Li v Allen

Case [2022] FedCFamC2G 862

Federal Circuit and Family Court of Australia

(DIVISION 2)

Li v Allen [2022] FedCFamC2G 862  

File number(s): MLG 2410 of 2021
Judgment of: HER HONOUR JUDGE C.E. KIRTON KC
Date of judgment: 20 October 2022
Catchwords: HUMAN RIGHTS – Australian Human Rights Commission Act 1986 (Cth) – application for leave to commence proceeding otherwise barred by operation of s.46PO(3A) of the Australian Human Rights Commission Act 1986 (Cth) – racial discrimination – where complaint to Australian Human Rights Commission terminated without inquiry pursuant to ss.46PF(1)(b) and 46PH(1)(b) of Australian Human Rights Commission Act 1986 (Cth) on the basis it was lodged more than 12 months after the alleged acts, omissions or practices took place and for lacking merit – application not served upon Respondent pursuant to r.6.06 (1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) – application dismissed  
Legislation:

Australian Human Rights Commission Act 1986 (Cth) ss.46PF, 46PH, 46PO.

Racial Discrimination Act 1975 (Cth) s.9.

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r.6.06.
Cases cited: James v WorkPower Inc [2018] FCA 2083
Division: Division 2 General Federal Law
Number of paragraphs: 40
Date of last submission: 14 October 2022
Date of hearing: 14 October 2022 
Place: Melbourne
The Applicant The Applicant appeared in person with the assistance of an Interpreter
The Respondent: There was no appearance by the Respondent

ORDERS

MLG 2410 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

WENRUI LI

Applicant
AND:

BEVERLY ALLEN

Respondent

order made by:

HER HONOUR JUDGE C.E. KIRTON KC

DATE OF ORDER:

20 October 2022

THE COURT ORDERS THAT:

1.Leave to the Applicant to make an application to this Court pursuant to s.46PO(1) of the Australian Human Rights Commission Act 1986 (Cth) is refused.

2.The Application filed by the Applicant on 23 September 2021 is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

HER HONOUR JUDGE C.E. KIRTON KC:

Introduction

  1. This is an application pursuant to s.46PO(3A) of the Australian Human Rights Commission Act 1986 (Cth) (Human RightsCommissionAct) for leave to make an application under s.46PO(1) of the Human Rights Commission Act to the Federal Circuit and Family Court of Australia (Division 2) to allege unlawful discrimination.

  2. The Applicant, Mr Wenrui Li (Applicant) alleges that Ms Beverly Allen (Respondent) failed to pay the Applicant for certain items which he sold to the Respondent, and that the Respondent thereby treated him unfairly because of his Chinese ethnicity. The Applicant alleges…

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Details
AGLC
Li v Allen [2022] FedCFamC2G 862
Case
[2022] FedCFamC2G 862
Decision Date

CaseChat Overview and Summary

In the case of Li v Allen, the Applicant, who had immigrated to Australia from China and was a tutor of Chinese calligraphy, brought an application against the Respondent, his former student, for alleged racial discrimination under the Racial Discrimination Act. The Applicant claimed that he had given the Respondent calligraphy items worth $493, but the Respondent had only paid $110. The Respondent had not been served with the Application and the Applicant sought leave to proceed in the absence of the Respondent. The central legal issues in the case were whether the Applicant's application for leave should proceed in the absence of the Respondent and whether there was any prospect of the claim for racial discrimination having a reasonable chance of success. The Court found that the Applicant had not provided any objective evidence beyond his assertions to support his claims of racial discrimination and that there was no reasonable prospect of success for the claim. Additionally, the Court noted the significant delay in bringing the complaint forward and the Applicant's failure to serve the Respondent with the Application, despite the existence of special measures to facilitate service during the COVID-19 pandemic. Consequently, the Court dismissed the Application and refused the Applicant's application for leave to proceed in the absence of the Respondent.

Orders

Orders of the court

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Background

Background to the litigation

I have determined:(a)That the proceeding should not be further adjourned so that Applicant may personally serve the Respondent with the Application in accordance with r.6.06(1) of the 2021 Rules; (b)The Applicant’s application for leave pursuant to s.46PO(3A) of the Human Rights Commission Act in the absence of the Respondent; and (c)To refuse the application for leave pursuant to s.46PO(3A) of the Human Rights Commission Act and to dismiss the Application.Background The Applicant immigrated to Australia from China in 2015 and became a tutor of Chinese calligraphy at the University of the Third Age in Frankston, Victoria (University of the Third Age) that year. At that time, the Respondent was his student. During the calligraphy course in 2015 the Respondent asked the Applicant to make her four (4) calligraphy stamps with her name inscribed in characters on each stamp. The Applicant agreed to charge a discounted sum of $320 in total for the four (4) stamps, and the Applicant gave the four (4) stamps to the Respondent after making them from stone. The Respondent asked the Applicant to buy a calligraphy brush for her. The Respondent purchased a calligraphy brush for $18 and provided it to the Respondent. The Respondent also requested that the Applicant sell to her another student’s painting valued at $15, which he did. The Applicant also gave to the Respondent a calligraphy book valued at $40 and ink valued at $100. In total, the Applicant alleges that goods valued at $493 were given to the Respondent. The Respondent then stopped attending the Applicant’s classes and did not fully reimburse the Applicant for these items (Calligraphy Items). The Applicant alleges that the Respondent only paid $110 of the $493 outstanding for the Calligraphy Items and that the sum of $383 has remained outstanding since 2015. In 2017, the Applicant met the Respondent who was attending another class at the University of the Third Age. The Respondent told the Applicant that her father had died in 2015, and that this was the reason that she had stopped attending the Applicant’s calligraphy classes. The Applicant alleges that in 2017, the Respondent refused to reimburse him for the balance owing for the Calligraphy Items and tried to negotiate down some of the prices for the Calligraphy Items which had been previously agreed between the Applicant and the Respondent in 2015. Procedural HistoryApplication to the Australian Human Rights Commission On 15 May 2021, the Applicant made an application to the Australian Human Rights Commission (AHRC) alleging unlawful discrimination in breach of the Racial Discrimination Act by the Respondent (Complaint). By a Notice of Termination issued pursuant to s.46PH(2) of the Human Rights Commission Act, dated 19 August 2021 (Notice of Termination), the AHRC terminated the Complaint without inquiry under ss.46PF(1)(b) and 46PH(1)(b) of the Human Rights Commission Act, on the grounds that: the Complaint was lodged more than 12 months after the alleged acts, omissions or practices took place;[1] and that the Complaint lacked merit.[1] The alleged acts took place prior to the amendments to the Australian Human Rights Commission Act 1986 (Cth) in 2017, where the timeframe pursuant to s.46PH(1)(b) was amended to six (6) months.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Attachment A to the Notice of Termination provided the reasons for the decision to issue the Notice of Termination (Reasons for Decision). In summary the Reasons for Decision concluded that after reviewing the material received from the Applicant, the delegate of the President of the AHRC (Delegate) decided that the continuation of an inquiry was unwarranted due to the Complaint being made over five (5) years from the alleged discrimination. The Reasons for Decision stated as follows:On the length of the lodgment delay, you submitted your complaint form to the Commission on 15 May 2021. This is at least five years and five months after the alleged discrimination by Ms Allen in 2015. In my view, this is a very significant delay in bringing the complaint forward.On the potential impact of the lodgment delay, I consider there to be real risks through the passage of time that parties may no longer accurately recall events and/or that potentially useful information to support or refute the allegations may be lost or destroyed. I am concerned that your significant lodgment delay may prejudice the respondent and may adversely impact the Commission’s ability to conduct a fair inquiry.On the reasons for your lodgment delay, you give the reason that Ms Allen disappeared from your class in 2015. In my view, this alone is not a sufficiently compelling reason to outweigh the delay and justify an inquiry into your complaint. It is also unclear why you did not attempt to pursue this matter or contact the Commission closer to the time of your interactions with Ms Allen and Frankston U3A in 2018.[2][2] Affidavit of the Applicant, filed 23 September 2021 (23 September 2021 Affidavit), Notice of Termination, Attachment A. The Delegate also raised concern for the merits of the Complaint as follows:On apparent merit, your complaint is being considered with reference to section 9 of the RDA [Racial Discrimination Act] (link here) which makes it unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race or ethnic origin, that has the purpose or effect of nullifying or impairing the complainant’s equal enjoyment or exercise of any human rights or fundamental freedom in economic, social or cultural life. I appreciate that you feel Ms Allen treated you unfairly. However, in my view, there is little, if any, information beyond your own assertions to support that her alleged conduct was based on your Chinese race or ethnic origin. As such, I have concerns about the apparent merit of your complaint.[3][3] 23 September 2021 Affidavit, Notice of Termination, Attachment A.Application to the Court On 23 September 2021 the Applicant filed the Application and the 23 September 2021 Affidavit. The 23 September 2021 Affidavit was not witnessed and was filed in accordance with the COVID-19 Special Measures (PD-COVID), FCFCOA Practice Direction, 7 September 2021 (COVID-19 Practice Direction). The Application was therefore filed with the Court within 60 days after the issue of the Notice of Termination, as required by s.46PO(2) of the Human Rights Commission Act. Further, the unlawful discrimination alleged in the Application arises from the same (or substantially the same) acts, omissions or practices that were the subject of the Complaint and the Notice of Termination, as required by s.46PO(3) of the Human Rights Commission Act.

Ratio Decidendi

Legal Principle Established

In the course of the proceeding, the Applicant has not made an application for substituted service or to dispense with service altogether. Neither the 23 September 2021 Affidavit nor the 11 November 2021 Affidavit refer to or make any explanation as to why the Respondent has not been served personally in accordance with r.6.06(1) of the 2021 Rules.Consideration I turn first to consider the merits of the Application. This is a complaint to which s.9 of the Racial Discrimination Act applies. In relation to the Applicant’s allegations of racial discrimination made in the Application, the 23 September 2021 Affidavit and the 11 November 2021 Affidavit, these are made on the basis of the Applicant’s assertions and without the support of objective evidence. There is no information in the documents filed beyond the Applicant’s own assertions that supports the Applicant’s claims that the Respondent’s alleged conduct was based upon the Applicant’s Chinese race or ethnic origin. At the Hearing the Applicant was invited to make further submissions as to the merits of the Application. The Applicant availed himself of this opportunity, however the Applicant made no submissions beyond those already contained in the documents filed by the Applicant. It is evident from the documents filed that the Applicant alleges that in 2015 the Applicant and the Respondent agreed to the price of each of the Calligraphy Items. The Applicant now claims that he has been the subject of racial discrimination because the Respondent has allegedly refused to pay the balance of $363 for the Calligraphy Items. It is evident that this is a goods sold and delivered case and the Applicant is dissatisfied that the Respondent has not paid to him the sum of $363 which he believes that he is owed. I am therefore unable to conclude on the basis of the documents filed that there is any prospect of the claim for racial discrimination having any reasonable prospect of success. I turn now to consider the issue of delay. I agree with the matters set out by the Delegate in the Reasons for Decision in relation to the Applicant’s delay. To these reasons I add that the alleged racial discrimination took place in 2015. The Complaint was lodged with the AHRC on 15 May 2021, some five and a half (5 ½) to six (6) years after the alleged racial discrimination. The Application was filed on 23 September 2021 and it has still not been served on the Respondent in accordance with r.6.06(1) of the 2021 Rules, some seven (7) years after the alleged racial discrimination took place in 2015. One of the Applicant’s reasons for the delay is his lack of understanding of the Australian legal process and lack of knowledge about the AHRC. However the Applicant has made many complaints relating to the disputed payment for the Calligraphy Items. The Applicant’s complaints included making complaints to the following:[7](a)The person in charge of the University of the Third Age;(b)The Police Station in Frankston;(c)The Frankston Council;(d)Peninsula Free Legal Assistance;(e)The Victoria Dispute Settlement Centre;(f)The MP for Frankston;(g)The MP for Dunkley; and(h)A Minister of the Victorian Government. [7] Application, Part B, Grounds of Application, [4]; 3 September 2021 Affidavit, Part D, Evidence; 11 November 2021 Affidavit, Part D, Evidence.