Nicholson v State of Victoria - [2005] FMCA 258

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NICHOLSON v STATE OF VICTORIA

[2005] FMCA 258

HUMAN RIGHTS – Racial discrimination – whether arguable case – summary dismissal.

Human Rights and Equal Opportunity Commission Act 1986, s.46PH(2), 46PO(3)
Racial Discrimination Act 1975
Mental Health Act 1986 (Vic)

Re Shaw & Anor (2001) 4 VR 103

Applicant:

DEMETRE NICHOLSON

Respondent:

STATE OF VICTORIA

File Number:

MLG1161 of 2003

Judgment of:

McInnis FM

Hearing date:

11 January 2005

Delivered at:

Melbourne

Delivered on:

10 March 2005

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Ms R Doyle

Solicitors for the Respondent:

Victorian Government Solicitor

ORDERS

The Application be dismissed.
The Applicant shall pay the Respondent’s costs.
Liberty to apply is granted to the parties in relation to any matters arising out of these orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1161 of 2003

DEMETRE NICHOLSON

Applicant

And

STATE OF VICTORIA

Respondent

REASONS FOR JUDGMENT

In this matter Demetre Nicholson (the Applicant) commenced proceedings by an application filed on 12 December 2004 wherein a claim was made arising out of the Racial Discrimination Act 1975 (the RDA). The complaint had been the subject of a notice of termination issued by the Human Rights and Equal Opportunity Commission (HREOC) pursuant to s.46PH(2) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (the HREOCA). Although the original complaint was against the Victoria Police Service who were then in turn named as a Respondent in the application, leave was granted to the Applicant to amend the name of the Respondent by deleting “Victoria Police Service” and inserting “State of Victoria”.
A summary of the complaint was set out in the document being Attachment A which is the letter to the Applicant from HREOCA dated 23 September 2003. In the Summary of Complaint HREOCA states the following:
“You advised that you are involved in an ongoing dispute between your family and that of a neighbour. You state that the Police have attended your residence on numerous occasions as a result of this dispute. You claim that you have taken out AVO’s against your neighbour and that your neighbour has also taken out AVO’s against you.
You allege that you received less favourable treatment on the basis of your race by the Police. You claim that the comments ‘why don’t you go back to your own country’, ‘Is Greece a nice place to live ... What are you doing here … You go back to Greece and work there’ were made by Police Officers on the 28 August, 2000. You allege that you requested assistance from the Police after being assaulted and that they did not take your complaint seriously.
You state that the comments ‘Thailand is a nice country…why don’t you go there and live…why are you staying in Australia’ were made to your wife by an unidentified female police officer and you provided statements and documentation detailing the ongoing dispute with his neighbour and the Police’s involvement including details of allegedly being unlawfully detained and the Police taking between 1 and 2 hours to arrive after you have called ‘000’. You state that you made a complaint to the Victorian Ombudsman’s Office against the Police on 5 June, 2000 which was found to be unsubstantiated.”
HREOCA categorised the complaint as being one accepted under ss.9, 13, 18A, 18C and 18E of the RDA which provide as follows:-
“9.Racial discrimination to be unlawful
(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.
(1A)   Where:
(a)     a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and
(b)     the other person does not or cannot comply with the term, condition or requirement; and
(c)     the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life;
the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person's race, colour, descent or national or ethnic origin.
(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.
(3) This section does not apply in respect of the employment, or an application for the employment, of a person on a ship or aircraft (not being an Australian ship or aircraft) if that person was engaged, or applied, for that employment outside Australia.
(4) The succeeding provisions of this Part do not limit the generality of this section.
13.Provision of goods and services
It is unlawful for a person who supplies goods or services to the public or to any section of the public:
(a) to refuse or fail on demand to supply those goods or services to another person; or
(b) to refuse or fail on demand to supply those goods or services to another person except on less favourable terms or conditions than those upon or subject to which he or she would otherwise supply those goods or services;
by reason of the race, colour or national or ethnic origin of that other person or of any relative or associate of that other person.
18A.Vicarious liability
(1) Subject to subsection (2), if:
(a) an employee or agent of a person does an act in connection with his or her duties as an employee or agent; and
(b) the act would be unlawful under this Part if it were done by that person;
this Act applies in relation to that person as if that person had also done the act.
(2) Subsection (1) does not apply to an act done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing the act.
18C.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.
(2) For the purposes of subsection (1), an act is taken not to be done in private if it:
(a) causes words, sounds, images or writing to be communicated to the public; or
(b) is done in a public place; or
(c) is done in the sight or hearing of people who are in a public place.
(3) In this section:
public place includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.

18E.Vicarious liability
(1) Subject to subsection (2), if:
(a) an employee or agent of a person does an act in connection with his or her duties as an employee or agent; and
(b) the act would be unlawful under this Part if it were done by the person;

this Act applies in relation to the person as if the person had also done the act.
(2) Subsection (1) does not apply to an act done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing the act.”

The complaint was terminated on the basis that there was no reasonable prospect of it being settled by conciliation. The original complaint which is referred to as “Attachment B” according to the Applicant contained a number of documents which I shall set out as follows:-
·A type written letter unsigned by the Applicant with a date stamp “Received 1 May 2001 Equal Opportunity Commission”. That letter has at the start the words “In relation to letter dated 23/2/2001”
·A coversheet hand printed in upper case with a date stamp “Received 28 Feb 2001 Equal Opportunity Commission”
·A type written letter in uppercase dated 23-02-2001 with a date stamp “Received 28 Feb 2001 Equal Opportunity Commission”
·A document entitled “Statement by Demetre James Nicholson” with a date stamp “Received 31 Jan 2001”. The document is unsigned though dated 25 February 1999.
The last of those documents raises an issue concerning events which allegedly occurred on 23 February 1999. It relates to the intervention orders between the Applicant and his neighbour. On 24 February 1999 the Applicant claims in that document that he contacted the police station at 9.45am and left a message for a police officer, again apparently in relation to the intervention order against the Applicant’s neighbours. He had claimed to have received a call back from the police seeking to arrange a meeting to speak to him in relation to the intervention order and that on 11.15 am that day three police including a sergeant attended his premises and then personnel from what is described as a Crisis Assessment Team (“CAT Team”) entered the Applicant’s house and asked him a number of questions. Apparently it is claimed a doctor spoke to him and he was ultimately escorted to the Sunshine Psychiatric Hospital. Apparently he was assessed, detained overnight in hospital and then after further examination and consultation with his local general practitioner was allegedly told there was nothing wrong with him and he was free to leave.
It is noted that in the Summary of Complaint HREOCA does not refer to the incident in the statement dated 25 February 1999 which had allegedly occurred in February 1999. In the Applicant’s affidavit sworn 6 November 2003 and filed in this application the Applicant does refer to the February 1999 events and other incidents which occurred in or about 1998.
When the matter came before the Court on 12 December 2003 apart from granting leave to the Applicant to amend the name of the Respondent the Court also ordered the Applicant to file and serve Points of Claim. At that stage the application had simply asked for an apology from the Respondent and compensation and otherwise sought to be excused from stating with any further precision orders sought though sought leave to file and serve further particulars. It did not otherwise refer to any specific sections of the RDA claimed to have been infringed. On 12 December 2003 the matter was listed for trial on 5 May 2004 with procedural orders being made in relation to the filing and serving of affidavits in addition to the Points of Claim and Points of Defence.
The Applicant filed a document purporting to be an affidavit sworn on 20 February 2004 which had numerous attachments. The Applicant was then unrepresented. A great deal of the material related to the complaint by the Applicant to the Ombudsman.
By Notice of Appearance filed on 4 March 2004 De Marchi & Associates claimed to represent the Applicant. The matter was then listed for further directions on 9 March 2004 and an extension of time granted in relation to the procedural orders made by the Court on

12 December 2003. The trial date of 5 May 2004 was vacated and the matter then listed for hearing on 3 November 2004.
Points of Claim were forwarded for and on behalf of the Applicant by his then solicitors by facsimile transmission dated 8 April 2004. Reference was made to the events in February 1999 though particulars were not given of the specific provisions of the RDA relied upon by the Applicant. An order was sought that HREOCA reinvestigate the Applicant’s complaint and otherwise sought compensation.
When the matter came before the Court on 14 May 2004 the Applicant was then granted leave to file a document entitled “Applicant’s Claim”. That document prepared by the solicitors for the Applicant set out the background and chronology of events including the 1998 and 1999 events. Reference is made to what was described as “systematic discriminatory treatment, racially motivated and perpetuated by various officers at Melton Police Station where he (the Applicant) has been badly treated due to his racial and cultural background and cultural, social and language difficulties”. Points of Claim refer to the systematic discrimination as showing “complete disregard of the Racial Discrimination Act 1975”. The Points of Claim state that “The Applicant’s claim is grounded in s.46PO of the Human Rights and Equal Opportunity Commission 1986 (the Act) (sic).” Again, no reference is made to specific provisions of the RDA. However, the document entitled “Applicant’s Claim” was ordered to stand as the Applicant’s “Amended Points of Claim”. The Respondent was then ordered to file and serve any application for summary dismissal together with an Outline of Submissions. The summary dismissal application was fixed for hearing on 4 August 2004. The date for mediation was extended.
The Respondent filed the “Respondent’s Points of Defence” on 1 June 2004. It admitted that on 24 February 1999 the Melbourne Police called the CAT Team to assess the Applicant but otherwise denied the allegations made. It refers to the neighbourhood dispute and mediations being conducted between the police and the respective party. Specific allegations which had been set out in the Applicant’s claim were otherwise denied.
Further consent orders were made on 10 September 2004 in relation to the filing and serving of affidavit material. Although the matter was fixed for hearing on 3 November 2004 the Court arranged a further directions hearing on 27 October 2004 as by that time the Applicant became unrepresented. Leave was granted to the Applicant to provide further affidavits and the Respondent likewise affidavits in reply and a further order was made that any applications to be filed by the Respondent should be filed by 29 October 2004. Leave granted to the Applicant on that day to file and serve any further affidavits by 4 pm on 27 October 2004 was noted to be made “without prejudice to the right of the Respondent to make application for dismissal of this application on the grounds of non-compliance with Court orders”.
On 27 October 2004 the solicitors formerly acting for the Applicant filed a Notice of Practitioner Ceasing to Act.
It will be noted from that detailed chronology of events and background that this Application has had a lengthy history both before HREOC and before this Court. To a large extent the delay occurred primarily as a result of the failure of the Applicant to particularise the claim, the inadequacy of material ultimately filed for and on behalf of the Applicant and the fact that the Applicant close to the hearing date found himself unrepresented and that the matter had failed to resolve at mediation.
By an application filed on 29 October 2004 the Respondent sought summary dismissal of the Applicant’s claim pursuant to Rule 13.03 of the Federal Magistrates Court Rules 2001 (the Rules) for default by the Applicant in complying with the orders made by the Court on 10 September 2004 and 27 October 2004 and in the alternative dismissal pursuant to Rule 13.10 of the Rules on the basis that no reasonable cause of action was disclosed in the claim, the claim was frivolous or vexatious or that proceedings in the claim were an abuse of process. Further orders were sought striking out parts of the Applicant’s claim or that the trial proceed on 3 November 2004 with the Applicant limited to the affidavits filed and served by him on 28 October 2004 and the Applicant not be permitted to supplement his evidence with further material.
When the matter came before the Court on 3 November 2004 the Applicant appeared on his own behalf and the Respondent was represented by Counsel. I decided to adjourn the substantive application and the Application for summary dismissal despite concerns the Court expressed in relation to non-compliance with orders by the Applicant, the late filing of a Notice of Ceasing to Act by the Applicant’s solicitor and the obvious expense and cost incurred by the Respondent by permitting a further adjournment. It was decided to hear the application for summary dismissal on 11 January 2005 and the substantive hearing otherwise fixed for hearing on 20 April 2005. The Applicant throughout has sought to simply file certain documents including a document entitled “Submission of the Applicant” filed

24 November 2004, a document entitled “For the Federal Magistrates Court Claim against Melton Police and State of Victoria” also filed

24 November 2004 (It is noted a further copy of the Applicant’s Claim was also filed on 24 November 2004) and a letter dated 10 January 2005 from the Applicant to the Court was sought to be relied upon by the Applicant.
The summary dismissal application was heard on 11 January 2005 and the Respondent in support of the application for summary dismissal relied upon an Outline of Submissions and otherwise made oral submissions to the Court.
A number of affidavits have been relied upon by the parties. The Applicant has relied upon an affidavit sworn by him on 28 October 2004 and other material provided which was unsworn and simply filed without leave including unsworn affidavits from the Applicant’s step-daughter, his thirteen year old son and his wife. The Respondent has relied upon affidavits sworn by David Joseph Janson on 29 October 2004 and 13 December 2004. Mr Janson is a solicitor employed by the Victorian Government Solicitor, the solicitor for the Respondent and provided essentially a chronology of the proceedings and attached certain relevant documents to which reference will be made presently. Affidavits had been served from police officers who were the subject of complaint and were sworn 29 October 2004. Those affidavits essentially support the denials in the Defence.
It should be noted that the Applicant has pending proceedings in the County Court of Victoria where De Marchi & Associates, as I understand it, continue to be the solicitors on record although the Applicant indicated that the solicitors advised that they intended to withdraw from those proceedings. The proceedings were commenced by a Writ dated 6 September 2004 wherein the Applicant is the Plaintiff and the Defendants include two police officers and the State of Victoria. The Statement of Claim refers to the events that occurred in February 1999 when the CAT Team attended the residence of the Applicant and appears to claim as against the Respondent in this application damages for false imprisonment and/or malicious prosecution.
The Respondent referred in detail to the chronology of events and what might be described as a lack of particulars of the claim and/or failure of the Applicant to refer to specific provisions in the RDA relied upon. It was noted that proceedings arising out of the February 1999 incident involving the CAT Team were currently the subject of pending proceedings in the County Court which can be determined by that Court and that it provides an appropriate forum for those issues to be resolved.
On the current affidavit material it was clear, according to the Respondent, that there is no reasonable cause of action and/or the claim is frivolous or vexatious and/or an abuse of process. Submissions were made that this Court can only deal with the complaint which is the same as or in substance the same as the unlawful discrimination that was the subject of the terminated complaint (see s.46PO(3) of the HREOCA). I am prepared to accept however for the purpose of the summary dismissal application that the Applicant had included reference to the CAT Team incident even though it was not specifically referred to by HREOC in the termination notice and Attachment A.

I have some reservations about whether the document formed part of Attachment B though during the course of the hearing it became evident that the Respondent at least had obtained a copy of that document which appears to have been the subject of negotiations and discussions between the Respondent and the Applicant. Albeit with some hesitation I am prepared to accept that the CAT Team allegation was part of the terminated complaint.

However, that leaves the more substantive grounds relied upon for summary dismissal. It is argued that the allegation arising out of the CAT Team incident does not give rise to any claim based on race, descent or ethnic origin. Accordingly that complaint should be dismissed.
It is further argued in relation to the CAT Team allegations that this is an abuse of process to pursue the matters in this Court when proceedings are commenced arising out of the same facts in the County Court. In any event it was submitted that there is an immunity from suit in respect of anything done in good faith under the Mental Health Act 1986 (Vic) (the MHA).
In relation to the CAT Team allegations although some attempt was made by the Applicant to infer that these allegations were related to the 1998 claims, I am satisfied in the circumstances that there is no basis upon which these claims could be properly considered to be part of a claim based upon any provision of the RDA. In the alternative I am further satisfied that given there are pending proceedings in the County Court that that Court would be the appropriate forum to resolve those issues and it would be an abuse of process to permit the claim in relation to the CAT Team incident to proceed in this Court. Accordingly that part of the claim independent of any other conclusion I reach in this matter should be summarily dismissed.
In considering whether to summarily dismiss a claim I am mindful of the relevant authorities. The Court is conscious of the fact that summary dismissal is a matter which should be approached with caution and used sparingly. In particular I note the judgment of Barwick CJ in General Steel Industries at p.129 as follows:-
“It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense". (at p129) 9. At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or "so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument"; "so to speak apparent at a glance". (at p129) 10.
… Dixon J. (as he then was) sums up a number of authorities in Dey v. Victorian Railways Commissioners (1949) 78 CLR 62 VOL CXII-9 where he says (1949) 78 CLR, at p 91 : "A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process." Although I can agree with Latham C.J. in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings (1949) 78 CLR, at p 84, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.”
Applying the principles from that decision I am satisfied as indicated earlier (see paragraph 25) that in relation to the CAT Team allegations it is appropriate that they should be dismissed. It is not necessary for me to determine whether there is an immunity under the MHA though I do note in passing that the immunity only applies against any person for anything “done in good faith”. Presumably there may be circumstances where appropriate reference has been made to relevant provisions of human rights legislation and where claims may be established of unlawful discrimination and that may in itself provide a basis for avoiding the immunity on the ground that the conduct was not undertaken in good faith.
In relation to the remaining complaints it is submitted by the Respondent that the Court should have regard to the affidavit evidence and in particular the affidavit of David Janson sworn 29 October 2004 (the Janson affidavit). In that affidavit reference is made to lengthy complaints made by the Applicant and his wife and in particular a formal statement made by the Applicant on 17 June 1999 (Exhibit DJJ1 to the Janson affidavit). In that document it is claimed that the complaints relate to the handling of the neighbourhood dispute and what might properly be described as the “body language” or “attitude” of certain police officers. It is argued that a proper reading of that contemporaneous complaint contains only one reference to any behaviour which might be regarded as coming close to unlawful discrimination. The reference is found on page 2 of that document where the following sentence appears:-
“My complaint about Sergeant John Foster is his attitude, the way he looks at me, the fact that he doesn’t listen to me and I think he could be racial towards me but I can’t be sure. Sergeant John Foster aggravates me.”
It is argued that on the basis of that contemporaneous document the Court is entitled to infer the allegation that any unlawful discrimination based on the RDA should be found to be of recent invention. Affidavit material has been provided by key witnesses for the Respondent denying the allegations in any event. Allegations have been made in similar terms about six police officers and it was submitted that in the circumstances the Court in a summary dismissal application is entitled to have regard to the allegations being made without detail, without context, without corroboration and notes they are virtually identical against each police officer and no complaint was made at the time that a lengthy formal complaint was lodged in 1999. It was argued that there was no material upon which the Court could find that any of the police committed an unlawful act within the meaning of the provisions of the RDA and specifically any claim under s.18C which provides that it is unlawful for a person to do an act that is reasonably likely in all the circumstances to offend, insult, humiliate or intimidate another person or group of people and where the act is done because of the race, colour or national or ethnic origin of the other person.

Reasoning

In my view the chronology of events combined with the lack of a contemporaneous and specific complaint of unlawful discrimination in 1999 lead me to conclude that this claim is one which cannot succeed and to allow it to succeed would involve what has often been described as useless expense. There is no attempt made to specifically address provisions of the RDA despite the fact that during at least part of the Court process the Applicant was represented. The allegations are vague and imprecise and as I have indicated were not made at or about the time that a very detailed complaint was lodged and dealt with by the Victoria Police.
I am very conscious of the requirements of the Court in considering summary dismissal to permit parties to pursue a claim even if it may appear that the claim from an evidentiary point of view would be extremely difficult. This matter however goes beyond simply being a very difficult claim to one where the vague uncertain allegations of a general nature have been raised at a late stage and where there has been a failure to raise on the material any specific breach of any section of the RDA. I was referred to and note the decision of the Court of Appeal of the Supreme Court of Victoria in Re Shaw & Anor (2001)

4 VR 103 at 112 where the Court states the following:-
“There are several reasons why this application must fail. One or two of the defects are, or may be, capable of being cured, but we should make it clear that in our view there is no reason for supposing that the papers ever would or ever could be put into a state which would warrant the summoning of a grand jury. There is a wide range of deficiencies. Most of the affidavits fail to state the deponent’s place of residence. The court has power to dispense with this requirement, and a general power to dispense with irregularities in affidavits, but we would exercise it in this case, taking as we do the view that this is pre-eminently the kind of application in which the applicant should be properly identified. In addition, the affidavits are objectionable by reason of the way in which they put before the court a hotch-potch of documents and assertions, inadequately identified and sourced. No-one would wish to see an applicant in person suffer as a result of inability to assemble and verify material as a lawyer would, but benevolent indulgence cannot be stretched to the point of accepting what has been put forward in this case. Quite apart from questions of proper form and admissibility, even applicants in person cannot expect a court to wade through material of the present kind in the hope that there may be found ‘a grain or two of truth among the chaff’. What, for example, are we expected to make of the vicissitudes of Mr Fyffe, said to be currently lodged in Port Phillip prison for threatening to kill, or those which have beset Ms McKinnon in her attempts to defeat her prosecution for a traffic offence?”
In the present case in considering the voluminous material provided by the Applicant I am not satisfied that he has identified appropriate provisions of the relevant legislation which are claimed to be breached and/or in any event from an evidentiary point of view as indicated earlier, I am satisfied that the complaint now sought to be pursued of unlawful discrimination is one of recent invention. In all the circumstances I am satisfied that in the exercise of the Court’s discretion it is appropriate that the application be summarily dismissed as frivolous and vexatious and an abuse of process. I am conscious of the fact that this deprives the Applicant of the opportunity for a trial of the case before this Court though of course leaves open the pending County Court proceedings which may or may not be subject to the immunity under the MHA. However, I am satisfied that this is case where the claim is futile and it is appropriate for the Court in the interests of all parties to make the decision that the Application should be summarily dismissed.
I should add that in this case the Applicant has had numerous opportunities demonstrated in the chronology of events to provide further and better particulars of the claim and to identify precise sections of the relevant legislation relied upon. That opportunity was given to him whilst represented and in my view the basis of the claim has not been advanced in sufficient detail that would persuade me that summary dismissal is not appropriate.
For those reasons it follows the application should be dismissed with costs.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 10 March 2005