FEDERAL COURT OF AUSTRALIA
Payne v Long [2020] FCAFC 170
Appeal from: Payne v Long [2019] FCA 1765 File number(s): ACD 88 of 2019 Judgment of: RARES, GRIFFITHS AND ABRAHAM JJ Date of judgment: 9 October 2020 Catchwords: HUMAN RIGHTS – alleged discrimination under ss 9 and 13 of the Racial Discrimination Act 1975 (Cth) – where respondent did not enrol or process enrolment of appellant in a vocational course – where vocational course was targeted for and gave priority in enrolment to indigenous students – where appellant was not of indigenous background – where appellant would have been entitled to undertake the course with a fee exemption, if places remained available – whether course was an exempt special measure under s 8 of the Act and Arts 1(4) and 2(2) of the International Convention on the Elimination of All Forms of Racial Discrimination – Held: course was an exempt special measure – enrolment criteria and process adopted by the respondents in furtherance of the special measure did not contravene ss 9 or 13 – appeal dismissed Legislation: Australian Human Rights Commission Act 1986 (Cth), s 46PH
Racial Discrimination Act1975 (Cth), ss 8, 9, 13, 18
Technical and Further Education Commission Act 1990 (NSW), ss 4, 6
International Convention on the Elimination of All Forms of Racial Discrimination, Arts 1, 2
Vienna Convention on the Law of Treaties of 1969 [1974] ATS 2, Arts 31, 32
Cases cited: Cordelia Holdings Pty Ltd v Newkey Investments Pty Ltd [2004] FCAFC 48
Dearman v Dearman (1908) 7 CLR 549
Gerhardy v Brown (1985) 159 CLR 70
Hearne v Street (2008) 235 CLR 125
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1
Payne v Davies [2019] FCA 1506
Povey v Qantas Airways Ltd (2005) 223 CLR 189
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 160 ALR 588
Victrawl Pty Ltd v Telstra Corporation Ltd (1995) 183 CLR 595
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 71 Date of hearing: 10 August 2020 Counsel for the Appellant: V M Heath Counsel for the Respondents: D F Villa SC Solicitor for the Respondents: Wendy Blacker Lawyers ORDERS
ACD 88 of 2019 BETWEEN: CARL PAYNE
Appellant
AND: IAN LONG
First Respondent
THE TECHNICAL AND FURTHER EDUCATION COMMISSION TRADING AS TAFE (NSW)
Second Respondent
ORDER MADE BY:
RARES, GRIFFITHS AND ABRAHAM JJ
DATE OF ORDER:
9 OCTOBER 2020
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the respondents’ costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
THE COURT:
On 7 June 2016, Carl Payne, the appellant, and his wife,…
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- Payne v Long [2020] FCAFC 170
- Case
- [2020] FCAFC 170
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CaseChat Overview and Summary
The Court of Appeal found that the vocational course was indeed an exempt special measure under section 8 of the Racial Discrimination Act 1975 (Cth). The enrolment criteria and process adopted by the respondent did not contravene sections 9 and 13 of the Act. The Court of Appeal emphasised that the primary judge had the advantage of seeing and hearing the witnesses and had made findings based on her assessment of their evidence. The Court of Appeal found no error in the primary judge's characterisation of the course as a special measure. The Court also found that the enrolment criteria and process adopted by the respondent in furtherance of the special measure did not contravene sections 9 and 13 of the Act. Consequently, the appeal was dismissed with costs.
The Court of Appeal's reasoning was based on the principles outlined in Lee v Lee (2019) 266 CLR 129, which state that a court of appeal must conduct a "real review" of the evidence given at first instance and the trial judge’s reasons for judgment to determine whether the trial judge has erred in fact or law. The Court of Appeal held that the primary judge had correctly assessed the evidence and made findings based on her assessment of the witnesses' credibility and reliability. The Court of Appeal further found that the enrolment criteria and process adopted by the respondent were in line with the special measure and did not constitute discrimination under sections 9 and 13 of the Act.
ORDERS:
1. The appeal be dismissed.
2. The appellant pay the respondents' costs.
Orders
Orders of the court
1. The appeal be dismissed.
2. The appellant pay the respondents’ costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
As to ground 4, Mr Payne submitted that her Honour wrongly rejected, or stultified, Mr Payne’s attempt to cross examine Mr Long on emails that he had exchanged with Ms Davies that were annexed to a submission that had been read without objection. He argued that senior counsel had not put a basis, other than his speculation, as to whether the emails might have been subject, in a separate proceeding that Mrs Payne had brought against Ms Davies and Sureway, to the implied undertaking not to use a document or information produced under compulsion without leave of the court for any purpose other than that for which the documents or information was given, unless it has been received into evidence: cf: Hearne v Street (2008) 235 CLR 125 at 154–155 [96] per Hayne, Heydon and Crennan JJ. We will explain the factual context for ground 4 when dealing with it later in these reasons.Consideration In Lee v Lee (2019) 266 CLR 129 at 148–149 [55] Bell, Gageler, Nettle and Edelman JJ restated the principles on which an appellate court must proceed in reviewing the evidence given at a trial and the trial judge’s findings of fact as follows:A court of appeal is bound to conduct a “real review” of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the trial judge has erred in fact or law (Fox v Percy (2003) 214 CLR 118 at 126–127 [25] per Gleeson CJ, Gummow and Kirby JJ; Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679 at 686 [43]; 331 ALR 550 at 558). Appellate restraint with respect to interference with a trial judge’s findings unless they are “glaringly improbable” or “contrary to compelling inferences” (Fox v Percy (2003) 214 CLR 118 at 128 [29] per Gleeson CJ, Gummow and Kirby JJ; Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679 at 687 [43]; 331 ALR 550 at 558–559) is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts (Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392 at 434–435 [144]; Thorne vKennedy (2017) 263 CLR 85 at 104 [42]). Thereafter, “in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge” (Warren v Coombes (1979) 142 CL 531 at 551 per Gibbs A-CJ, Jacobs and Murphy JJ; see also Fox v Percy (2003) 214 CLR 118 at 127 [25]).(emphasis added)Grounds 1 and 2 Grounds 1 and 2 can be considered together as raising the issue of whether the primary judge erred in characterising the course as a special measure within the meaning of s 8(1) of the Act and Art 1(4) of the Convention. We reject Mr Payne’s argument that her Honour erred in her characterisation of the course as a special measure. Her Honour had the advantage of seeing and hearing the witnesses and made her findings of fact based on her assessment of their evidence. The primary judge accepted Mr Long’s evidence after taking into account aspects of it where he accepted that he had been mistaken. For example, her Honour found in relation to what Mr Long had said in the telephone conversations on 15 June 2016:Mr Long accepted in his evidence that he had made a mistake in suggesting that Mr Payne would have to pay $8,450.00 to undertake the Course, explaining that he now understood that the fee which Mr Payne, as a long-term unemployed person, would have been required to pay for a Certificate III course was $240.00.