Maghiar v Western Australia - [2002] FCA 262

FEDERAL COURT OF AUSTRALIA
Maghiar v State of Western Australia [2002] FCA 262
HUMAN RIGHTS - discrimination - discrimination on grounds of race and disability - alleged mistreatment by police on three occasions in relation to arrests - no case submission - evidence taken at its highest does not involve allegation of nexus between mistreatment and race or disability - essential element of case missing - no case submission correctly upheld.
Disability Discrimination Act 1992 (Cth)
Racial Discrimination Act 1975 s 9
Human Rights and Equal Opportunity Commission Act s 46PH(1)(c) and s 46PH(1)(f)
Travers v State of New South Wales [2000] FCA 1565
Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573
ACCC v Amcor Printing Papers Group Limited (2000) 169 ALR 344
J Corp v Australian Builders Labourers Federated Union of Workers (Western Australian Branch) (No 2) (1992) 38 FCR 458
Rasomen Pty Ltd v The Shell Company of Australia Ltd (1996) 71 FCR 540
Compaq Computer Australia Pty Ltd v Merry (1998) 157 ALR 1
TNT v Brooks (1979) 23 ALR 345
GEORGE MAGHIAR v STATE OF WESTERN AUSTRALIA
W492 OF 2001
FRENCH J
15 MARCH 2002
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRLIA DISTRICT REGISTRY

W492 OF 2001

On appeal from the decision of Raphael FM in the Federal Magistrates' Court

BETWEEN:

GEORGE MAGHIAR
APPELLANT

AND:

STATE OF WESTERN AUSTRALIA
RESPONDENT

JUDGE:

FRENCH J

DATE OF ORDER:

15 MARCH 2002

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.        The appeal be dismissed.
2.        The appellant pay the respondent's costs of the appeal.
Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRLIA DISTRICT REGISTRY
W492 OF 2001
On appeal from the decision of Raphael FM in the Federal Magistrates' Court

BETWEEN:

GEORGE MAGHIAR
APPELLANT

AND:

STATE OF WESTERN AUSTRALIA
RESPONDENT

JUDGE:

FRENCH J

DATE:

15 MARCH 2002

PLACE:

PERTH

REASONS FOR JUDGMENT
Introduction

George Maghiar comes from Romania and suffers a number of medical conditions. He complains that members of the Western Australia Police Force have mistreated him on a number of occasions in a way which he says amounts to unlawful discrimination on account of his ethnicity and his disability. His complaint has been rejected by the Human Rights and Equal Opportunity Commission ("the Commission") and dismissed by the Federal Magistrates' Court. He now appeals to this Court. The critical question on the appeal is whether his evidence, if accepted, would disclose a case of unlawful discrimination.
History of Proceedings
On 6 July 2000, George Maghiar made a complaint to the Commission against the Western Australian Police Force in which he alleged discrimination contrary to the Disability Discrimination Act 1992 (Cth) and the Racial Discrimination Act 1975. On 22 March 2001, the President of the Commission decided to terminate the complaint on the basis that it was lacking in substance and had already adequately been dealt with by another statutory authority. The termination decision was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] FCA 262
Decision Date: 15 MARCH 2002

CaseChat Overview and Summary

The case of Maghiar v Western Australia involved Mr Maghiar, who was challenging the decision of the District Court that his case against the Western Australian Police Service should be dismissed. Mr Maghiar was asserting that he had been racially discriminated against by the police, and that this discrimination had resulted in him being subjected to acts of harassment and mistreatment. The Federal Magistrates Court was required to determine whether Mr Maghiar had established a prima facie case of racial discrimination under the Racial Discrimination Act 1975.

The court considered whether the evidence provided by Mr Maghiar and his witnesses was sufficient to establish a connection between the alleged discriminatory conduct and his racial characteristics. The Magistrate found that the evidence presented could only give rise to conjecture about the existence of such a connection. The Magistrate also noted that Mr Maghiar's current poor health could not be directly linked to the incidents he had described. The court concluded that there was no evidence to support a finding that Mr Maghiar's rights under the Racial Discrimination Act had been infringed.

The court's decision was based on its assessment of the evidence presented and the legal principles governing no case submissions in civil proceedings. The court found that the evidence offered by Mr Maghiar was insufficient to establish a causal link between the alleged conduct and his racial characteristics. As a result, the court dismissed Mr Maghiar's claim and ordered that he pay the costs of the appeal.

The orders of the court were that the appeal be dismissed and that the appellant pay the respondent's costs of the appeal. The court's decision highlights the importance of establishing a clear link between the alleged discriminatory conduct and the individual's racial characteristics in cases involving racial discrimination.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the respondent's costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

FRENCH J

Three unsworn witness statements were received in evidence, evidently by consent. One by Elizabeth Maghiar, his wife, referred to his arrest on 2 July 1999 and was broadly confirmatory of his account of his arrest on that occasion. She said however that he was given no time to put his shoes on. She said also he was not allowed to take with him his medication for back and heart problems. A statement by his son, Sorin Maghiar, referred to the visit to the Traffic Camera Section on 5 November 1999 and again was broadly confirmatory of the account given by Mr Maghiar. The third statement by George Nistor confirmed that Mr Maghiar had been following him and that he was going under the speed limit and didn't get flashed and could not see why Mr Maghiar had been flashed by the multi nova camera. The Magistrate's Reasons for Decision In his reasons for decision on the State of Western Australia's no case submission, Raphael FM identified the three incidents of discrimination which were asserted by Mr Maghiar. He accepted that Mr Maghiar genuinely felt that he had been wronged by the Western Australian Police Service. Mr Maghiar could not understand why no investigative authority had agreed with him. He feared a cover up by police. Raphael FM noted that Mr Maghiar blames his current poor health on these incidents. Mr Maghiar said that he had come to the court not because he was ethnic but to see if he had rights in Australia. He claimed that if he were born in Australia his problems would have been fixed. Raphael FM referred to authority in relation to no case submissions in civil proceedings. He concluded that if the evidence offered by Mr Maghiar could do no more than give rise to conjecture about the nexus between the alleged conduct and his accepted disability or racial characteristics he could not find for him. He said in conclusion:"I have heard the evidence and putting it at its highest find no such nexus. It is proper in those circumstances to dismiss the claim." The Statutory Scheme Section 9(1) of the Racial Discrimination Act 1975 provides: "9(1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life....9(2) A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention." The Convention referred to is the International Convention on the Elimination of all Forms of Racial Discrimination. Article 5 of the Convention involves the undertaking by the States Parties to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction, as to race, colour or national or ethnic origin to equality before the law, notably in the enjoyment of the rights which are then set out in that Article. These include: "(a)The right to equal treatment before the tribunals and all other organs administering justice; (b)The right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual, group or institution; ...(d) Other civil rights, in particular: (i)The right to freedom of movement and residence within the border of the State;"

Ratio Decidendi

Legal Principle Established

Established by: FRENCH J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRLIA DISTRICT REGISTRY	W492 OF 2001

BETWEEN:	GEORGE MAGHIAR APPELLANT
AND:	STATE OF WESTERN AUSTRALIA RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	15 MARCH 2002
WHERE MADE:	PERTH

JUDGE:	FRENCH J
DATE:	15 MARCH 2002
PLACE:	PERTH