Paramasivam v Randwick City Council

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FEDERAL COURT OF AUSTRALIA

Paramasivam v Randwick City Council [2005] FCA 369

PRACTICE and PROCEDURE – proceedings seeking judicial review of a refusal of a Registrar to issue initiating process following direction by a Judge – summary dismissal application – whether judicial review proceedings have any prospect of success – whether arguable case that Registrar took into account irrelevant considerations – Federal Court Rules O 46 r 7A

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5
Human Rights and Equal Opportunity Commission Act 1986 (Cth) ss 46PH, 46PO
Sex Discrimination Act 1984 (Cth) ss 5, 22
Racial Discrimination Act 1975 (Cth) ss 9, 13
Federal Court of Australia Act 1976 (Cth)

Federal Court Rules (Cth) O 20 r 2, O 46 r 7A

High Court Rules 1952 (Cth) O 58 r 4(3)
High Court Rules 2004 (Cth) r 6.07

Seven Network Ltd v News Ltd (No 4) [2005] FCA 244 cited
Legal Aid Commission v Edwards (1982) 42 ALR 154 considered
Letts v Commonwealth (1985) 8 FCR 585 considered
Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 353 followed

GAJA LAKSHMI PARAMASIVAM v RANDWICK CITY COUNCIL and OTHERS
NSD 124 of 2005

SACKVILLE J
SYDNEY
7 APRIL 2005


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 124 of 2005

BETWEEN:

GAJA LAKSHMI PARAMASIVAM
APPLICANT

AND:

RANDWICK CITY COUNCIL
FIRST RESPONDENT

LANCE GRANT
(a Deputy District Registrar of the Federal Court of Australia)
SECOND RESPONDENT

THE HONOURABLE JUSTICE PETER JACOBSON
(a Judge of the Federal Court of Australia)
THIRD RESPONDENT

JUDGE:

SACKVILLE J

DATE OF ORDER:

7 APRIL 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The Deputy District Registrar of the Court (Mr Lance Grant) and the Honourable Justice Peter Jacobson (a Judge of the Federal Court of Australia) be joined as respondents to the proceedings.

2.The applicant’s motion filed 21 March 2005 be otherwise dismissed.

3.The Council’s motion filed 3 March 2005 be dismissed.

4.There be no order as to the costs of the motions referred to in orders 2 and 3.

5.The matter be listed for further directions on 28 April 2005 at 9.30 am.

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

NSD 124 of 2005

BETWEEN:

GAJA LAKSHMI PARAMASIVAM
APPLICANT

AND:

RANDWICK CITY COUNCIL
FIRST RESPONDENT

LANCE GRANT
(a Deputy District Registrar of the Federal Court of Australia)
SECOND RESPONDENTS

THE HONOURABLE JUSTICE PETER JACOBSON
(a Judge of the Federal Court of Australia)
THIRD RESPONDENT

JUDGE:

SACKVILLE J

DATE:

7 APRIL 2005

PLACE:

SYDNEY

REASONS FOR JUDGMENT

THE PROCEEDINGS

  1. In these proceedings (the ‘judicial review proceedings’) the applicant seeks review of what is said to be an administrative decision, namely the decision

    ‘to refuse to accept my complaint against the Randwick City Council’.

    The judicial review application is made pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘ADJR Act

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Details
Case
[2005] FCA 369
Decision Date

CaseChat Overview and Summary

The case of Paramasivam v Randwick City Council involves a dispute where the applicant, a co-owner of a unit in Coogee, contested the Council's handling of objections regarding the use of other units in the building as serviced apartments. The applicant alleged discriminatory practices by the Council, including the omission of her name in correspondence related to a development approval process. This led to a complaint to the Human Rights and Equal Opportunity Commission. The Council filed a motion seeking to dismiss or permanently stay the judicial review application, arguing that no reasonable cause of action was disclosed or that the proceedings were frivolous and vexatious. The applicant subsequently filed a motion to join the Deputy District Registrar and a judge as respondents, and to dismiss the Council's motion. The legal issues before the court were whether the judicial review application should be dismissed or stayed, and whether the applicant's motion to join additional respondents and dismiss the Council's motion should succeed.

The court examined the principles governing summary judgment applications under Federal Court Rules, specifically rule 20 r 2, which allows for the dismissal or stay of proceedings if no reasonable cause of action is disclosed, if the proceedings are frivolous or vexatious, or if they constitute an abuse of process. The court noted that such summary intervention should only occur in very clear cases, as litigants should not be deprived of their right to present genuine controversies. The court further referred to the formulation in Lonrho Plc v Fayed, stating that unless the defendant can demonstrate conclusively that the plaintiff's claim is bound to fail or is objectionable as an abuse of process, the claim must proceed to trial. Given the applicant's allegations and the lack of evidence at this stage to conclusively demonstrate that the claim was bound to fail, the court decided against summarily dismissing the application.

In conclusion, the court dismissed the Council's motion to stay or dismiss the judicial review application and also dismissed the applicant's motion to join additional respondents and dismiss the Council's motion. The court found no basis to stay or dismiss the proceedings at that stage and ordered that the matter be listed for further directions. The court did not make any order as to the costs of the motions.

Orders

Orders of the court

1. The Deputy District Registrar of the Court (Mr Lance Grant) and the Honourable Justice Peter Jacobson (a Judge of the Federal Court of Australia) be joined as respondents to the proceedings.

2. The applicant’s motion filed 21 March 2005 be otherwise dismissed.

3. The Council’s motion filed 3 March 2005 be dismissed.

4. There be no order as to the costs of the motions referred to in orders 2 and 3.

5. The matter be listed for further directions on 28 April 2005 at 9.30 am.

Background

Background to the litigation

The Council has filed a motion seeking, relevantly, an order that the judicial review application be dismissed or permanently stayed pursuant to FCR, O 20 r 2, on the basis that no reasonable cause of action is disclosed or that the proceedings are frivolous and vexatious. At the time the Council filed its motion, it did not have a copy of the memorandum sent by the Registrar to Jacobson J seeking a direction pursuant to O 46 r 7A. The relevant file was made available to the parties at the hearing of the motion and the memorandum was duly tendered by the Council. As Mr Fraser, who appeared for the Council, recognised, the memorandum made it difficult for the Council to contend that the applicant’s case in these judicial review proceedings is hopeless.BACKGROUNDThe Dispute with the Council The applicant is the co-owner (with her husband) of a unit in Coogee. The discrimination proceedings in this Court have their origins in the applicant’s objection to owners of other units in the building using them as serviced apartments. One such unit was owned by a Mr C. The applicant became dissatisfied with the responses of the Council to her objections to the continued use of units as serviced apartments, in particular that owned by Mr C. In a letter to the Council dated 3 September 2004, the applicant complained that two letters from the Council had been addressed only to her husband, even though she was a co-owner of the unit. The applicant complained that the omission of her name was ‘unlawfully discriminatory on the basis of our sexes, with a view to giving me lower status than my husband. This effectively discredits my work [in objecting to development approval being given to the owners of the other units]’.She advised the Council that she intended to complain to the Human Rights and Equal Opportunity Commission (‘HREOC’). The Council wrote to the applicant on 1 October 2004, as follows:‘I refer to your recent email regarding Council’s response to your submission concerning the application to vary the use of dwellings within levels 9 and 10 of the building in which you live. I advise that letter dated 30th August was addressed to your husband alone because Council’s property information system which is used to generate letters to property owners indicated your husband as the sole owner of your dwelling. I apologise for any offence caused, which I can assure you was entirely unintended.’The Complaint to HREOC In the meantime, the applicant lodged a complaint with HREOC. The letter of complaint was not in evidence before me. However, the President of HREOC, in a letter dated 22 November 2004, summarised the applicant’s complaint as follows:‘In your correspondence received by this Commission on 3 September 2004, you state that the [Council] has discriminated against you on the basis of your sex. You claim that you had been involved in an application under s 96 of the Environmental Planning and Assessment Act 1979 [(NSW)] regarding conditions of consent in your apartment block which was before the [Council]. You state that on 19 April 2004 and again on 30 August 2004, the [Council] wrote to your husband in relation to this application process and you claim that addressing correspondence to your husband only when you are a joint owner of the property and not communicating with you directly about your submission is an act of sex discrimination.’

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

SACKVILLE J
Section 5 of the ADJR Act provides as follows:‘(1)A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the decision on any one or more of the following grounds: (a)that a breach of the rules of natural justice occurred in connection with the making of the decision; (b)that procedures that were required by law to be observed in connection with the making of the decision were not observed; …(d)that the decision was not authorized by the enactment in pursuance of which it was purported to be made; (e)that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made; …(h)that there was no evidence or other material to justify the making of the decision; (i)that the decision was otherwise contrary to law. (2)The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to: (a)taking an irrelevant consideration into account in the exercise of a power; (b)failing to take a relevant consideration into account in the exercise of a power; …(e)an exercise of a personal discretionary power at the direction or behest of another person; …(h)an exercise of a power in such a way that the result of the exercise of the power is uncertain; and …(3)The ground specified in paragraph (1)(h) shall not be taken to be made out unless: (a)the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established; or (b)the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.’PRINCIPLES ON A SUMMARY JUDGMENT APPLICATION FCR, O 20 r 2 provides as follows:‘(1)Where in any proceeding it appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding: (a) no reasonable cause of action is disclosed;(b) the proceeding is frivolous or vexatious; or(c) the proceeding is an abuse of the process of the Court; the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding.(2)The Court may receive evidence on the hearing of an application for an order under subrule (1).’ The principles regarding summary dismissal applications are well settled. Recently, in Seven Network Ltd v News Ltd (No 4) [2005] FCA 244, I said (at [14]): ‘It is only a very clear case indeed that will justify the summary intervention of the Court, since litigants are not to be deprived the right to submit genuine controversies for determination: Dey v Victorian Railways Commissioners (1949) 78 CLR 62, at 91-92, per Dixon J. Accordingly, the power to order summary judgment should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, at 129-130, per Barwick CJ; Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87, at 99, per curiam. A Full Court of this Court in Australian Building Industries Pty Ltd v Stramit Corporation Ltd [1997] FCA 1318, approved the formulation of Millett J in Lonrho Plc v Fayed (No 2) [1992] 1 WLR 1 (Ch D), at 5 as follows: “A plaintiff is entitled to pursue a claim in these courts however implausible and however improbable his chances of success. Unless the defendant can demonstrate shortly and conclusively that the plaintiff’s claim is bound to fail or is otherwise objectionable as an abuse of process of the court, it must be allowed to proceed to trial.” ’

Ratio Decidendi

Legal Principle Established

Established by: SACKVILLE J

Full text does not contain this section.