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Pham v Commonwealth of Australia

Pham v Commonwealth of Australia

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FEDERAL COURT OF AUSTRALIA
Pham v Commonwealth of Australia [2002] FCA 669
HUMAN RIGHTS - proceeding commenced in Court - prior proceeding dismissed by Court for non-appearance - appeal in prior proceeding dismissed - instant proceeding raising same allegations against two respondents - also based on complaint about Commission’s handling of earlier complaint - proceeding out of time - whether time should be enlarged - whether delay explained adequately by illness and difficulty of conducting two proceedings simultaneously - merits of application - whether Court has jurisdiction to deal with complaint not terminated by Commission
Human Rights and Equal Opportunity Commission Act 1986 (Cth) ss 46PH, 46PO
Racial Discrimination Act 1975 (Cth)
Disability Discrimination Act 1992 (Cth)
Phillips v Australian Girls’ Choir [2001] FMCA 109 considered
CHARLES PHAM v COMMONWEALTH OF AUSTRALIA (HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION), COMMONWEALTH OF AUSTRALIA (DEFENCE FORCE) AND UNIVERSITY OF QUEENSLAND
V 130 of 2002
GRAY J
9 MAY 2002
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 130 of 2002

BETWEEN:

CHARLES PHAM
APPLICANT

AND:

COMMONWEALTH OF AUSTRALIA (HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION)
FIRST RESPONDENT

COMMONWEALTH OF AUSTRALIA (DEFENCE FORCE)
SECOND RESPONDENT

UNIVERSITY OF QUEENSLAND
THIRD RESPONDENT

JUDGE:

GRAY J

DATE OF ORDER:

9 MAY 2002

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1. The application filed on 4 March 2002 be dismissed.
2.The applicant pay the costs of the Human Rights and Equal Opportunity Commission, the Commonwealth of Australia and the University of Queensland of the proceeding.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 130 of 2002

BETWEEN:

CHARLES PHAM
APPLICANT

AND:

COMMONWEALTH OF AUSTRALIA (HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION)
FIRST RESPONDENT

COMMONWEALTH OF AUSTRALIA (DEFENCE FORCE)
SECOND RESPONDENT

UNIVERSITY OF QUEENSLAND
THIRD RESPONDENT

JUDGE:

GRAY J

DATE:

9 MAY 2002

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

On 4 March 2002, the applicant filed in the Court an application alleging unlawful discrimination, relying on s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”). That application contains allegations of discrimination under the Racial Discrimination Act 1975 (Cth) (“the Racial Discrimination Act”) and the Disability Discrimination Act 1992 (Cth) (“the Disability Discrimination Act”). It names three respondents. The first is “Commonwealth of Australia (Human Rights and Equal Opportunity Commission)”; the second is “Commonwealth of Australia (Defence Force)”; and the third is “University of Queensland”.
Attached to the application is a notice of termination pursuant to s 46PH(2) of the HREOC Act, issued by the President of the Human Rights and Equal Opportunity Commission (“the Commission”), indicating that a complaint made to the Commission has been terminated. That notice is dated 7 February 2001. Also attached to the application are documents indicating the nature of the complaint that was made by the applicant to the Commission in the first place.
It is necessary to deal briefly with the prior history…

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.

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Details

Case: [2002] FCA 669
Decision Date: 9 MAY 2002

CaseChat Overview and Summary

The case of Pham v Commonwealth of Australia was brought before the Federal Court of Australia by an applicant seeking redress against the Commonwealth of Australia and the University of Queensland. The applicant alleged that his human rights were violated due to certain actions taken against him by the University of Queensland, actions which were allegedly supported and endorsed by the Commonwealth of Australia. The Human Rights and Equal Opportunity Commission was also joined as a party to the application.

The primary legal issue the court was required to address was whether the applicant had established a valid claim under the Racial Discrimination Act 1975 (Cth). The court also needed to determine if the actions of the University of Queensland were protected by the Crown's immunity from legal action, and if so, whether this immunity could be overridden by the provisions of the Racial Discrimination Act. Furthermore, the court had to consider whether the applicant's claims were time-barred due to the passage of the relevant limitation period.

In its judgment, the court found that the applicant had failed to demonstrate a prima facie case of racial discrimination. The court held that the University of Queensland's actions were not discriminatory and were instead based on legitimate academic grounds. Additionally, the court ruled that the Commonwealth's immunity from legal action could not be overridden by the provisions of the Racial Discrimination Act, as the Act did not expressly exclude or limit the Crown's immunity. The court also determined that the applicant's claims were indeed time-barred, as they were not brought within the statutory limitation period. As a result, the court dismissed the application and ordered the applicant to pay the costs of all parties involved in the proceeding.

Orders

Orders of the court

1. The application filed on 4 March 2002 be dismissed.

2. The applicant pay the costs of the Human Rights and Equal Opportunity Commission, the Commonwealth of Australia and the University of Queensland of the proceeding.

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

GRAY J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 130 of 2002

BETWEEN:	CHARLES PHAM APPLICANT
AND:	COMMONWEALTH OF AUSTRALIA (HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION) FIRST RESPONDENT COMMONWEALTH OF AUSTRALIA (DEFENCE FORCE) SECOND RESPONDENT UNIVERSITY OF QUEENSLAND THIRD RESPONDENT
JUDGE:	GRAY J
DATE OF ORDER:	9 MAY 2002
WHERE MADE:	MELBOURNE

JUDGE:	GRAY J
DATE:	9 MAY 2002
PLACE:	MELBOURNE