of the Racial Discrimination Act 1975 (Cth) (“the Racial Discrimination Act”). The application is for summary dismissal of the claim on the ground that no reasonable cause of action has been pleaded.
These proceedings have a significant history. They were commenced following the rejection of a complaint made by the applicant against the respondent to the Human Rights and Equal Opportunity Commission (HREOC) which was concluded by way of a letter of termination pursuant to s.46PO(2) of the Human Rights and Equal Opportunity Commission Act 1985 (Cth) dated 7 January 2003. Thereafter on 3 February 2003 the applicant filed an application pursuant to s.46PO(2) of the Act. The application was brought not only against the current respondent but also against certain other respondents.
On 26 February 2003 the application came before me for directions. The respondent noted the difficulty that it would have in preparing a response to the applicant's application as the application and accompanying documents filed by the applicant did not specify the basis of the application; nor did the documents provide particulars of any unlawful discrimination. On that day I made certain orders. Some of those orders were made at the request of the applicant. The orders I made allowed for the applicant to be given certain documents which she claimed that she needed in order to clarify her claims. I ordered that the applicant serve an amended application on or before 21 March 2003. I made certain orders regarding the ability of other persons named as respondents to file applications to have the matters against them struck out.
An amended application was filed on 21 March 2003 by the applicant. The amended application was not in the form required, it requested orders relating to the provision of documents and a request for the respondents to enter into conciliatory discussions. The amended application was accompanied by an affidavit that had annexed to it an information sheet and a bundle of documents. The affidavit states at paragraph 3:
“I was the subject of racial discrimination followed by unfair dismissal; additional evidence enclosed for consideration.”
And under paragraph 5:
“Claim for compensation attached for losses as detailed.”
The matter came before me again when the other respondents made their applications. I heard those applications and I gave judgment upon them, dismissing the proceedings against them. My decision in those matters is being appealed by the applicant to the full bench of the Federal Court. In relation to the current respondent I gave the applicant a further opportunity to re-amend her application to comply with the rules, and adjourned the matter until today so that that could be done.
An amended application, information sheet and affidavit were all filed on 30 May 2003. The applicant has, in relation to the information sheet, ticked the box which informs the court that she is applying under the Racial Discrimination Act and the box which indicates that she is seeking compensation. However, no other particulars are provided there. In her affidavit she states as follows:
“I have been the subject of racial discrimination by employees of the University of South Australia. This behaviour resulted in blocking of equal access to educational opportunity. Evidence submitted attached. The University of South Australia attempted to cover up my experience of racial abuse by failing to investigate in accordance with proper procedure. My qualifications have been disputed because I am an indigenous person. Vice-Chancellor Denise Bradley has submitted evidence to the Human Rights Commission regarding the handling of my complaint by the Equity and Diversity unit, and a confession and retraction by two abusers, Mark Heyme and John Tearle.”
A folder of documents, most of them original, has been provided, but as is evident from the extracts that I have quoted from the affidavit, particularisation is of a limited nature, and any indication as to the connection between the applicant's Aboriginality and the treatment she alleges she received is totally missing.
During the course of the three directions hearings and this application I have had the opportunity of debating at length with the applicant the nature of her claim. She is not legally represented and therefore she is entitled to some consideration in assessing whether or not the application that she has made in the form that she has made it is capable of indicating a prima facie case or, as Drummond J said in Ebber v Human Rights & Equal Opportunity Commission (1995) 129 ALR 455 at 468:
“A complainant must therefore have at the outset of an inquiry into his complaint sufficient material; it need not be legally admissible evidence ... (reads) ... to show that he is more than a remote possibility of a well-founded claim if he is to defeat an application for summary dismissal of the case that can be made out at the start of the inquiry.”
The most articulate summary of the applicant's complaints is found in the letter of rejection from the HREOC which is annexed to the application. The letter is dated 7 January 2003, and it provides five areas in which the applicant has made allegations against the respondent. If the applicant had only restricted her complaint to these and properly tied in the voluminous evidence which she has provided to those claims, the respondent may at least have had a firm idea of what case it was expected to meet.
Because I am mindful of the strictures against lightly making a decision to dismiss an application on grounds that no reasonable cause of action is disclosed, found in cases such as McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409 at 416 to 417, or in Re Morton; Ex parte Mitchell Products Pty Ltd (1996) 21 ACSR 497 at 513-515, I looked carefully at the documentation that was annexed to the applicant's complaint. A reading of the documents indicates a situation in which improperly followed procedures by the applicant are compounded by misunderstandings on the part of the respondent culminating in suspicion and breakdown of communication. The documents do not indicate or reveal, to my reading, any hint at a causal nexus between the applicant's race and what occurred.
Ms Jandruwanda relies heavily on the document entitled ‘Retraction’ written by one of the staff members with whom she had considerable contact and against whom she has particularly strong complaints. But a careful reading of that document does not indicate that it is in any way a retraction, as the word is normally understood. Certainly it does not, as Ms Jandruwanda would wish it to, indicate that he concedes that he acted in a manner which would be in breach of the Racial Discrimination Act when considering those aspects of her applications with which he dealt.
My experience in relation to claims of this nature which have come before this court indicates that the decisions of the Human Rights and Equal Opportunity Commission, when they have investigated cases, are not always correct. Sometimes applicants, even those who appear on their own behalf, are able to persuade a court that there are instances of discrimination, notwithstanding an adverse finding by the commission. This occurred in McKenzie v The Department of Urban Services & Anor [2001] FMCA 20. For this reason I am very wary of dismissing proceedings at a summary stage. However, in this case there are a number of similarities to that considered by Brown FM in Barnes v Northern Land Council and Ors [2002] FMCA 54.
In both cases vague claims of discrimination were made. In both cases opportunities were granted for the applicants to move nearer to that perfection required under the Rules of the Federal Magistrates Court. In both cases the applicants appeared unable even to come part of the way. I do not think it is fair that the respondent, which is a public institution, should be required to continue to defend proceedings that have been articulated in the manner articulated by Ms Jandruwanda.
This is not to say that I do not believe that she has a genuine belief in her case, nor does it underestimate the difficulties under which she labours as an unrepresented litigant. But after considering with her the possibility of restricting her application just to those matters raised in the summary of the HREOC decision letter, and of monitoring the evidence which she could marshall in support, I have come to the conclusion that this would not really advance matters so far as the respondent is concerned. It would be putting too much onto the respondent in respect of a case which appears, from the documentation presently before the court, to have little real chance of success.
For these reasons I order that the application by Ms Jandruwanda be dismissed. I order that Ms Jandruwanda pay the respondent's costs.

I assess the costs in the sum of $3000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
Although she does not mention them in her amended application or in the information sheet, the applicant, in the bundle of documents which she annexed to her affidavit, claims that she was discriminated by the University of South Australia on the basis of her race, respondents being Nick Heyme, John Tearle, Julia Della Flora, Corliss Gustavson, Liz Follett and Maria Lane. For the avoidance of doubt this dismissal of proceedings shall operate as a dismissal in respect of each of those people.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: