Kirunda v New South Wales Police (No.2)
[2016] FCCA 2269
•2 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KIRUNDA v NEW SOUTH WALES POLICE (No.2) | [2016] FCCA 2269 |
| Catchwords: PRACTICE AND PROCEDURE – Application for leave to file an Application in a Case – leave refused. |
| Legislation: Racial Discrimination Act 1975 (Cth) |
| Cases cited: Kirunda v New South Wales Police [2016] FCCA 1812 |
| Applicant: | BILL WILLIAM KIRUNDA |
| Respondent: | NEW SOUTH WALES POLICE |
| File Number: | SYG 1281 of 2014 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 20 July 2016 |
| Date of Last Submission: | 27 July 2016 |
| Delivered at: | Sydney |
| Delivered on: | 2 August 2016 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Mr M Seck |
| Solicitors for the Respondent: | Minter Ellison |
ORDERS
Leave for the applicant to file a further Application in a Case is refused.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1281 of 2014
| BILL WILLIAM KIRUNDA |
Applicant
And
| NEW SOUTH WALES POLICE |
Respondent
REASONS FOR JUDGMENT
On 2 August 2016 I refused leave for the applicant to file an Application in a Case made by him on 18 July 2016 seeking to “stay” the handing down of judgment in this matter on two Applications in a Case filed by the applicant on 4 September 2015 and 18 November 2015, respectively. The following are the reasons for that refusal. This judgment should be read with Kirunda v New South Wales Police [2016] FCCA 1812 (“Kirunda (No 1)”) handed down on the same day. The background to the applicant’s case, and that judgment, is set out at ([4] – [21] of Kirunda (No 1)).
The applicant sought the stay of the judgment for the opportunity to file further evidence in relation to his claims of “stalking and intimidation” that he alleges has occurred by instigation of the respondent.
The applicant sought to present further evidence, as requested through his local Member of Parliament (NSW) (“his local MP”). This evidence is attached to the affidavit made by the applicant on 18 July 2016 provided by the applicant with his application for leave to file his Application in a Case.
The evidence appears to be correspondence from his local MP attaching correspondence between her and Mr Kevin Anderson, Parliamentary Secretary to the Deputy Premier of New South Wales. The correspondence refers to the applicant’s allegations in his substantive proceedings in relation to an incident in August 2012, which he said was reported to NSW Police, and a further complaint about an incident in April 2016.
The applicant submitted that the information from a NSW police officer (“Region Commander Clifford”), and referred to in the correspondence from Mr Anderson, “misrepresented” the applicant’s actions and the statement provided by Mr Clifford was “potentially a wilful falsehood”. The applicant submitted that this weighed in the applicant’s favour in reinstating his substantive proceedings to
“enable the Court to determine to what extent, if any, the actions of Sergeant Reynolds were justified or authorised, in order to determine the likelihood of a pre-meditated intention to defeat any investigation”. I note Sergeant Reynold was referred to in the correspondence and in the arguments by the applicant in Kirunda (No 1).
On 13 May 2014 the applicant made an application to the Court alleging breaches of the RDA by the NSW Police. He claimed that the respondent, its employees and other unidentified persons had engaged in various conduct described as harassment, intimidation and victimisation of him.
On 18 February 2015, the application was dismissed with costs because of the applicant’s non-appearance at the hearing of the respondent’s Application in a Case, which sought the striking out of a substantial part of the applicant’s pleadings (filed on 17 October 2014). The applicant subsequently made two Applications in a Case (the first on 4 September 2015, the second on 18 November 2015) seeking to reinstate his application, set aside the costs order of 18 February 2015 and to extend the time in which to object to the subsequent costs assessment made by a Registrar of the Court as a result of the orders made on 18 February 2015.
The applicant’s Applications in a Case are the subject of the consideration in Kirunda (No 1). The parties were informed on 14 July 2016 of the Court’s intention to hand down that judgment on 18 July 2016. This was some 2 and a half months since the hearing of the applicant’s Applications in a Case on 3 May 2015.
About an hour or so before the scheduled time for the handing down of the judgment, the applicant sought to file a further Application in a Case for the purposes set out at [3] above. This was refused by the Registry of the Court. The parties appeared before the Court as scheduled on 18 July 2016. The handing down of the judgment was deferred until 20 July 2016 to enable the respondent to consider its position on the latest “attempted” Application in a Case. It also gave the applicant the opportunity to prepare his arguments in support of the leave sought.
On 20 July 2016 the applicant sought to provide written submissions in support of his leave request for his latest Application in a Case. In that light, I again deferred the handing down of judgment to enable the respondent to prepare written submissions in reply.
It should be, again, noted that the applicant’s original substantive application was dismissed for non-appearance. He then delayed seeking reinstatement for 6 months until the making of his first Application in a Case on 4 September 2015 (see [16] – [17] of Kirunda (No 1)). The second Application in a Case, made on 18 November 2015, sought again to extend the time to object to the costs assessment (also sought in the 4 September 2015 Application in a Case). Further, this delay must be seen in light of the findings made in Kirunda (No 1) concerning the rejection of the applicant’s explanations for the earlier delays (see [31] – [117] and [126] – [140] of Kirunda (No 1)).
The applicant’s attempt to “re-open” his case and leave for the filing of the Application in a Case should be refused.
First, the evidence that the applicant now seeks to submit is not relevant to, nor does it purport to be relevant to, the applicant’s
non-attendance at the Court on 18 February 2015, which led to the dismissal of his originating application, nor is it relevant to the matter of the extension of time to object to the subsequent costs assessment.
Second, there appear to be two foci of the applicant’s attempt to introduce evidence at this very late stage of the two Applications in a Case. One, an incident that the applicant says occurred on 7 April 2016, that he reported to the Merrylands police on 8 April 2016. Two, the claim of the continuing victimisation of the applicant by the respondent.
The applicant claims to have been the subject of an incident on 7 April 2016 where a bottle was thrown from a moving vehicle in his direction, which he reported on 8 April 2016. He approached his local State MP who wrote to the relevant State Government Parliamentary Secretary on 28 April 2016, who provided a response on 22 June 2016. Copies of these are attached to the applicant’s affidavit provided in support of his third Application in a Case.
The applicant’s current submissions raise two specific matters. One, the applicant contests the statement by police that although he reported the bottle throwing incident he did not want police to take any action. While that matter is raised in both letters, his local MP reports:
“In relation to the incident on 8 April 2016 on Addlestone Road, Merrylands, Mr Anderson advised that you did not want to take any action.”
Two, the applicant’s submissions also seek to present this incident as linked to the claimed misconduct of NSW Police when he reported an earlier incident which occurred in August 2012 (see Kirunda (No 1) at [6], [90] – [91] and [175]).
That is, as stated above, that this is an example of a “potentially wilful falsehood” by the relevant region Commander which supports the applicant’s contention regarding the conduct of the NSW Police generally against him, and specifically in relation to the August 2012 incident. Further, the applicant complained of the Commander’s repetition of the alleged “sidestepping” of the applicant’s complaint in relation to how the August 2012 incident was handled.
It is also of note that the Parliamentary Secretary’s letter to the local MP also states, in relation to the applicant’s complaint about the August 2012 incident:
“[The local region Commander] advises me the Ombudsman in November 2015 ratified the manner in which the Holroyd Local Area Commander addressed Mr Kirunda’s complaint [about the August 2012 incident] which was undertaken in compliance with Part 8A if the Act.”
I have considered the applicant’s submissions and the contents of his affidavit. However, I agree with the respondent’s submissions as to the lack of relevance of this “evidence” to a fact in issue in relation to the two Applications in a Case and further, that the “evidence” is inadmissible ([8] – [13] of the respondent’s submissions):
“[8] The evidence, if it were accepted, could not rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding for the purpose of s 55(1) of the Evidence Act 1995 (Cth).
[9] The alleged event took place after the dismissal of the proceedings for non-appearance on 18 February 2015. Although it is not clear from the Applicant’s submissions, it seems that he is claiming that the evidence supports his claim that earlier incidents of intimidation took place which justified his non appearance. An event occurring after the non-appearance, as a matter of logic, cannot rationally affect the assessment of the probability of whether earlier unrelated incidents occurred.
[10] To the extent that the Applicant relies on the tendency rule under s 97(1) of the Evidence Act to admit the evidence to prove that certain members of the NSW Police Force have a character, reputation or conduct of engaging in similar conduct, it has no application for the reasons set out below.
[11] First, s 97(1) applies to specified persons: see Combined Insurance Co of America v Trifunovski (No 4) [2011] FCA 271 at [9] - [10]. In the present case, the Applicant has not identified the person alleged to have the tendency. The section does not apply to unidentified members of the NSW Police Force.
[12] Second, the proposed evidence does not show that a person within the NSW Police Force has a “tendency” to “act in a particular way”. To demonstrate that such a tendency exists, the Applicant must seek to draw inferences from similar conduct in a similar situation that a person acts in a particular way. In the present case, the Applicant’s evidence of incidents said to constitute intimidation do not involve similar conduct in similar situations. The Applicant has not shown that there is a discernible similarity in an alleged conduct to support an inference that there is a tendency for unidentified members of the NSW Police Force to act in a particular way.
[13] Third, the proposed evidence does not have any significant probative value (as defined in the Dictionary to the Evidence Act). For the same reasons as the Respondent’s objection on the basis of relevance, it has not been shown that the proposed evidence could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding which could be influential in the Court’s task of fact finding: see IMM v The Queen [2016] HCA 14 at [46].”
In relation to the August 2012 incident, I rely on my findings as set out in Kirunda (No 1) and, in particular, the lack of causal nexus to the Racial Discrimination Act 1975 (Cth). As is seen from Kirunda (No 1), the question of the merits of the applicant’s substantive case in his originating application was an element in the Court’s consideration. The reasons advanced by the respondent now (as reproduced above), and which I also accept, provide the basis to find that the proposed evidence is not relevant to the applicant’s substantive claims in his originating application in that the matters there were not pleaded in the applicant’s Points of Claim and are not capable of affecting the probably of the existence of a fact in issue in the relevant proceedings.
It is trite to say that the discretion to grant the leave the applicant seeks must be exercised judicially and take into account the interests of the administration of justice.
As was made clear in Kirunda (No 1) the applicant has not prosecuted his original application with diligence. His explanations for this were not accepted (see Kirunda (No 1) at [31] – [117] and [126] – [140]). His explanation for not attending Court on 18 February 2015 in circumstances where he had reasonable notice of the Court event and his delay in seeking an adjournment of the Court event were matters considered in Kirunda (No 1). The applicant did not provide a satisfactory explanation for either of these.
Further, even after dismissal of his substantive application, the applicant delayed seeking to reopen his case for some 6-7 months after the hearing date in February 2015, and from when he had notice of the order dismissing his application. The applicant’s current attempt to further reopen his case has the same characteristics.
The central reasons for refusing the leave the applicant seeks are set out above. However, it is also relevant to note that it is not in the interests of the administration of justice to endorse the applicant’s late attempt to further delay the final disposition of this matter.
In Kirunda (No 1), I found that the applicant had formed a belief that the NSW Police had engaged in certain conduct towards him by which he had become aggrieved. He pursued two options to redress that grievance. One, the complaint to the Australian Human Rights Commission, and the second was to institute Workers Compensation claims in the State Courts.
As found in Kirunda (No 1), the applicant since that time has pursued a course of seeking to give priority to the Workers Compensation claim, and to delay these proceedings pending resolution of that claim. I am of the view that the applicant’s latest attempt to file further evidence is consistent with the election that he has made.
I will make an order refusing leave to file the latest Application in a Case.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 31 August 2016
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