Paramasivam v Grant & Anor - [2001] FCA 758

FEDERAL COURT OF AUSTRALIA
Paramasivam v Tay [2001] FCA 758
HUMAN RIGHTS
GAJA LAKSHMI PARAMASIVAN v PROFESSOR ALICE TAY
N158 of 2001
MADGWICK J
25 JUNE 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N158 of 2001

BETWEEN:

GAJA LAKSHMI PARAMASIVAN
APPLICANT

AND:

PROFESSOR ALICE TAY
RESPONDENT

JUDGE:

MADGWICK

DATE OF ORDER:

25 JUNE 2001

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1. The application be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N158 of 2001

BETWEEN:

GAJA LAKSHMI PARAMASIVAN
APPLICANT

AND:

PROFESSOR ALICE TAY
RESPONDENT

JUDGE:

MADGWICK

DATE:

25 JUNE 2001

PLACE:

SYDNEY

REASONS FOR JUDGMENT
HIS HONOUR:

This is an application brought pursuant to s 46PO of the Human Rights & Equal Opportunity Commission Act 1986 (Cth) (“HREOCA”) following the termination by the respondent, who is the President of the Human Rights & Equal Rights Commission (HREOC), of a complaint made against the respondent under the HREOCA by the applicant on 1 February 2001. The respondent had offered to terminate the applicant’s complaint against her, so as to allow her to come directly to this Court, if the applicant wished, pursuant to s 46PE which makes specific provision for complaints against the President or other Commissioners of HREOC or against HREOC itself. The applicant declined that offer.
By her application in this Court, the applicant claims that the respondent discriminated against her in the following way:
“My expressions of corporate wisdom were not treated on the same basis as those [of] others in positions of power.”
The applicant sought as remedies an apology from the respondent and that the respondent should:
“Provide service based on the substance of my communications. If my [substance] is not suitable - explain why – objectively as per the law”.
The applicant alleges that the action she is complaining of is discrimination pursuant to s 13(b) of the Racial Discrimination Act 1975 (“RDA”) and she refers also to “Articles 5(a), 5(c), 5(e)(i) + 5(e)(v)” of the International Convention on the Elimination of All Forms of Racial Discrimination (“the Convention”) to which the RDA is intended to give effect.
The legislation
Section 13(b) of the RDA is in the following terms:
“It is unlawful for a person who supplies goods or services to the public or to any section of the public:
…
(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 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.”
While it is conceded that the respondent supplies services within the meaning of s 13, Mr Markus of the Australian Government Solicitor, who appears for the respondent…

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.

Continue reading Paramasivam v Grant & Anor

Details

AGLC: Paramasivam v Grant & Anor [2001] FCA 758
Case: [2001] FCA 758
Decision Date: 25 JUNE 2001

CaseChat Overview and Summary

The case of Paramasivam v Grant & Anor involves the applicant, Paramasivam, who lodged several complaints with the Human Rights and Equal Opportunity Commission (HREOC) against the respondents, alleging discrimination based on her racial background. The application was brought to the court to determine whether the respondent, Professor Tay, discriminated against Paramasivam on the basis of her Asian origin and Sri Lankan background in handling her complaints. The applicant argued that the respondent’s errors and mishandling of her complaints were due to racial discrimination. The court was required to decide whether the respondent's actions constituted racial discrimination under the relevant legislation.

The court examined the evidence presented and found that there was no basis to infer that the respondent discriminated against the applicant on the basis of her racial background. The court noted that the respondent did not misunderstand the applicant’s complaint and had a clear understanding of the issues raised. The respondent’s handling of the complaints was found to be appropriate, and there was no evidence to suggest that any errors were due to racial discrimination. The applicant argued that different treatment and a lack of explanation could be used to prove discrimination, but the court found that any errors made were due to human fallibility and not racial bias.

The court concluded that the application should be dismissed as there was insufficient evidence to support the applicant's claims of racial discrimination. The court found no inference of racial discrimination in the evidence presented and upheld the respondent’s handling of the complaints.

ORDERS:
1. The application be dismissed.

Orders

Orders of the court

1. The application be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

MADGWICK J

The applicant’s case is that the errors made by Professor Tay were not what one would expect of the President of the HREOC; that she had identified herself to Professor Tay as being of “Asian” origin and as having a Sri Lankan background; and a compelling inference arose from these alleged facts that the respondent’s alleged errors and mishandling of the applicant’s complaints were grounded in the respondent’s discrimination against her on account of that origin and/or background.Conclusions As to the Jureszek complaint, it seems to me that the respondent did not misunderstand the applicant’s complaint. In any case, there is nothing to indicate that the respondent failed to take into account that which the applicant had provided in purported answer to the accounted matters given by Mr West. At least in part, what the applicant had to say in her response to the West version of affairs was misconceived, and it appears to me to have been open to the respondent not to find that the further material the applicant provided was persuasive. In reality, it is clear that the respondent simply formed a view that such evidence in support of her complaint as the applicant had provided was insufficient to show that her complaint was substantial enough to warrant any further involvement by HREOC. So far as I can see, there is not a shred of material to ground any inference that any failing by the respondent, or any aspect of the respondent’s treatment of the applicant, was on account of the applicant’s racial origins. As to the Shier/Linnane complaints, it is perfectly plain that the respondent dealt with what she understood the applicant’s complaint to be and there was a clear and considerable basis for that understanding. No error in dealing with the complaint on the part of the respondent has been shown. If, contrary to my view, it be the case that there was some error, then, again, there is no basis at all for any inference that racial discrimination played a part in the respondent’s handling of the complaint. The applicant argued that equal opportunity practice and experience teach that difficulties of many kinds beset proof of racial discrimination, and that these difficulties may be overcome by showing different treatment of the person putatively discriminated against from that accorded to others and by a lack of explanation for the difference. For the respondent, Mr Markus agreed that discrimination may be proved without direct or “smoking gun” evidence. But he denied that in this case any relevantly different treatment has been shown. If any different treatment has been shown, then there is no lack of explanation for it. The explanation is that office holders of all kinds err from time to time in the discharge of their offices because they are human beings and human beings are fallible. I agree with Mr Markus. The inevitable occasional manifestation of human fallibility does not, even if this was a case of such manifestation, fail to explain entirely any error or misunderstanding that may have occurred here. There is, as I have already indicated, in my view nothing at all, in the evidence presented to the Court, from which any inference of racial discrimination against the respondent might be drawn. Disposition

Ratio Decidendi

Legal Principle Established

Established by: MADGWICK J

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IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N158 of 2001

BETWEEN:	GAJA LAKSHMI PARAMASIVAN APPLICANT
AND:	PROFESSOR ALICE TAY RESPONDENT
JUDGE:	MADGWICK
DATE OF ORDER:	25 JUNE 2001
WHERE MADE:	SYDNEY

JUDGE:	MADGWICK
DATE:	25 JUNE 2001
PLACE:	SYDNEY