Jin v The State of South Australia
[2016] FCCA 986
•6 May 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JIN v THE STATE OF SOUTH AUSTRALIA | [2016] FCCA 986 |
| Catchwords: HUMAN RIGHTS – Racial discrimination & victimisation – application for summary dismissal of application claiming racial discrimination and victimisation in employment – reasonable prospects of success of application – lack of existence of link between behaviour complained of and applicant’s ethnic characteristics – no link established – application summarily dismissed – costs. |
| Legislation: Racial Discrimination Act 1975, ss.9, 15, 18C, 27 Australian Human Rights Commission Act 1986, ss.26, 46PH(1)(i), 46PO |
| Cases cited: Oshlack v Richmond River Council (1998) 193 CLR 72 Chung v University of Sydney [2001] FMCA 94 |
| Applicant: | MING JIN |
| Respondent: | THE STATE OF SOUTH AUSTRALIA |
| File Number: | ADG 1 of 2015 |
| Judgment of: | Judge Brown |
| Hearing date: | 12 February 2016 |
| Date of Last Submission: | 12 February 2016 |
| Delivered at: | Adelaide |
| Delivered on: | 6 May 2016 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Solicitors for the Applicant: | Not Applicable |
| Counsel for the Respondent: | Ms A C Wells |
| Solicitors for the Respondent: | J R Lambert Crown Solicitor for South Australia |
ORDERS
The application filed on 5 January 2015 is dismissed pursuant to the provisions of rule 13.10 of the Federal Circuit Court Rules 2001 and section 17A of the Federal Circuit Court Act 2001.
The applicant is to pay the Respondent’s costs of and incidental to the Application fixed in the sum of $3,000.00 (three thousand dollars).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 1 OF 2015
| MING JIN |
Applicant
And
| THE STATE OF SOUTH AUSTRALIA |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant in these proceedings is Ming Jin. He has been employed by an organisation known as Service SA since 2005. Service SA provides access to a range of government services for residents of South Australia. These services include motor registration and licencing.
Service SA is part of the Department of Premier & Cabinet. Previously, it was part of the Department of Transport, Energy & Infrastructure. Mr Jin is a public servant, employed pursuant to the provisions of the Public Sector Act 2009 (SA).[1] His employer is the respondent in the proceedings, the State of South Australia. Mr Jin is Chinese in ethnic origin, appearance and descent.
[1] Hereinafter referred to as “the PS Act”
At relevant times, Mr Jin was employed as a customer services officer at the Modbury Customer Service Centre of Service SA. He claims to have been subject to racial discrimination, during the course of his employment at the Modbury Customer Service Centre, in contravention of sections 9, 15, 18A and 27 of the Racial Discrimination Act 1975 (Cth)[2] and subject to victimisation pursuant to section 26 of the Australian Human Rights Commission Act 1986 (Cth).[3]
[2] Hereinafter referred to as “the RD Act” or the Act
[3] Hereinafter referred to as “the AHRC Act”
Mr Min commenced these proceedings on 5 January 2015. At the time, he was legally represented. His then solicitor prepared his application, and an affidavit, deposed to by Mr Jin, in support. Later, following a request for further and better particulars from the respondent, the same solicitor prepared and filed a document headed Further & Better Particulars of Application.[4]
[4] Filed 24 March 2015
Originally, Mr Jin’s application named Chris Oerman as a second respondent. Between November 2012 and January 2015, Mr Oerman was employed as the Executive Director of the Government Services Group, which is the branch of the Department of Premier & Cabinet with executive responsibility for Service SA and so Mr Jin’s ultimate manager.
On 21 November 2013, Mr Oerman found Mr Jin liable to disciplinary action for his behaviour towards a work colleague, Ms Kaye Dwyer, at the Modbury Customer Service Centre, on 8 August 2013. Mr Oerman elected to reprimand Mr Jin pursuant to the provisions of section 55(1)(a) of the PS Act; reduce his remuneration, for a period of one month, pursuant to the provisions of section 53(1)(d); and transfer him from the Modbury Centre to the Adelaide City Service Centre.
On 21 August 2014, Mr Jin complained to the Australian Human Rights Commission[5] that Mr Oerman’s disciplinary actions against him constituted victimisation. In addition, Mr Jin complained about the conduct of Ms Kaye Dwyer toward him, at the Modbury Service Centre.
[5] Hereinafter referred to as the AHRC
In particular, he complained that Ms Dwyer had put a pamphlet, on his work station, on 7 August 2013, with excessive force, whilst asking him rudely to order new forms. This action allegedly made Mr Jin feel humiliated and demeaned. The following day, Mr Jin placed a number of pamphlets on Ms Dwyer’s work station. Ms Dwyer claimed Mr Jin threw the pamphlets and complained about this conduct to management. In part, this complaint led to Mr Oerman’s disciplinary sanction against Mr Jin.
In the past, Mr Jin has apparently complained about other aspects of Ms Dwyer’s conduct towards him, including throwing a pen at him and yelling, in the workplace. Mr Jin described Ms Dwyer as being a serial bully. In all these circumstances, it was Mr Jin’s position that he had been treated less favourably by Mr Oerman because he had been sanctioned by him (Mr Oerman), but Ms Dwyer had not.
In his complaint to the AHRC, Mr Jin wrote as follows:
“Both Ms Dwyer and me are ASO2 customer service officers and we do the same kind of work. The only difference is my race and I have made a couple of complaints to AHRC of Service SA before. Mr Oerman has the motivation to victimise me. But either way, he breached the Discrimination Act.”[6]
[6] See Application filed 5 January 2015
In addition, in his complaint to the AHRC, Mr Jin complained of his treatment, by management at the Modbury Service Centre, in February 2013. He alleged that he had been penalised for his conduct in renewing the registration of a trailer, which had been recorded as stolen. He accused management of the Service Centre of fabricating evidence regarding the theft of the trailer and of a subsequent investigation by police.
On 12 November 2014, a delegate of the President of the AHRC terminated Mr Jin’s complaint pursuant to the provisions of section 46PH(1)(i) of the AHRC Act on the basis that there were no reasonable prospects of it being settled by conciliation.
Pursuant to section 46PO of the Act, upon such termination, the relevant complainant is entitled to apply, to this court or the Federal Court, for a determination as to whether any unlawful discrimination has occurred. This is the course being pursued by the applicant in these proceedings.
In his original application filed on 5 January 2015, Mr Jin seeks the following orders:
“An Order that the First Respondent discriminated against the Applicant in his employment with it by reason of the Applicant's race, colour or national or ethnic origin contrary to the provisions of sections 9 and 15 of the Racial Discrimination Act, 1975.
An Order that the Second Respondent discriminated against the Applicant in his employment with the First Respondent by reason of the Applicant's race, colour or national or ethnic origin contrary to the provisions of sections 9 and 15 of the Racial Discrimination Act 1975.
An Order that the First Respondent prejudiced or threatened to prejudice the Applicant in his employment with the First Respondent by reason that the Applicant had made a complaint to the Australian Human Rights Commission contrary to section 26 of the Australian Human Rights Commission Act 1986 and/ or section 27 of the Racial Discrimination Act 1975.
An Order that the Second Respondent prejudiced or threatened to prejudice the Applicant in his employment with the First Respondent by reason that the Applicant had made a complaint to the Australian Human Rights Commission contrary to section 26 of the Australian Human Rights Commission Act 1986 and/ or section 27 of the Racial Discrimination Act 1975.
An Order rescinding the disciplinary action taken by the Respondents against the Applicant.
An Order that the First Respondent pay to the Applicant $20,000 compensable damages.
An Order that the First Respondent pay to the Applicant $30,000 exemplary damages.
An Order that the Second Respondent provide an apology to the Applicant for his conduct.”
Attached to this application are the Notice of Termination from the AHRC; Mr Jin’s complaint to it; and email correspondence from Mr Jin to Mr Oerman. It is clear from this lengthy correspondence that Mr Jin feels highly aggrieved at how he perceives he has been treated by management at the Modbury Service Centre; Mr Oerman; and Ms Dwyer.
In support of this application, Mr Jin deposed an affidavit of some twenty three paragraphs. This affidavit did not make reference to the incident regarding the trailer registration renewal. Rather the affidavit concentrated on Mr Jin’s relationship with Ms Dwyer and what had happened afterwards in respect of Mr Oerman’s investigation of the matter.
Mr Jin’s affidavit can be summarised as follows:
·In 2009 and 2010, he had complained to AHRC alleging that he had been subject to racial discrimination in his employment at the Modbury Service Centre. No details were provided of the subject matter of these complaints and their outcome;
·On 7 August 2013, Ms Dwyer had dumped a pamphlet on his desk in a forceful manner and asked him rudely to order new forms. When he politely told her he had already ordered the forms, she yelled at him. No details were provided of the actual content of any verbal exchange between Ms Dwyer and Mr Jin in this regard;
·On 8 August 2013, Mr Jin placed a number of pamphlets on Ms Dwyer’s desk. This action led to Ms Dwyer complaining about his behaviour towards her. Mr Jin denied that his placement of the pamphlets constituted any breach of the Code of Ethics of the South Australian Public Sector;
·As a result of Ms Dwyer’s complaint against him, Mr Oerman, the second respondent, directed an investigation into Mr Jin’s conduct. This amounted to an unwarranted escalation of Ms Dwyer’s complaint, which amounted to victimisation of Mr Jin;
·In early November 2013, Mr Oerman’s investigation concluded that the various allegations against Mr Jin had been established. As a consequence, Mr Jin was subject to disciplinary action pursuant to the provisions of the PS Act;
·Mr Jin complains that Mr Oerman elected not to investigate any of his complaints against Ms Dwyer. As a consequence, she was not subject to any sanction under the PS Act;
·As a consequence, Mr Jin has been treated less favourably than Ms Dwyer. In this context, Mr Jin asserts that the only difference between him and Ms Dwyer was “our race” and the fact that he had made complaints of workplace discrimination previously to the Australian Human Rights Commission;
·Mr Oerman knew of these previous complaints;
·As a result of Mr Oerman’s actions against him, Mr Jin claims to have suffered prejudice in employment, hurt, humiliation, embarrassment and distress.
In the further and better particulars of his application, provided on 24 March 2015, Mr Jin, through his then solicitor, provided the further details of his complaint of racial discrimination and victimisations, which can be summarised as follows:
·In 2009 Mr Jin made a complaint against his employer to the AHRC, alleging racial discrimination in his employment. No further details were provided of the complaint or its outcome;
·On 6 December 2010, Mr Jin made a further complaint to the AHRC alleging racial discrimination in his employment. Again no further details were provided of this complaint apart from the broad assertion that it had been made;
·On 28 November 2012, Ms Dwyer threw a pen at him and yelled at him. No details of what was yelled were provided and no further context of the incident are provided other than Mr Jin indicates that Ms Dwyer is not of Chinese ethnic origin or descent;
·This incident was subject to a formal complaint to the management of the Service Centre;
·On 2 November 2012, Mr Jin had made an informal complaint that Ms Dwyer had physically pushed him with her shoulder and yelled at him in front of colleagues and customers. No details of what Ms Dwyer was alleged to have said were provided;
·Mr Jin asserted that no disciplinary action had been taken against Ms Dwyer in respect of either of his complaints;
·In early February 2013, Mr Jin processed an application for the renewal of the registration of a trailer;
·Thereafter, Ms Meredith Dixon, the acting assistant manager of the Modbury Customer Service Centre falsely claimed as follows:
Ø the trailer had been recorded as stolen in the Police database;
Ø the police were investigating the theft of the trailer;
Ø a police officer had been sent to the Modbury Customer Service Centre to investigate the theft;
·On 13 February 2013, Ms Dixon directed Mr Jin to cancel the registration of the trailer;
·Mr Jin alleges that thereafter he contacted police, who told him that the trailer in question was not stolen and there was no police investigation into it. Thereafter, Mr Jin declined to follow Ms Dixon’s directive to him;
·On 14 February 2013, Mr Jin complained to the manager of the Modbury Customer Service Centre, Deidre Kneebone that Ms Dixon had falsely claimed that the trailer was stolen;
·Mr Jin asserts that Ms Kneebone refused to investigate his complaint and issued a further directive to him to cancel the registration of the trailer;
·Again, after re-contacting police, Mr Jin declined to follow Ms Kneebone’s directive;
·In either late February or early March of 2013, Mr Jin complained about Ms Dixon and Ms Kneebone to Associate Director of HR Strategy in respect of his allegation that both had falsely claimed that the trailer had been reported stolen;
·He further asserted that Ms Dixon had spoken to him in a rude and offensive manner and Ms Kneebone was prejudiced and biased against him;
·No details of what Ms Dixon is alleged to have said to Mr Jin were provided. No details were provided in respect of how or in what way Ms Kneebone was prejudiced against him;
·On 12 April 2013, management dismissed Mr Jin’s complaint against Ms Dixon and instead cautioned him in respect of his failure to comply with the directives of Ms Dixon and Ms Kneebone issued to him;
·On 28 May 2013, Ms Dixon directed Mr Jin to call a ticket. Customers at the Service Centre are able to access an automatic ticket machine which designates the order in which they are dealt with;
·Mr Jin asserts that there was no customer to be called and when he indicated this to Ms Dixon, she yelled at him. No further details are provided as to what Ms Dixon specifically said to Mr Jin on this occasion;
·Mr Jin asserts he attempted to arrange a meeting with Ms Feist, the coordinator of Service Centres, to discuss this matter but she cancelled the appointment;
·As a consequence, Mr Jin complained, by email, to Dennis Balacco, regarding Ms Dixon’s conduct. Mr Balacco was the manager of the Modbury Service Centre at the time;
·On 12 June 2013, the applicant was cautioned for not following Ms Dixon’s direction to call a ticket and the manner in which he had spoken to her;
·On 7 August 2013, a conversation took place between Mr Jin and Ms Dwyer about the ordering of new forms;
·On 7 August 2013, Mr Jin complained to Kylie Barrett, the then assistant manager about the manner in which Ms Dwyer had spoken to him in relation to the ordering of the forms. No particulars were provided of what was specifically said and how it was offensive;
·On 8 August 2013, Mr Jin placed a small bundle of forms on Ms Dwyer’s desk;
·On 9 August 2013, Ms Dwyer complained to Mr Balacco about the manner in which Mr Jin had spoken to her on 7 August and the manner in which he had placed the forms on her desk;
·On 28 August 2013, Mr Jin was suspended from work, whilst Mr Oerman investigated Ms Dwyer’s complaints against him;
·On 7 November 2013, Mr Oerman upheld the allegations of misconduct against Mr Jin.
In these circumstances, Mr Jin alleges that he has been subject to unlawful discrimination, pursuant to section 9, 15 & 27 of the RD Act because of the two cautions administered to him; his suspension from duties; the investigation, which Mr Oerman instigated into his conduct; the resulting disciplinary action taken and his reassignment; and the failure to caution or otherwise discipline either Ms Dwyer or Ms Dixon.
These actions are said to be discriminatory because Mr Jin is of Chinese ethnic origins, whilst Ms Dwyer and Ms Dixon do not have such characteristics or ethnicity. In addition, Mr Jin has made two previous complaints of racial discrimination to the AHRC.
In their response, filed 24 April 2015, both respondents deny any discrimination against Mr Jin, in his employment, on the basis of his race, colour or nationality or ethnic origins. They further deny any discrimination against him because of his previous complaints to the AHRC.
On 21 July 2015 it became apparent to the court that Mr Jin was un-represented in the case. On this date he filed a notice of discontinuance which seems to indicate that he was no-longer seeking any orders against Mr Oerman personally.
At the same time, he filed an amended application, which was a photocopy of his original application with orders sought numbered 2 and 4 struck through; the figure of $20,000.00 specified in orders 6 and 7 replaced with the figure of $700,000.00; and order 8 seeking an apology from the State of South Australia in lieu of that sought from Mr Oerman. Mr Jin also indicated, by way of interlocutory or interim orders sought, that Mr Oerman be removed as the second respondent.
Mr Jin has caused two subpoenae to be issued, directed to the Commissioner of the South Australian Police, seeking production of documents relating to Ms Dixon and police, relating to the trailer inquiry; and records relating to the trailer itself. He has also sought production from the respondent of email exchanges between him and Ms Dixon and Ms Kneebone.
By necessary implication, the relevance of these documents goes to the assertion of Mr Jin that he was justified in not complying with any directions purportedly made to him, either by Ms Dixon or Ms Kneebone, to cancel the renewal of the subject trailer registration.
The current application
On 4 December 2015, the respondent filed an application seeking the summary dismissal of Mr Jin’s application. In addition, the respondent seeks an order for costs. Mr Jin opposes the application, which was listed for hearing on 12 February 2016.
It is the respondent’s position that Mr Jin has failed to identify any sufficient causal connection between the conduct of which he complains – namely his treatment in the workplace; the investigation of the complaints later made against him; and the subsequent disciplinary action taken against him; – and Mr Jin’s race or ethnicity.
As such, the respondent submits that Mr Jin has not demonstrated any entitlement to a remedy arising under the RD Act or the AHRC Act and has no reasonable prospects of successfully prosecuting his claim.
The respondent’s application is supported by an affidavit of Jonathan Lambert, a solicitor in the Crown Solicitor’s Office.[7] Mr Lambert deposes as follows:
[7] See affidavit of Jonathan Ralph Lambert filed 4 December 2015
“A statement of “Further and Better Particulars of Application” was filed by the Applicant against the Respondents and served on 24 March 2015.
On, or around, 21 July 2015, the Applicant filed a Notice of Discontinuance removing Mr Chris Oerman as a party, namely the Second Respondent.
In the Respondent's respectful contention, the bases upon which it is alleged that the Respondents engaged in discriminatory acts and omissions pursuant to s9, 15 and 27 of the RacialDiscriminationAct1975, (“RDA”), are untenable and the Claim should be disposed of summarily.
The broad allegations of discrimination and victimisation pursuant to section 9, 15 and 27 of the RDA are:
a. Unsupportable on the facts as acts of discrimination or victimization because they are insufficiently particularised so as to disclose the manner in which the acts or omissions amount to discriminatory acts or omissions;
b. Insufficiently connected to the specific sections of the RDA so as to properly disclose the case against the Respondent; and
c. Fail to identify any causal connection between the alleged conduct of discrimination/victimization and the applicant's race or ethnicity.
The complete lack of causal nexus between the alleged conduct/omissions and the Applicant's race or ethnicity makes the Claim doomed to fail. The allegations are bases solely on the Applicant's perception of events without objective evidence of or even any material facts disclosing how the alleged impugned conduct has any discriminatory quality sufficient to substitute racism/victimisation for the purposes of the RDA.
The Applicant has no reasonable prospects of successfully prosecuting the Claim.”[8]
[8] Ibid at paragraphs 5 - 8
On 8 December 2015, Mr Jin filed a further affidavit. In this affidavit he set out further complaints he had regarding his treatment at the Modbury Customer Service Centre. These complaints can be summarised as follows:
·On 28 October 2011, Mr Jin said to a colleague “Deb”, in the lunch room, that he did not know that it was a casual day. To which she responded “didn’t you fuck’n loot [sic] at the message board?” Mr Jin asserts he was offended by the abusive language;
·In November 2011, a colleague “Fiona” threw a folder of licenses into Mr Jin’s face and said “do this”. This behaviour allegedly caused Mr Jin to be shocked and upset;
·In November 2011, Fiona complained about how long it had taken Mr Jin to go to the toilet;
·On 23 November 2011, Fiona grabbed his cup of tea, in front of a customer;
·Mr Jin reiterated his allegations regarding the dishonesty and lack of integrity of Ms Dixon, and Ms Kneebone, in respect of the registration of the allegedly stolen trailer;
·Mr Jin made further complaints regarding the integrity of the investigation into his conduct inaugurated by Mr Oerman;
·On 28 May 2013, Ms Dixon was rude to him, when she directed him to “call a ticket when there were no customers present”;
·In November 2012, Ms Dwyer was rude to him;
·On 7 August 2013, Ms Dwyer forcefully placed a pamphlet on his desk and raised her voice to him;
·On 25 October 2013 Mr Jin complained to Mr Oerman that Ms Dwyer was a bully.
The affidavit in question is some sixty-nine paragraphs in length. In the affidavit, Mr Jin complains of being bullied in the workplace and subject to discourteous and rude behaviour. This behaviour consists of being yelled at and interrupted by his colleagues. In addition, Mr Jin complains that the investigation into his alleged misconduct in the workplace was unfair and comprised a cover-up of his colleagues’ misconduct and distortion of evidence, particularly in regards to the incident of the allegedly stolen trailer.
In my assessment, apart from the fact that Mr Jin is a person of Chinese ethnicity and the persons about whom he complains are not, there is no specific allegation that Mr Jin has been subjected to any racial slur or direct discrimination related to his racial or ethnic origins. He does not assert that he been dismissed from his position, nor does he allege that he has been denied career advancement because of his ethnicity.
Significantly, in this case, Mr Jin does not allege that he has been subject to offensive behaviour because of his race, colour or national or ethnic origins in contravention of section 18C of the RD Act. This section reads as follows:
“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.
Mr Jin’s complaint is that various of his co-workers were rude, brusque and impolite to him on a number of occasions. He complains of being bullied and harassed in the workplace. He also asserts that senior staff were unprofessional and possibly corrupt in how they approached the specific incident of the allegedly stolen trailer, which Mr Jin declined to de-register in the face of a direction from staff senior to him to do so.
Mr Jin clearly continues to believe that he was right in how he approached the issue of the trailer and accessed the computer records in respect of it. It is his view that it was therefore proper for him to refuse to follow the directive of Ms Dixon in respect of it. He denies that he was rude to her or other staff members. Accordingly, it is his view that the conclusion of the investigation conducted into his behaviour is wrong.
In these circumstances, Mr Jin remains aggrieved that he was subject to the disciplinary proceedings instigated by Mr Oerman. It is his view that this process was unfair to him and procedurally flawed. The only reference, in Mr Jin’s affidavit of 9 December 2015, to any issue of racial discrimination, is a peripheral one. Mr Jin deposed as follows:
“During the course of the investigation, Ms Michelle Warncken, who had a good relationship with Ms Dixon, made a dishonest statement that I was rude to Ms Dixon and felt I pulled the racist thing a lot. This is completely untrue. I just told Ms Dixon firmly that I would not follow her unjustified direction and I never said anything about racist.”[9]
[9] See Mr Jin’s affidavit of 9 December 2015 at paragraph 29
Mr Jin remains firmly convinced that it was unwarranted for Mr Oerman to discipline him and his (Mr Jin’s) actions were entirely justifiable and correct. He asserts that he has been denied natural justice as a consequence of the manner in which Mr Oerman elected to conduct the disciplinary proceedings.
As such it is Mr Jin’s position that the investigation into the circumstances surrounding the registration of the trailer and the allegations that he was rude to Ms Dixon are not only erroneous but quite possibly corrupt. Mr Jin deposed as follows:
“On 21 November 2013, Mr Oerman sent me a letter informing me that he intended to impose a sanction of reprimand, reduction in my remuneration level for one month and assign me alternative duties.
That was the last straw. I found the Dept was evil. I trusted it to uphold justice but only proved it could not be trusted. Mr Oerman not only not treated me fairly and with respect, creating a hostile and humiliating work environment, but when I was left alone to stand up against bully and misconduct, he would cover up the others’, distort facts and label me as committing misconduct.”[10]
[10] Ibid at paragraph 56 - 57
I acknowledge that these are potentially very serious allegations of misconduct. However, the allegations do not appear to have any nexus to Mr Jin’s Chinese ethnicity per se. Rather they are general complaints that Mr Jin has not been given a fair go by Mr Oerman and has been bullied in his workplace.
It is not my function to determine whether Mr Oerman’s conclusions were correct or that the sanctions imposed by him were the appropriate ones. These proceedings are not an inquiry into the disciplinary proceedings against Mr Jin or the general propriety of the behaviour of either Mr Jin or other staff members in his workplace.
Rather, given the manner in which Mr Jin has brought the proceedings, I must determine whether any of Mr Oerman’s actions or the actions of other staff members at the Modury Customer Service Centre towards Mr Jin, were rendered unlawful because they were motivated, at least in part, by matters related to Mr Jin’s Chinese ethnicity. [11]
[11] See RD Act at section 18
I accept, however, from Mr Jin’s perspective and indeed the perspective of his co-workers, the working environment at the Modbury Customer Service Centre was not a happy or harmonious one.
The legislative basis for the application
Section 17A of the Federal Circuit Court of Australia Act 1999 (Cth) provides as follows:
“(1)The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is prosecuting the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2)The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is defending the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
(4)This section does not limit any powers that the Federal Circuit Court of Australia has apart from this section.”
Rule 13.10 of the Federal Circuit Court Rules 2001 reads as follows:
“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.”
The jurisdiction of the court to dismiss a claim upon the basis that it discloses no reasonable cause of action is to be sparingly invoked.[12] The case “must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination … by the court …”[13] In Webster v Lampard[14] the High Court said as follows:
“The power to order summary judgment must be exercised with exceptional caution … and should never be exercised unless it is clear that there is no real question to be tried.”
[12] See McKellar v Container Terminal Manager Services Limited (1999) 165 ALR 400 per Weinberg J at 415 [12]
[13] Dey v Victorian Railway Commissioners (1949) 78 CLR 62
[14] Webster v Lampard (1993) 177 CLR 598 at 602
In McKellar Weinberg J, after summarising the various authorities, relating to summary dismissal, said as follows:
“… a proceeding should not be dismissed summarily merely on the ground that it appears, at the early stage of the hearing of the motion brought for that purpose, to advance a highly implausible claim which will very probably fail, but only where the claim may properly be described as unarguable, and almost incontestably bad, or where the claim is otherwise objectionable as an abuse of the process of the court.”[15]
[15] Ibid at 416 [18]
Particular care must be taken in respect of applications for summary dismissal in cases in which the applicant concerned is self-represented. Such persons are very often at a significant disadvantage because of a lack of legal knowledge and an ignorance of pleading practices. As such, they may experience difficulty in properly formulating otherwise valid legal claims because of a lack of legal vocabulary and capacity to identify salient legal issues and express them in appropriate form.
In this context, I must bear in mind the possibility that an unrepresented litigant could possibly be assisted, through appropriate channels, to get his/her application into proper form for consideration by the court.[16] However, whilst caution is appropriate, in a summary dismissal application, the court is not to ignore the interests of the other party concerned. In Morton v Mitchell Products[17], Sackville J said as follows:
“Where a party appears in person, he will ordinarily be at a disadvantage. That does not mean that the court will give to the other party less than he is entitled to. Nor will it confer upon the party in person advantages which, if he were represented, he would not have. But the court will, I think, be careful to examine what is put to it by a party in person to ensure that he has not, because of the lack of legal skill, failed to claim rights or to put forward arguments which he otherwise might have done.”
[16] See Tardy v Secretary of the Department of Community Services & Health (unreported, 9 October 1990 per McLelland J)
[17] Morton v Mitchell Products [1996] FCA 828
In appropriate cases, the court should not shy away from summarily dismissing applications, which have no tenable grounds as it is in the public interest that unmeritorious cases be dismissed sooner rather than later. In Travers v New South Wales[18] Lehane J affirmed the view of the former President of the Human Rights & Equal Opportunity Commission, Sir Ronald Wilson, who said as follows in Assal v Department of Health, Housing & Community Services:[19]
“It is in the public interest, as well as the interest of both parties, that the hearing of a complaint which is clearly showing 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.”
[18] Travers v New South Wales [2000] FCA 1565
[19] Assal v Department of Health, Housing & Community Services [1992] EOC 92-409 at 78,900
Lehane J added, in Travers:
“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.”
These considerations are all relevant to the present proceedings. Mr Jin is unrepresented. He has no legal training. In this context, however, I note that his initial application, affidavit in support and statement of further and better particulars were all professionally prepared and, as such, were drafted by a person aware of the technicalities surrounding the drafting of legal documents.
More recently, Mr Jin has prepared his own affidavit material, which has been lengthy in nature and in which he has set out his claims of being unfairly dealt with. His more recent documents can be described as being polemic in nature, containing as they do, significant attacks on the honesty of Mr Oerman and Ms Dixon in particular.
As a consequence of both his professional representation and his own efforts, I consider that Mr Jin has been given an adequate opportunity to put his case, as he sees fit. He is not to be placed at an advantage, over a represented person, in respect of the presentation of a case, which is otherwise unmeritorious.
Rather, the court should act to prevent an unrepresented person from falling into the traps or pitfalls, in litigation, to which a represented person would be alerted, particularly in regards to legal technicalities in regards to such matters as pleadings. However, this obligation does not extend to allowing an unmeritorious application to continue unchecked. That would not be in the public interest or fair to the parties concerned.
In this context, the onus is on the State of South Australia to establish that Mr Jin does not have an arguable case to put before the court. The onus to be discharged is a high one, as the respondent must establish:
“… a high measure of satisfaction in the court that the proceedings are of a character that they should be dismissed.”[20]
[20] See Paramasivam v Wheeler & Ors [2000] FCA 1559 per Moore J
In Ebber v Human Rights & Equal Opportunity Commission[21] Drummond J summarised the level of material, which the claimant needed to muster, in order to defeat an application for summary dismissal. His Honour said as follows:
“A complainant must therefore have at the outset of the inquiry into his complaint sufficient material, it need not be legally admissible evidence, … to show that he has 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.”
Application of the legal provisions of the Racial Discrimination Act and the Australian Human Rights Act to the circumstances of the case and the application for summary dismissal.
[21] Ebber v Human Rights & Equal Opportunity Commission (1995) 129 ALR 455 at 468
Section 9 of the RD Act is the generic section which enshrines Australia’s domestic obligations, following its ratification of the International Convention on the Elimination of all Forms of Racial Discrimination. Specifically, 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.
Thereafter, following sections of the Act deal with specific incidents of racial discrimination, in various aspects of public life. These include the provision of goods, services, accommodation and specifically relevant in the context of these proceedings, employment.
The ostensible basis of Mr Jin’s application is that he has suffered discrimination, at the hand of the respondent, in his employment at the Modbury Customer Service Centre, in contravention of the provisions of section 15 of the Act.
Section 15(1) of the RD Act reads as follows:
“(1)It is unlawful for an employer or a person acting or purporting to act on behalf of an employer:
(a)to refuse or fail to employ a second person on work of any description which is available and for which that second person is qualified;
(b)to refuse or fail to offer or afford a second person the same terms of employment, conditions of work and opportunities for training and promotion as are made available for other persons having the same qualifications and employed in the same circumstances on work of the same description; or
(c)to dismiss a second person from his or her employment;
by reason of the race, colour or national or ethnic origin of that second person or of any relative or associate of that second person.”
Accordingly, in order to demonstrate a contravention of section 15, it is necessary for Mr Jin to demonstrate a connection between the conduct of which he complains and his race and ethnicity. This follows because of the use of the phrase “by reason of” in the section concerned.
Mr Jin does not complain that he has been dismissed from his employment because of his ethnicity. Rather, he alleges, I think, that he has not been treated in the same way, by his employers, as other employees, who do not share his ethnicity. This differentiation has arisen because of the complaint sustained against him by Mr Oerman and the various incidents of what Mr Jin characterises as rudeness towards him.
If there has been such a distinction in the treatment Mr Jin has received and that accorded to others at the Modbury Customer Service Centre, Mr Jin must demonstrate that there is a logical causal connection between that treatment and his ethnicity. It is not sufficient for Mr Jin to establish that such treatment occurred and then point to differentiations between his ethnicity and that of the other persons concerned in his various complaints to found his action under the RD Act.
In this context, it is not sufficient for Mr Jin to apply the following course of reasoning: I am of Chinese ethnicity; I have suffered consequences, which I consider are adverse to me, which consequences emanate from Mr Oerman and other persons at the Modbury Customer Service Centre; Mr Oerman and those other persons do not share my ethnicity and are aware of my Chinese ethnicity; therefore the motivation for their conduct against me is my ethnicity and accordingly I have been subject to racial discrimination.
In Commonwealth of Australia v Stamatov[22] Von Doussa J considered the effect of the words “by reason of”, appearing in section 15 of the RD Act, required the practical application of causation principles and the phrase itself implied a relationship of cause and effect. That is issues relating to a person’s ethnicity or race caused, in practical terms, the detrimental actions of which the applicant concerned subsequently complains.
[22] Commonwealth of Australia v Stamatov[1999] FCA 105
In my view, in the current case, there is no evidence to indicate that the applicant’s race or ethnicity caused the rudeness of which he now complains. More significantly, the various incidents surrounding the registration of the allegedly stolen trailer and the controversy it sparked between Mr Jin and Ms Dixon do not have their genesis in issues to do with Mr Jin’s ethnicity. Rather, Mr Jin believes his actions in respect of the trailer were correct, whereas other officials of the respondent think otherwise.
In these circumstances, I accept that Mr Jin feels greatly aggrieved that he has been cautioned, suspended from work and ultimately disciplined because of his conduct, which he considers justified. I also accept that he feels that he has been personally humiliated, insulted and offended by these actions.
However, in my view, to fall within the purview of the RD Act, it is not sufficient that Mr Jin subjectively feels these emotions and personally ascribes them to racially discriminatory behaviour on the part of the staff of the Modbury Customer Centre and later Mr Oerman and the officers who conducted the disciplinary inquiry. Rather, there must be an objective connection between Mr Jin’s emotional reaction to what has occurred to him and his racial characteristics.
As previously indicated, Mr Jin has not specifically pleaded any breach of the provisions of section 18C of the RD Act. However, I accept that he feels he has been offended, insulted, humiliated and intimidated by what has occurred to him. But as Drummond J points out in Hagan v Trustees of the Toowoomba Sports Ground Trust[23]
“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?
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.”
[23] Hagan v Trustees of the Toowoomba Sports Ground Trust (2001) 105 FCR 56 at [15]
It is apparent that, prior to the trailer incident, the Modbury Customer Service Centre was, at times, not a harmonious workplace. In particular, relations between Mr Jin and Ms Dwyer were strained from time to time. Each complained about the other’s rudeness, particularly in regards to the placement of pamphlets. No allegations are made by Mr Jin that this rudeness had any overt racial component.
Rather Mr Jin’s complaint is that, notwithstanding his and Ms Dwyer identical public service status, he was subject to sanction and she was not. As a consequence of this state of affairs, he deduces that only conceivable motivation for this action can be his different racial background to that of Ms Dwyer.
In my view, it is clear that Mr Jin was disciplined because he disregarded the direction of Ms Dixon, in respect of the de-registration of the trailer and because it was found that he had been rude and oppositional to her. I do not believe that there is any causal relationship between these actions and Mr Jin’s ethnicity.
In addition, Mr Jin does not point to any incident, either physical or verbal, emanating from either Ms Dixon or Mr Oerman or any other staff member at the Modbury Customer Centre, which a person of Chinese background would find objectively to be insulting, humiliating or otherwise demeaning because of his/her background. The humiliation felt by Mr Jin arose essentially because he did not agree with the reaction of the respondent’s staff to how he dealt with the trailer issue and what followed it.
Section 9 of the RD Act is a more general section which proscribes racial discrimination, within Australia, in aspects of public life. It is unlawful for a person to do any act, which is based on race or other aspects of ethnicity. In my view, Mr Jin has not been able to provide any evidence to establish that any actions taken by the respondent were based on any aspect of Mr Jin’s ethnic origins.
Rather the outcome adverse to him, of which Mr Jin complains, arose because of incidents in the workplace, in which Mr Jin had cause to challenge the chain of command applicable to him, as a consequence of the difference of opinion relating to the trailer. I can find no evidence to support any assertion that these various actions were based on Mr Jin’s racial background.
In addition, I can find no evidence that the particular unhappiness, which arose between staff at the Modbury Customer Service Centre, emanated from any issue related to Mr Jin’s ethnicity. Whatever was the genesis of the conflict in the workplace, there is no evidence to indicate that it was objectively based on any individual’s racial or ethnic origins.
Accordingly, in my assessment, Mr Jin has provided no causal connection between his ethnicity and racial background and the behaviour of which he complains. For these reasons, I have reached the view that his application discloses no reasonable prospects of being successfully prosecuted.
At the hearing of the respondent’s application for summary dismissal, Mr Jin modified his position somewhat and asserted that the main thrust of his application was on his allegation that he had been subject to victimisation because of previous complaints made by him, of racial discrimination to the Australian Human Rights Commission.
In this regard, Mr Jin relies on section 27(1) of the RD Act, which prohibits any person hindering, obstructing, molesting or interfering with any other person performing any powers or functions arising under the act.
In particular, section 27(2) creates an offence whereby any person causes prejudice to another person’s employment or intimidates or otherwise coerces that other person because he or she has made or proposes to make a complaint to the AHRC. Section 26 of the AHRC Act creates a similar offence.
The difficulty with this aspect of Mr Jin’s claim is similar to the other aspects of his case. Mr Jin has made a bald statement that he has made two previous complaints, regarding alleged racial discrimination, to the AHRC. He has not provided any details, whatsoever, of what these complaints entailed and against whom they were made. As such, I do not know what the outcomes of these complaints were.
More significantly, Mr Jin has not provided any evidence regarding the connection between these previous complaints and any coercion, intimidation and prejudice in employment to which he alleges he has been subsequently subjected. As such, there is simply no evidence that Mr Jin has been prejudicially affected by his historical complaints to the AHRC. Nor does Mr Jin allege that the outcome of Mr Oerman’s inquiry was influenced by the fact that he had made these previous complaints.
In these circumstances, it is not sufficient for Mr Jin to assert that because he has made previous complaints to the AHRC Mr Oerman and others have a motivation to discriminate against him. However, Mr Jin has not provided details of the actions or events by which he asserts his employment has been prejudiced by reason of his previous complaints. It is not sufficient for Mr Jin to assert his subjective view that this can be one of the substantive reasons why he has been treated in the way in which he has.
I do not doubt that Mr Jin genuinely holds the view that he has been unfairly dealt with by the respondent. His application is an inchoate appeal for redress in respect of this perceived unfairness. However, Mr Jin needs to connect the events, which he claims are the source of this unfairness, to the specific sections of the RD Act and AHRC Act on which he purports to rely. It is not sufficient for him to point to his own subjective feelings of unfairness. Rather, in these summary dismissal proceedings, I must engage in an objective analysis of the evidence available to ascertain whether any proscribed conduct has been engaged in or not.
After conducting that analysis, I can find nothing in the material to indicate that such a case could be made out. I also accept that the onus on the respondent for the summary dismissal of proceedings involves the establishment of a high degree of satisfaction, in the court, that the proceedings are of a character, which warrants their dismissal because there is no reasonable prospect of success. I am so satisfied in this particular case, notwithstanding my view that Mr Jin himself remains deeply upset by his perception of how he has been treated by the respondent.
For these reasons, I have come to the conclusion that Mr Jin’s application filed on 5 January 2015 should be summarily dismissed pursuant to the provisions of section 17A of the Federal Circuit Court Act and Rule 13.10 of the Federal Circuit Court Rules on the basis that Mr Jin has no reasonable prospects of successfully prosecuting his application.
The respondent has also sought an order for costs. In the ordinary course of events, successful applicants are entitled to their costs. There is no general exception in regards to cases where breaches of human rights are asserted or some other public interest consideration.[24]
[24] See Oshlack v Richmond River Council (1998) 193 CLR 72 at 100 per McHugh J
I am conscious that Mr Jin has represented himself in the proceedings and, as I indicated above, holds a genuine belief about the misconduct of the individuals named by him in these proceedings, all of whom are or were previously employed as public servants by the State of South Australia.
In this regard, I accept that Mr Jin feels passionately that he has been grievously wronged by the State of South Australia. This feeling is reflected in the lengthy documents, which he has prepared and the correspondence he has forwarded to those interested in his case.
In Chung v University of Sydney[25] a case involving the summary dismissal of a claim of discrimination founded on disability, Driver FM (as His Honour then was) said as follows:
[25] Chung v University of Sydney [2001] FMCA 94 at [27] – [28]
“In addition to the general principles that I have referred to in relation to the exercise of the discretion of summary dismissal it seems to me that there are cases where it is in the interests of justice that litigants be given some protection from themselves.
It seems to me that this is such a case.
By disposing of these proceedings now Mr Chung will be limited in his costs liability. It seems to me inevitable that if the proceedings continue to a full hearing Mr Chung would be wholly unsuccessful and would be unable to resist an order that he pay substantial costs that would have been incurred by the university. Accordingly, I think it is in the interests of both the parties and also in the public interest, in terms of the efficient disposition of court resources, that no further time is devoted to these proceedings.”
These comments appear apposite to the current matter. Mr Jin is not a person of significant means. Although the State of South Australia has deep pockets, I am mindful that those pockets are filled with public monies. If a significant costs order is made against Mr Jin, he is likely to have limited means to pay such an order but the consequences of a failure to satisfy it may be very severe for him personally.
I will order that Mr Jin pay the respondent’s costs pursuant to Rule 21.02(2) of the Federal Circuit Court Rules. This authorises the court to set the amount of costs to be allowed and specify the method by which those costs are to be calculated. Rule 21.10(a) establishes a schedule of fixed event costs.
I calculate the amount of costs payable by Mr Jin by reference to a stage 2 general federal law proceeding under schedule 1 of the Rules, which is an amount of $3,422.00 together with the daily hearing fee, for a half day hearing, of $1,024.00, making a total of $4,446.00.00. I will discount this to $3,000.00 in recognition of the early conclusion of the case, which I consider to be in the public interest.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding ninety four (94) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 6 May 2016
3
13
6