Payne v Davies

Case [2019] FCA 1506

FEDERAL COURT OF AUSTRALIA

Payne v Davies [2019] FCA 1506

File number: ACD 71 of 2017
Judge: PERRY J
Date of judgment: 13 September 2019
Catchwords: PRACTICE AND PROCEDURE – application for summary dismissal under s 31A, Federal Court of Australia Act 1976 (Cth) and r 26.01, Federal Court Rules2011 (Cth) – where applicant alleged that the respondents’ refusal to enrol her into a tertiary course constituted racial discrimination in breach of the Racial Discrimination Act 1975 (Cth)– where Australian Human Rights Commission terminated the applicant’s complaint – where the preconditions to the Court’s jurisdiction in s 46PO(3) of the Australian Human Rights Commission Act 1986 (Cth) to entertain a complaint of victimisation are not met – where no evidence that the respondents could or did refuse or fail on demand to supply the course to the applicant – application for judicial review summarily dismissed
Legislation:

Australian Human Rights Commission Act 1986 (Cth) s 46PO

Federal Court of Australia Act 1976 (Cth) s 31A

Racial Discrimination Act 1975 (Cth)

Sex Discrimination Act 1984 (Cth)

Federal Court Rules 2011 (Cth) r 26.01

Cases cited:

Bropho v Western Australia [2004] FCA 1209

Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118

French v Gray [2013] FCA 263; (2013) 217 FCR 404

Picos v Australian Federal Police [2015] FCA 118

Picos v Servcorp Limited (No 2) [2015] FCA 343; (2015) 236 FCR 141

Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473

Shammas v Canberra Institute of Technology [2014] FCA 71

Date of hearing: 10 October 2018
Date of last submissions: 7 November 2018
Registry: Australian Capital Territory
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 56
Counsel for the Applicant: The Applicant appeared in person
Counsel for the Respondents: Ms E Raper
Solicitor for the Respondents: Bartier Perry

ORDERS

ACD 71 of 2017
BETWEEN:

TRACEY PAYNE

Applicant
AND:

ANN-MARIE DAVIES

First Respondent

SUREWAY EMPLOYMENT AND TRAINING PTY LTD

Second Respondent

JUDGE:

PERRY J

DATE OF ORDER:

13 SEPTEMBER 2019

THE COURT ORDERS THAT:

1.The application is summarily dismissed under s 31A of the Federal Court of Australia Act 1976 (Cth) and rule 26.01 of the Federal Court Rules 2011 (Cth).

2.The applicant is to pay the respondents’ costs as agreed or assessed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

PERRY J:

1         INTRODUCTION

[1]

2         EVIDENCE

[6]

3         A PRELIMINARY ISSUE:  IDENTIFICATION OF THE COMPLAINT AS ACCEPTED AND TERMINATED BY THE COMMISSION

[9]

4         BACKGROUND

[14]

4.1      The applicant’s complaint to the Commission

[14]

4.2      Termination of the complaint on 5 July 2017

[19]

4.3      The issues raised by the applicant’s application for relief in this Court

[23]

5         THE STEPS TAKEN IN THE LITIGATION TO DATE

[28]

6         CONSIDERATION

[29]

6.1      Principles governing a summary dismissal application

[29]

6.2 The statutory regime for racial discrimination claims under the AHRC Act

[35]

6.3…

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AGLC
Payne v Davies [2019] FCA 1506
Case
[2019] FCA 1506
Decision Date

CaseChat Overview and Summary

In Payne v Davies, the Federal Court considered an application for summary dismissal of an applicant's claim for judicial review of the Australian Human Rights Commission's (AHRC) decision to terminate her complaint. The applicant alleged that the respondents had racially discriminated against her by refusing to enrol her into a course offered by TAFE NSW. The Court was required to decide whether the applicant's claim had any reasonable prospects of success. The Court found that the applicant's claim of racial discrimination was without any reasonable prospects of success because there was no evidence that the respondents could or did refuse or fail on demand to supply the course to the applicant. Furthermore, the Court held that it lacked jurisdiction to consider the applicant's claim of victimisation because it was not part of the applicant's complaint as accepted and terminated by the AHRC. Accordingly, the Court summarily dismissed the application with the applicant to pay the respondents' costs as agreed or assessed.

The applicant alleged that the respondents' refusal to enrol her into a course offered by TAFE NSW constituted racial discrimination in breach of the Racial Discrimination Act 1975 (Cth). The AHRC terminated the applicant's complaint, and the applicant sought judicial review of that decision. The Court was required to determine whether the applicant's claim had any reasonable prospects of success. The Court found that the applicant's claim was without any reasonable prospects of success because there was no evidence that the respondents could or did refuse or fail on demand to supply the course to the applicant. The Court also held that it lacked jurisdiction to consider the applicant's claim of victimisation because it was not part of the applicant's complaint as accepted and terminated by the AHRC. The Court therefore dismissed the application under s 31A of the Federal Court of Australia Act 1976 (Cth) and rule 26.01 of the Federal Court Rules 2011 (Cth). The applicant was ordered to pay the respondents' costs as agreed or assessed.

Orders

Orders of the court

1. The application is summarily dismissed under s 31A of the Federal Court of Australia Act 1976 (Cth) and rule 26.01 of the Federal Court Rules 2011 (Cth).

2. The applicant is to pay the respondents’ costs as agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

It follows that the applicant’s assertion that the complaint comprises the complaint form dated 15 November 2016 is contradicted by all of the available evidence. 4. BACKGROUND4.1 The applicant’s complaint to the Commission It is convenient to refer to the complaint form received by the Commission on 12 November 2016 as the original complaint. In her original complaint against TAFE NSW and Mr Long, the applicant raised concerns about the enrolment requirements for a Cert III Civil Construction and Plant Operations course (the Course) offered by TAFE NSW at TAFE Riverina Institute. The allegations made by the applicant in her original complaint can be summarised as follows.(1)On 7 June 2016 she attended the TAFE Riverina Institute with her husband as he was attending the Course and she wanted to provide him with support because he suffered from dyslexia.(2)As Sureway, who was her job service provider, was located there, she also intended to inquire about the Course with Sureway “with the intentions of applying and asking about the course.” She further explained that “… as my Husband and I had previously discussed the day prior that we would try and look at getting these certificates and experience to help us and enable us to start our own small business, as the local rural community has very little employment opportunities and there was an opportunity for us to purchase a truck, which we did so recently.” (3)However, the applicant said that “[b]efore I had had a chance to mentiion this to [Ms Davies] she asked myself if I was aboriginal with that I replied No she then said that that’s a shame because you could have done the course to” (errors in original). (4)As a result, she was “shocked, offended and insulted”, as well as “concerned and terrified” that her husband would find out that “the course was for aboriginals only” given the social and economic disadvantages from which he had suffered throughout the course of his life. (5)The applicant also said that she saw no women enrolled in the course but only men. As a consequence she inferred that the course was available only to Aboriginal men and therefore “it was not only my race but also because I am female. The decision in which was made to impose or propose to impose terms or conditions for the course I believe that that decision was based on race and misogyny”.(6)In Mrs Payne’s email dated 19 November 2016, Mrs Payne stated that “[w]hen I went to the course and on speaking with Ann-Marie Daru from Sureway she stated to me that it was for aboriginals only.” She claimed that this amounted to less favourable treatment based on her race. She also claimed discrimination on the basis of her sex. The original complaint against TAFE NSW was accepted by the Commission as a complaint of racial and sex discrimination under the RDA and Sex Discrimination Act 1984 (Cth) (respondents’ complaint bundle at p. 37). The Commission in its letter to the applicant dated 22 December 2016 stated that “[b]ased on the information available before the Commission at this stage, your claims as it relates to Mr Long are unclear” and accordingly, the complaint was not accepted against Mr Long at that stage (respondents’ complaint bundle at p. 36).

Evidence

Evidence Before The Court

For the reasons set out below, the application by Mrs Payne has no reasonable prospects of success and must be dismissed under s 31A(2) of the FCA Act and r 26.01 of the FCR. 2. EVIDENCE The respondents’ application for summary dismissal is supported by the affidavits of Andrew Finlay Yahl, solicitor, affirmed on 19 February 2018 (Mr Yahl’s first affidavit) and on 2 March 2018 (Mr Yahl’s supplementary affidavit). The supplementary affidavit is intended only to correct a matter to which Mr Yahl had deposed in his first affidavit, namely, that his understanding was that the originating application had not attached a copy of the complaint to the Commission. The respondents also relied upon a bundle of documents filed after the hearing by them with leave of the Court which was directed to the issue of identifying the complaint as accepted and terminated by the Commission (the respondents’ complaint bundle). I consider this issue at [9]-[13] below. The applicant relied upon her statement of evidence filed on 11 December 2017 and a bundle of documents in response to those filed by the respondents as to the alleged complaint filed on 10 May 2018 (the applicant’s complaint bundle). The applicant also made reference in her post-hearing submissions filed on 1 November 2018 to evidence filed in the proceedings No. ACD 47 of 2017 instituted by her husband, Carl Payne, to which the respondents are Ian Long and Technical and Further Education Commission trading as TAFE (NSW). However, I have not taken any evidence in Mr Payne’s proceeding into account because the respondents to this proceeding are not privy to the evidence in the other proceeding and the Court may have regard only to evidence tendered, and other documents filed in, the present proceeding.3. A PRELIMINARY ISSUE: IDENTIFICATION OF THE COMPLAINT AS ACCEPTED AND TERMINATED BY THE COMMISSION A preliminary issue arose between the parties as to whether the complaint as accepted and terminated by the Commission comprised:(1)the complaint form dated 15 November 2016 which was emailed to the AHRC on 22 November 2016, as alleged by the applicant; or (2)the complaint form dated 12 November 2016 and the applicant’s letter dated 19 November 2016, as alleged by the respondents. Importantly, the complaint form dated 15 November 2016 on which the applicant seeks to rely alleges that Sureway victimised her (see annexure AFY-2 to Mr Yahl’s supplementary affidavit at p 19). However, neither Sureway or Ms Davies were named as respondents in the complaint form dated 12 November 2016 and no allegation of victimisation was made against either of them when the complaint was amended to include the applicant’s letter dated 19 November 2016 and they were joined as respondents. As a result, Sureway and Ms Davies contend that the applicant’s claim of victimisation in this proceeding has no reasonable prospects of success on the ground that the Court lacks jurisdiction to consider that claim because it was not part of the applicant’s complaint as accepted and terminated by the Commission (see further below).

Decision

Reasons for decision

It follows that, taking the evidence at its highest, there is no evidence that Sureway and Ms Davies could, or did refuse or fail on demand, to supply the Course to Mrs Payne. Rather, as the respondents submitted, all of the available evidence is that they were merely “messengers” in the sense that Sureway through its employee, Ms Davies, did no more than convey information to Mrs Payne about the eligibility requirements for the Course as set by TAFE NSW. It is therefore unnecessary to consider the respondents’ submission that in any event, the Course and its eligibility criteria constitute special measures as defined in s 8 of the RDA although I note that there is considerable force in that submission. The applicant’s claim of racial discrimination in any event is without any reasonable prospects of success. 7. CONCLUSION For these reasons, the application should be summarily dismissed with the applicant to pay the respondents’ costs as agreed or assessed.

Ratio Decidendi

Legal Principle Established

The primary steps taken to date in the proceedings can be summarised as follows.(1)On 20 October 2017, Jagot J made directions setting a timetable within which the applicant was to file and serve “all material on which she intends to rely”, the respondents are to file a statement of facts and contentions and “all evidence upon which they intend to rely”, and the applicant is to file and serve any material in reply. Orders were also made for case management at the conclusion of that timetable on 9 February 2018. No directions were made requiring the applicant to file a statement of claim.(2)On 11 December 2017, Mrs Payne filed and served a document entitled “Statement of evidence of Mrs Tracey Payne” attaching 12 exhibits (see exhibit AFY-1 to Mr Yahl’s first affidavit) including a statutory declaration (exhibit AFY-1 at pp. 144-145).(3)At the case management hearing on 9 February 2018, further timetabling orders were made which provided for the filing and service of an interlocutory application for summary dismissal by 19 February 2018.(4)On 19 February 2018, the respondents filed the summary dismissal application and Mr Yahl’s first affidavit in support of that application. The supplementary affidavit of Mr Yahl earlier referred to was filed on 2 March 2018.(5)Submissions on the summary dismissal application have been exchanged, including the post-hearing submissions and materials earlier referred to.6. CONSIDERATION6.1 Principles governing a summary dismissal application Section 31A of the FCA Act relevantly provides that: (2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:(a) the first party is defending the proceeding or that part of the proceeding; and(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:(a) hopeless; or(b) bound to fail;for it to have no reasonable prospect of success. The test for summary dismissal laid down by r 26.01(a) of the FCR (“no reasonable prospects of success”) is the same test for summary dismissal as that in s 31A of the FCA Act: Shammas v Canberra Institute of Technology [2014] FCA 71 at [13], [51] (Foster J). Rule 26.01(c) also provides for a matter to be summarily dismissed where no reasonable cause of action is disclosed. The principles governing the application of s 31A are well established and were summarised recently in Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473 at [7] as follows:(1) The respondent as the moving party bears the onus of persuading the Court that the application has no reasonable prospects of succeeding: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256 (Cassimatis) at 271 [45] (Reeves J). (2) With respect to the scope of s 31A, French CJ and Gummow J explained in Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 (Spencer) at [22], that the section:… will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. It will include the class of case in the long-standing category of cases which are “frivolous or vexatious or an abuse of process”. The application of s 31A is not, in terms, limited to those categories.(3) Section 31A sets a lower threshold than the previous test for summary dismissal which required that the claim be “manifestly groundless” or “hopeless”: Spencer at [52]-[53] (Hayne, Crennan, Kiefel and Bell JJ). Nonetheless, the discretion must still be exercised with caution (Spencer at [24] (French CJ and Gummow J) and [60] (Hayne, Crennan, Kiefel and Bell JJ)). (4) An assessment of whether a proceeding has no reasonable prospects of success for the purposes of s 31A involves the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision vests a discretion in the Court: Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; (2009) 178 FCR 401 (Kowalski) at [28] (the Court).(5) Consistently with this, Reeves J in Cassimatis explained at [46] that:…the determination of a summary dismissal application therefore does not require a mini-trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial. Instead, it requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial. Each application for summary judgment or summary dismissal has to be determined according to its particular circumstances. What is required is a practical judgment of the case at hand. The relevant circumstances will partly depend upon the stage which the proceedings have reached. Among other things, this will affect the materials available to the Court considering the application, for example, whether pleadings have been exchanged, or discovery of documents has occurred.(6) To illustrate the application of these principles, Reeves J explained at [47] that the moving party is more likely to succeed if she or he demonstrates that the applicant’s success relies on a question of fact that is fanciful, trifling, implausible, improbable, tenuous, or contradicted by all the available documents or evidence. Conversely, his Honour explained that, as a general principle, such an application is unlikely to succeed where, on a critical examination of all the available materials, the Court is satisfied that there appears to be a real question of fact to be determined. The latter, in his Honour’s view, is more likely to be the case where the available materials include pleadings that raise factual disputes that can truly be described as significant, substantial, plausible or weighty.