Paramasivam v The State of New South Wales (No.2) - [2007] FMCA 1033

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PARAMASIVAM v THE STATE OF NEW SOUTH WALES (No.2)

[2007] FMCA 1033

HUMAN RIGHTS – Practice – summary dismissal application – claim of racial discrimination in conduct of arresting police – Court not satisfied that no reasonable prospect of success – application refused.

HUMAN RIGHTS – Practice – security for costs – applicant with history of refusing to pay costs – security and stay ordered.

Federal Magistrates Act 1999 (Cth), s.80
Federal Magistrates Court Rules 2001 (Cth), rr.13.10(a), 21.01
Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.46PO
Migration Litigation Reform Act 2005 (Cth)
Racial Discrimination Act 1975 (Cth), ss.9(1), 13

Vivid Entertainment LLC & Others v Digital Sinema Australia Pty Ltd [2007] FMCA 157
Paramasivam v The University of New South Wales [2007] FCA 875
Paramasivam v The University of New South Wales and Others [2006] NSWSC 1189

Rana v The University of South Australia (2004) 136 FCR 344

Applicant:

GAJA LAKSHMI PARAMASIVAM

Respondent:

THE STATE OF NEW SOUTH WALES

File Number:

SYG 584 of 2007

Judgment of:

Smith FM

Hearing date:

22 June 2007

Delivered at:

Sydney

Delivered on:

22 June 2007

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the First Respondent:

Mr P Ginters

Solicitor for the Respondent:

NSW Crown Solicitor

ORDERS

The applicant provide security for the respondent’s costs in this proceeding in the sum of $10,000 in such form as may be agreed between the parties or, failing agreement, in a form acceptable to the District Registrar of the Court.
The application is stayed until security is provided or until further order.
Liberty to either party to have the matter relisted for directions on a date allowing 3 days notice to the other party.
The matter is otherwise to be relisted for directions on 14 December 2007 at 9.30am.
The respondent’s interim application filed on 26 March 2007 is otherwise refused.
One half of the respondent’s costs in its interim application are its costs in the proceeding.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 584 of 2007

GAJA LAKSHMI PARAMASIVAM

Applicant

And

THE STATE OF NEW SOUTH WALES

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The substantive matter before me commenced in the Federal Court of Australia on 21 February 2007, with an application under s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth). The application was accompanied by a notice of termination signed by a delegate of the Human Rights and Equal Opportunities Commission dated 28 November 2006, addressing the applicant’s complaint in respect of actions of the New South Wales Police Force and its officers. The delegate terminated the complaint as “lacking in substance and misconceived”.
The complaint identified actions of members of the police force in the course of arresting and charging the applicant on four occasions when she was removed from the premises of the University of New South Wales in 2003 and 2004. It is unnecessary for me to relate the details of these events for the purposes of this judgment. They are described in the judgment of Tamberlin J in Paramasivam v The University of New South Wales [2007] FCA 875, which refers to a fuller description given by Sully J in Paramasivam v The University of New South Wales and Others [2006] NSWSC 1189 at [13] and following.
The applicant has already pursued complaints arising out of these events against the University of New South Wales through the Human Rights and Equal Opportunities Commission to the Federal Court. Her application in that Court was recently dismissed summarily by Tamberlin J in the judgment I have referred to above. The applicant tells me today that she is appealing from that judgment. Previously, the applicant pursued common law remedies in both the District Court and the Supreme Court, where her actions were also summarily dismissed in judgments which are now before me.
Before all this litigation, the applicant was a frequent litigator in several Courts in relation to a variety of other complaints. Their history is narrated in affidavits and a volume of documents which have been presented to me by the respondent, in relation to issues of security which I shall address below.
As a side comment, I note that in this case, as it would appear in the case before Sully J, the litigants on both sides have burdened the Court with unnecessarily bulky materials which they seem to expect will be read in chambers after the hearing. However, with the assistance of counsel for the respondents, I have been able sufficiently to digest that material so as to give judgment immediately.
Today, I must address the respondent’s application filed on 26 March 2007 seeking summary dismissal or, alternatively, for security for costs. The interim application was filed in this Court after an order of Madgwick J in the Federal Court on 20 February 2007 remitted the matter to this Court “for hearing of the respondent's application”, after what appears to have been a foreshadowing of the present interim application. At an earlier directions hearing I raised an issue as to the effect of his Honour's order of remittal, but it is now common ground that the whole of the matter commenced by the applicant in the Federal Court, has been remitted to this Court for determination, including the present interim application.

The application for summary dismissal

The respondent's application for summary dismissal invokes rule 13.10(a) of the Federal Magistrates' Court Rules, which provides:
13.10 Disposal by summary dismissal
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or …
This rule follows amendments made by the Migration Litigation Reform Act 2005 (Cth) to the legislation governing all federal courts, which altered the basis for summary dismissal for lack of merit. The authorities which have addressed the changed basis were recently reviewed by Federal Magistrate Driver in Vivid Entertainment LLC & Others v Digital Sinema Australia Pty Ltd [2007] FMCA 157 at [18] to [30], where his Honour provided a useful summary of the principles emerging from the authorities extracted by him. I would respectfully adopt his summary, and not repeat it.
As the cases indicate, the change to the test of “no reasonable prospect of successfully prosecuting the proceeding” from the previous “no reasonable cause of action is disclosed” allows a broader, and in some respects, less demanding assessment of the lack of merits of an application brought in this Court.
The legislative test also now requires a predictive assessment of the case which an applicant is likely to be able to present, if he or she were permitted to pursue the matter through the Court's processes to a final hearing. The nature of that predictive assessment must, in my opinion, be understood as allowing a Court to take into account the stage at which the proceeding has reached when the application for interlocutory dismissal is brought, so as to be less demanding as to demonstrated evidentiary support at the commencement of the proceeding. This is because an assessment of “prospects” can vary through the stages of management of a proceeding, and particularly in this Court, as I shall explain below. The test of “reasonable prospect” suggests a value judgment which would take into account the level of investigation and preparation of evidence reasonably expected to have been achieved as the matter progresses. This would allow, for example, at the commencement of a proceeding, a broader latitude in the Court’s assessment of prospects than an assessment made immediately before or during a hearing.
In this Court, the flexibility and informality of its proceedings which are intended by the legislation and rules setting up the Federal Magistrates' Court, make it particularly important to be cautious at early stages of a proceeding before forming a conclusion that a litigant has “no prospect of success”. The need for this caution in an application for summary dismissal was referred to by Lander J in Rana v The University of South Australia (2004) 136 FCR 344 under the previous rule allowing summary dismissal. However, in my opinion, the points made by his Honour in support of caution remain equally, if not more, relevant to a consideration of the Court's current power of summary dismissal. His Honour said at [75]:
In my view, because the FMC Rules do not require pleadings; the parties are not obliged to tender all their evidence when the application and response is filed; there are few, if any, interlocutory processes available; and the Federal Magistrates Court is a low cost court, the Federal Magistrates Court should be very cautious about summarily dismissing an applicant's proceeding. That course should only be adopted when it is clear, beyond any doubt, that the applicant has not, and cannot, articulate in writing a reasonable cause of action. As I have already said, the philosophy of the Federal Magistrates Court is to provide inexpensive justice and a streamlined dispute resolution process. Litigants will often be self-represented and the documents they rely on as founding their claim will no doubt often be imprecisely articulated. In those circumstances, there is even more reason for the Federal Magistrates Court to be cautious before summarily dismissing an applicant's claim.
A further point relevant to the consideration of the present application, is the point suggested by Tamberlin J in Hicks v Ruddock in a passage which is extracted in Federal Magistrate Driver's judgment. Tamberlin J said:
Section 31A of the Federal Court Act 1976 (Cth) was introduced to impose a lower requirement to dismiss an action by way of summary judgment than that which was imposed in General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125. In that case, the requirement was expressed in terms of "manifestly groundless" or "obviously untenable".
In a case where evidence can give colour and content to allegations and where questions of fact and degree are important, the Court should be more reluctant to dismiss a proceeding on the face of a pleading: see Boston Commercial Services Pty Ltd v G E Capital Finance Australia Pty Ltd [2006] FCA 1352 at [45]. The underlying principle is that the need for a summary judgment must be clear before the court will intervene to prevent a plaintiff submitting a case for determination in the usual way. Once it appears that there is a real issue to be determined, whether it be of fact or law, and that the rights of the parties depend on it, the court should not terminate the action by way of summary judgment. As Barwick CJ said in General Steel at 129-130, great care must be exercised to be sure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of the opportunity to have his or her case tried by the appointed tribunal. The general principle that a person should not lightly be shut out from a hearing is cogent – the onus on the party applying for summary judgment is heavy.
In the present case, the applicant has not yet focused her claims and detailed her evidence against the police conduct when arresting her. However, she has filed an initial supporting affidavit required under the Rules, which sets out a history of events involving her removal from the university and her subsequent prosecution. This includes a description of how she was treated by members of the police force on the four occasions of her arrest. She points to differences which occurred between when she was wearing a sari and when she was wearing western dress, and she points to differences in the behaviour of the arresting officers, including references to their words and other conduct. These matters caused her to believe that some of the officers were racially prejudiced against her, and that this influenced the severity of how she was treated.
As well as pointing to different treatment that occurred in the course of the arrests, she points to some other aspects, such as how an arrest sheet was filled out in reference to her nationality. She also has other arguments which she wishes to present at the final hearing to persuade the Court that the actions of the police were, in part, influenced by racial discrimination falling within s.9(1) of the Racial Discrimination Act 1975 (Cth).
This provides:
Section 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.
The human rights or fundamental freedoms in relation to which she claims to have been unequally treated, are those referred to in article 5 of the Convention annexed to the Act. These include the right “To equal treatment before the Tribunals and all other organs administering justice”. At this point, without conclusively deciding the matter, I am inclined to think that this includes the right to equal treatment by officers of law enforcement agencies in the course of arrest and prosecution.
At this stage of the proceeding no directions have been given requiring the applicant to identify all her evidence, whether by affidavit or in points of claim, and no directions have been given requiring the respondent to make a decision on whether to present any evidence. The respondent has not, in fact, yet presented to the Court any evidence identifying a defence to the proceeding brought by the applicant.
I have carefully considered all the material presented by the applicant, and the careful submissions of counsel for the Minister, and am not persuaded that at this point in the proceeding the applicant has “no reasonable prospect of successfully prosecuting the proceeding or claim” in relation to a claim of unlawful conduct under s.9(1) of the Racial Discrimination Act 1975 (Cth).
Counsel for the State of New South Wales invited me to form the same interlocutory judgment as to the merits of the applicant’s claims against the police as Tamberlin J formed in relation to her claims against he university in Paramasivam v The University of New South Wales (see above). I have given very careful consideration to that submission, and to the need to respect the judgments formed by his Honour in a matter having a factual, as well as a legal parallel, with the present situation.
However, his Honour was not addressing the applicant's complaints about the conduct of the police in relation to her arrest but, as I would understand his reasons, was addressing complaints addressing the actions of the University in calling upon their assistance to effect the applicant's removal and charge. In the present case, I am concerned with the manner in which the police officers conducted themselves when performing that removal. I would not understand his Honour to have addressed the applicant’s claims as to their conduct. In my opinion, the material before me requires me to form a different judgment in this case than his Honour formed in that case.
Since the matter will remain in my docket for a final hearing, it is inappropriate for me to enter into a closer analysis of the applicant's evidence and prospects in relation to all the issues which arise in her s.9(1) claim. I consider that she should be permitted to pursue this claim to a final hearing.
The applicant also relies on claims that there was indirect discrimination under s.9(1A), and that the actions of the police also amounted to unlawful conduct in relation to the provision of services under s.13. The applicant faces obvious difficulties in relation to both of these contentions, and I might have been inclined to form a judgment that she has not shown reasonable prospects for these claims at the present stage. Counsel for the respondent invited me to make some procedural order foreclosing the applicant attempting to improve her prospects in relation to those claims by presenting further evidence before and at a final hearing. However, I would not do that.
I am not persuaded that requirements of fairness to the respondent require these claims to be foreclosed, nor that the respondent's ability to prepare for a final hearing would be advanced by my making such orders. The respondent will face, as will the Court itself, difficulties in dealing with a litigant in person who presents bulky and diffuse material to the Court in support of her case. However, this is a frequent occurrence in this Court, and the Court must, and does, endeavour to ensure justice to both parties in this situation.
For the above reasons I would therefore refuse the application for summary dismissal.

The application for security

The respondent’s interim application seeks orders that the applicant provide security in the sum of $19,570, to be paid within one month, and the matter to be stayed during that period. It also requests a guillotine order for the dismissal of the proceeding in the event that that this is not complied with. Although I do not propose to make orders in the form requested, I am persuaded that it is appropriate in this case to exercise the discretion to require security, and to impose a stay until it has been provided.
This Court's power to order security is not focused in the manner of Federal Court Rule 18(3), but it has a general discretion under s.80 of the Federal Magistrates Act 1999 (Cth) and rule 21.01 of the Federal Magistrates Court Rules 2001 (Cth). In my opinion, the usual principles in relation to ordering security are appropriately applied in this Court under its general discretion. At the forefront of such a consideration is whether the respondent has shown a proper concern that a costs order will be not met within a reasonable period, in the event of the applicant failing to establish her case.
It is also relevant to consider whether the applicant could meet an order for security, since the authorities suggest that an impecunious litigant in person should not be shut out of pursuing a justified claim by way of an order to provide security. However, in the present case there is evidence before me suggesting the applicant is able to raise security in the amount I have in mind, and she has not presented any evidence nor a submission to the contrary.
As to the propriety of ordering security in this case, I accept the respondent’s submissions, supported by extensive evidence, that the applicant has revealed on many occasions in her previous litigation an hostility to meeting orders for the payment of costs, and that this history should cause me a concern in the present case. I do not think it necessary to elaborate that finding. A similar finding was made, albeit obiter, by Tamberlin J in Paramasivam v The University of New South Wales, (above) at [17].
Taking into account all the evidence and submissions before me, I propose to order security in the sum of $10,000, and to order a stay until that is provided. I do not propose to impose any guillotine in relation to default, but the applicant will not be able to progress her case until she has provided security. If an unreasonable delay occurs in her giving security, then it will be open to the respondent to move the Court for further summary orders.
In relation to costs, since the respondent has had only limited success in its interlocutory application, I shall order only that one half of its costs in the application are to be its costs in the proceeding.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 6 July 2007