Rodney Barnes v Northern Territory Police
[2012] FMCA 1044
•17 October 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RODNEY BARNES v NORTHERN TERRITORY POLICE & ORS | [2012] FMCA 1044 |
| HUMAN RIGHTS – Where application made following termination of complaint by applicant to the Australian Human Rights Commission – whether unlawful discrimination claimed in application is the same as the unlawful discrimination that was the subject of the terminated complaint and arose from the same acts or practices that were the subject of the terminated complaint. PRACTICE AND PROCEDURE – Proceedings – summary dismissal of proceedings – whether matter already subject of proceedings in this court – whether application against second respondent has no prospects of success – where third respondent not present at the relevant time of the complaint – whether to dismiss the proceedings summarily. |
| Australian Human Rights Commission Act 1986 (Cth), ss.46PO(1), (2), (3) Federal Magistrates Court Rules 2001 Federal Magistrates Court Act 1999 (Cth), s.17A Federal Court of Australia Act1976 (Cth), s.31A |
| Spencer v Commonwealth (2010) 241 CLR 118 Hicks v Ruddock & Ors (2007) 156 FCR 574 Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd [2007] FMCA 157 |
| Applicant: | RODNEY BARNES |
| First Respondent: | NORTHERN TERRITORY POLICE |
| Second Respondent: | DAVID O’RIORDAN |
| Third Respondent: | DARREN ROBSON |
| File Number: | DNG 33 of 2012 |
| Judgment of: | Raphael FM |
| Hearing date: | 17 October 2012 |
| Date of Last Submission: | 17 October 2012 |
| Delivered at: | Darwin |
| Delivered on: | 17 October 2012 |
REPRESENTATION
| For the Applicant: | In person |
| Solicitors for the Respondents: | Solicitor for the Northern Territory |
ORDERS
(1)The substantive proceeding against Mr Robson be dismissed.
(2)The Applicant pay the costs of Mr Robson and the First Respondent to be taxed if not agreed in accordance with the Federal Magistrates Court Rules 2001.
(3)Otherwise the Application in a Case filed on 25 September 2012 be dismissed.
(4)The First Respondent pay the Applicant the sum of $400.00, the said sum to be set off against the costs payable by the Applicant.
(5)The Respondents to file and serve any affidavits in which they intend to rely on or before 7 November 2012.
(6)The Applicant to file and serve any evidence in reply on or before 28 November 2012.
(7)Hearing date in 2013 to be advised, otherwise orders 8, 9, 10, 11, 12 and 13 of the orders of 24 July 2012 stand.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DNG 33 of 2012
| RODNEY BARNES |
Applicant
And
| NORTHERN TERRITORY POLICE |
First Respondent
DAVID O’RIORDAN
Second Respondent
DARREN ROBSON
Second Respondent
REASONS FOR JUDGMENT
Mr Rodney Barnes is an Aboriginal resident of Tennant Creek. He believes that he has been subject to considerable discrimination from members of the police force as a result of his race. He has made complaints about this alleged conduct to the Commissioner of Police and others. He has sought redress from the Australian Human Rights Commission and he has sought legal aid to assist him in these matters and with other matters about which he is concerned.
The matter before me involves a complaint made to the Australian Human Rights Commission which was undated but was terminated under s.46PO(2) of the Australian Human Rights Commission Act 1986 (Cth)[1] on 24 April 2012. Following receipt of that determination Mr Barnes determined to seek relief from this court under s.46PO of the AHRCA. He filed an application on 20 June 2012. In the application he was asked what orders he sought against the respondents. He nominated:
“(1) Charges of criminal act, and;
(2) Dismissal.”
He noted under the question:
“What discrimination are you complaining of? Racially motivated attack.”
[1] “AHRCA”
It is not open to this court to bring charges of criminal conduct against a respondent to this type of proceedings or to order that person's dismissal. Mr Barnes later indicated that he was seeking damages against the respondents.
The three respondents to the application are the Northern Territory Police, Darren Robson and David O'Riordan. I am informed that there is no such entity as the Northern Territory Police. It is a branch of the Northern Territory Government but it has been thought more convenient to all parties that the organisation be named in that way.
The manner in which proceedings are brought to this court under the AHRCA is codified in Part IIB Division 2 of the Act and in particular in s.46PO. The relevant sections for the purposes of this application being ss.46PO(1) and 46PO(3):
“Application to court if complaint is terminated
(1) If:
(a) a complaint has been terminated by the President under section 46PE or 46PH; and
(b) the President has given a notice to any person under subsection 46PH(2) in relation to the termination;
any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Magistrates Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.
Note: Part IVA of the Federal Court of Australia Act 1976 allows representative proceedings to be commenced in the Federal Court in certain circumstances.
(3) The unlawful discrimination alleged in the application:
(a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or
(b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.”
'What happened'
The complaint that Mr Barnes submitted to the Commission is found attached to his affidavit of 6 June 2012. He was asked when the matters complained about happened and he indicated "14 years".
He stated:
“I have made a number of complaints to the Human Rights Commission since 1999 about police, and also to the Ombudsman here in the Northern Territory, but they continued to squash my complaints. I have made a number of complaints recently to Superintendent Delcene Jones of the Ethical and Professional Standards Command over 10 months. I have since not received a response. It's the second time I have made a complaint to the Police Commissioner office. The first time I was told by Bruce Porter not [2] call the Commissioner office. The second time you can read his reply to me by letter.
I also made a complaint to Superintendent Delcine Jones about my son attempting to hang himself in a Tennant Creek police cell which I want investigated, but they keep covering up this incident. Perhaps your organisation can help me take it further. I would also like to ask the Human Rights Commission to investigate an alcohol rehabilitation centre called BRADDAG.
And its manager, Mr Stewart Naylor, for not accepting me and for refusing to accept my son, Thomas, which could have seen both of us being in prison. I will be available to speak to the Human Rights Commission at any time. I also sent copies of my complaints and replies from the police, though they have not replied to all my complaints. I would like to ask the Human Rights Commission to investigate.
It will be seen from this statement that there is no reference whatsoever to incidents involving Mr Robson and Mr O'Riordan. And there is no particularisation of any other general complaints against the police force. However, there was attached to the complaint a letter written by Mr Barnes, again undated, but received on 16 December 2011. That letter reads as follows:
"I am writing this letter as a complaint against two police officers.
The first one is named David O’Redann. The second one is named Andrew Robson.
I will start with the first one David O’Redann.
On the 25th September, 2010 I was sitting outside a the front of my son Russell’s house at No. 7 Wolsely Street, Tennant Creek talking to my son Russell when I saw a vehicle coming at a distance with the person driving with his head out of the window starting straight at me. Though I recognized this vehicle and this person as a police officer I have never spoken to this person or knew him. As he drove closer, I saw that he was mouthing words at me. I then realized that he was swearing at me as he drove past. I said to him (fuck you too) and he said the same to me.
I was hocked and angry at this person to come suddenly out of nowhere on this quiet Saturday afternoon at 2 o’clock to exhibit this act of blatant race hate attack on me and my family and our house. From that day on he has continued to harass me by taunts, tease and starting at me to intimidate me. As Aborigines we experience prejudice, physical threat or assault motivated by race most times in our life and have to get by, by coping as best as we can by either confronting our attackers as best we can or ignoring it.
This behaviour from this policeman is totally unacceptable and cannot be ignored.
Commissioner, I ask for your strongest action please as well as with police officer Andrew Robson who is one police officer who has played a great role in making sure over the last ten years that I and my children do not have an easy and good life and has made damage to my children’s life that they have never reached their full potential in life by harassment 24 hours a day and is harassing us still today.
I am able to make a further statement if required to do so.
I thank you.
Yours sincerely
Rodney Barnes”
Mr Barnes also included the reply from the Northern Territory Fire and Emergency Services Ethical and Professional Standards Command. That noted that the complaint had been made previously and investigated. It was resolved by saying:
“In view of the conflicting information that Mr Barnes provided and the denial of the behaviour by Constable O’Riordan no further investigation or action will be taken in relation to this complaint.”
The letter went on to note that Mr Barnes’ complaint that Officer Robson had over the past 10 years made sure that he and his children did not have an easy life could not be substantiated due to the fact that Mr Robson had only been stationed at Tennant Creek for the past 15 months and there were no previous recorded complaints made against him. In those circumstances that particular complaint was not to be further investigated.
I am of the view that notwithstanding the very general nature of the written complaint made by Mr Barnes the documentation considered by the Australian Human Rights Commission was the complaint against Mr O’Riordan and Mr Robson, and that is further confirmed by the letter of 24 April 2012 in which the Commission advised that the complaint would be terminated because there was no reasonable prospect of it being settled. So I am satisfied that the application that was made to this court was an application within s.46PO(3) and is justiciable.
The respondents have now by way of an application in a case, filed on 25 September 2012, sought the dismissal of the substantive application under Part 13 Rule 13.10 of the Federal Magistrates Court Rules 2001[2] on the grounds that no reasonable cause of action is disclosed in relation to the claim of relief or, alternatively, that the claim is frivolous or vexatious or an abuse of process. The way the matter was put to me in the helpful submissions of Mr Selvaretnam, who also filed an affidavit dated 25 September 2012, which the court has considered, divided the single application between the two policemen respondents, Mr Robson and Mr O’Riordan.
[2] The “Rules”.
The case against Darren Robson
Mr Barnes best articulates his case against Mr Robson in a letter written to this court on 12 June 2012 which he wrote in response to a request to provide some further particulars of his complaints. He states:
“My name is Rodney Barnes. I am 54 years of age and am the father of four sons, Rodney, Russell, Thomas and Richard. The Northern Territory is our home and that of our forebears and I can prove my connection to this land and I feel strongly of my rights to this land and that of my grandchildren’s rights also. For the last 11 years I have been singled out by the Northern Territory police in harassing me, stalking, following me, taunting, even following me to my workplace. Whenever I would complain to the Ombudsman and the Police Ethical Standard Board it would only be defended. These police officers play my complaints down. Sergeant Darren Robson was also involved in all this.
I decided to make a complaint against him to the AHRC after being turned down by Mr Russell Goldflam from the Northern Territory Legal Aid Commission to any action against Sergeant Robson. I have become angry at Sergeant Robson when, in 2010 during NAIDOC Week, I was being taken home around 12 o’clock by my son, Russell, who was driving, and my other [son], Thomas, who was in the front passenger seat and I was in the back, when I saw towards the outback caravan driving towards us when we turned into Staunton Street.
The police car appeared to pick up speed and then it turned and followed us at a speed as if [it] was chasing us. We continued on with the police keeping at a distance behind us until we turned towards Meyers Street towards our house. Then the police car stopped on the middle of the road and they sat there watching us. I then said to my son, Russell, to stop and see who is driving that police car. My son, Russell, and Thomas then said, “It’s that Robson, Dad”. I then said to my two sons that, “Right, mate, I’ve had enough of these cops victimising us and incriminating us in my own country”.
Mr Selvaretnam, in his affidavit, has produced records from the police employment computer which indicate that Darren Robson, who is, in fact, a sergeant of police and not a constable, did not get stationed in Tennant Creek until 15 September 2010. The document actually says 15 December 2010 but I am assured by Mr Selvaretnam that that is a mistake. Although Mr Barnes has indicated that he believed that Sergeant Robson had been around for some time many years ago, this does not appear to be the case because he appears to have joined the force in 2007.
But even if Sergeant Robson was stationed in Tennant Creek some time before 2007 it does not affect the complaint with which I am requested to deal. That happened in 2010 when it is clear Sergeant Robson was not in Tennant Creek. Mr Barnes has had this information for some time and has not produced any evidence which satisfies me that there is an arguable case that Sergeant Robson was there at the relevant time. In those circumstances the appropriate course to take is to dismiss the claim against Darren Robson.
The Case Against David O’Riordan
In the same letter of particulars, Mr Barnes says this, in respect of Mr O’Riordan:
“I am still shocked and angry, as I was that September day, when he drove slowly past our house, mouthing off swear words towards me in front of my son, Russell, as if he was exercising his white pride. I saw also that it was a dangerous situation if he had stopped, because nobody does that in a place like Tennant Creek. After that, he continued to harass me and taunt me, sometimes driving past our house on Wolseley Street with another policeman named Trevor Howie.
The incident is also referred to in a letter from the Northern Territory Legal Aid Commission to Mr Barnes which was submitted to the AHRC. That states:
“I spoke to you by telephone on or about 15 November 2010. You instructed me as follows:
“On 25 September 2010 at 2 pm at 7 Wolseley Street, I was sitting at home with my son. A police officer was driving past in a car in civilian clothes, a Nissan Patrol tray back. A woman was in the car too. I didn’t hear anything. I could see he was swearing at me. On 26 September, another policeman in a red Pajero in civilian clothes drove in front of my yard and stopped. He was looking at me through the window and swearing at me. I couldn’t hear anything. I believe he was saying words like “fuck” and “cunt”. Since then, that policeman always stares at me. I saw him point at me, it scared and shocked me.””
The letter also refers to a statement in corroboration given by Mr Russell Barnes.
In support of the application to dismiss this case it is said that the dispute is already the subject of proceedings commenced originally in the Federal Court and apparently transferred to this court. Those proceedings were commenced on 25 May 2011, as NTD11 of 2011, between Mr Barnes and the Northern Territory Legal Aid Commission, the Northern Territory Police Force, the Northern Territory Government, the Northern Land Council, and Australian Agriculture Company.
The application and affidavit in support are attached to the affidavit of Mr Selvaretnam. I am told by Mr Barnes that the matter was transferred to the Federal Magistrates Court but I have not seen the file. Under the heading Details of the Claim Mr Barnes says:
“That my son, Rodney Junior, sentence is cut. He has a right to appeal his sentence. That I and my family is able to take legal action against the Northern Territory Police Force, as well as the Northern Land Council and the Australian Agricultural Company, as well as against the Northern Territory Government for persecution and prejudice.”
In the affidavit attached to the application, Mr Barnes deposes:
“The continuing persecution by those named above, against me and my family to exercise our rights in our country and for denying the right to use the law for our benefit, to live freely without racism, to bring to account those who are actively persecuting me and my children, for denying us our rights because of our race, I will also like to seek compensation.”
As is required, there was also attached to those documents a complaint that Mr Barnes made to the AHRC and the AHRCs determination. The complaint that Mr Barnes made to the AHRC was on 8 December 2010. It states:
“I would like to make a complaint against the Northern Territory Legal Aid Commission, headed by Mr Russell Goldflam, and the Northern Territory Government for discrimination for failing to act to ensure my son, Rodney Junior, who is in incarceration in the Alice Springs Prison is getting a fair trial and the right to appeal his sentence and for failing to act on my complaints against two police officers who swore at me at my home.
I believe their action against me and my son is because we are Aboriginal and because of my continuing complaints against police and the Legal Aid Department. I will be willing to provide more information if required to do so. I am still continually harassed by the police.”
The letter of 19 April terminating the complaint is headed:
“Your Complaint on Behalf of Yourself and Mr Rodney Barnes Junior Against the Northern Territory Legal Aid Commission.”
It then states:
“A copy of your complaint was provided to NTLAC on 10 December 2011. The AHRC received a reply from NTLAC on 10 January. The Commission sent you a copy of this reply on 4 February. ... I note the Commission held a conciliation conference on 11 April 2011. I understand that the complaint could not be resolved at that time because the parties could not agree on appropriate terms of resolution. I have therefore decided to terminate the complaint, pursuant to section 46PH(1)(i) of the AHRCA, on the ground that I am satisfied that there’s no reasonable prospect of the matter being settled by conciliation.”
I accept that one of the matters about which Mr Barnes complained was the failure of the Legal Aid Commission to act on his behalf in connection with the claim against Mr O’Riordan, but that is not the same as Mr Barnes making a complaint against Mr O’Riordan. It is not clear whether Mr Barnes intended to make a complaint against Mr O’Riordan at that time. He certainly brought in the police force in his generalised application. But it does seem to be clear from the letter of 8 December extracted above that the gravamen of that complaint was the refusal of legal aid. In my view, if Mr Barnes attempted, in the course of the proceedings commenced in the Federal Court and now, possibly, within this court (in this court because Mr Barnes appeared to indicate that the proceedings in the Federal Court had been dismissed), to bring the claim against Mr O’Riordan, it would, in all likelihood, be dismissed as not falling within s.46PO(3) of the AHRCA.
I will, therefore, not find in favour of the first and third respondents that this is an application which should be dismissed because it is already the subject of proceedings. But Mr Selvaretnam also sought to argue that the claim was frivolous or vexatious. When I indicated to him in arguendo that it seemed to me that if conduct of the nature claimed by Mr Barnes had taken place it could constitute discriminatory action, Mr Selvaretnam, rightly in my view, conceded that this was possible.
The power of this court to dismiss proceedings summarily is now found in s.17A of the Federal Magistrates Court Act 1999 (Cth), and reg.13.10 of the Rules. Section 17A relevantly provides:
“(2) The Federal Magistrates 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.”
In the considering the equivalent provision in the Federal Court of Australia Act1976 (Cth), s.31A, in Spencer v Commonwealth (2010) 241 CLR 118 Hayne, Crennan, Kiefel and Bell JJ at [51]-[60] stressed a departure from cases pre-dating the amendment and the importance of approaching the expression “no reasonable prospect” as a whole (see in particular [60]. French CJ and Gummow were similarly cautious about restricting the breadth of the expression, opining at [22]:
“In the Federal Court and in the Court of Appeal of Queensland, the criterion of a "reasonable prospect" of success has been understood in analogous statutory settings to mean a "real" rather than "fanciful" prospect. This exegesis adds little to the words of s 31A. The section authorises summary disposition of proceedings on a variety of bases under its general rubric. It 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 longstanding 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.”
They continued at [24]-[25]:
“The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. The same applies where such a disposition is sought in a summary judgment application supported by evidence. As to the latter, this Court in Fancourt v Mercantile Credits Ltd said:
"The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried."
More recently, in Batistatos v Roads and Traffic Authority (NSW) Gleeson CJ, Gummow, Hayne and Crennan JJ repeated a statement by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde which included the following:
"Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way."
There would seem to be little distinction between those approaches and the requirement of a "real" as distinct from "fanciful" prospect of success contemplated by s 31A. That proposition, however, is not inconsistent with the proposition that the criterion in s 31A may be satisfied upon grounds wider than those contained in pre-existing Rules of Court authorising summary dispositions.
Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a "fanciful" prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.” [citations removed and emphasis added]
In a similar vein, in Hicks v Ruddock & Ors (2007) 156 FCR 574 Tamberlin J stated (at [12]) that the section 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 for Railways (NSW) (1964) 112 CLR 125. In that case, the requirement was expressed in terms of ‘manifestly groundless’ or ‘obviously untenable’.”
However he stressed at [13] that:
“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 GE Capital Finance Australasia Pty Ltd(2006) 70 IPR 146 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 112 CLR 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.”
See also: Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 at [6], Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd [2007] FMCA 157 at [18]–[28].
The alleged actions of Mr O’Riordan have been sworn to by Mr Barnes and I have before me a statutory declaration of his son, Russell dated 15 October 2012 and, as is appropriate when considering these matters, I have looked at them on the basis that this evidence establishes the facts to which it deposes. And so it cannot be said, in my view, that the proceedings have no reasonable prospects of success.
I make the following orders:
(1)The substantive proceeding against Mr Robson be dismissed.
(2)The Applicant pay the costs of Mr Robson and the First Respondent to be taxed if not agreed in accordance with the Federal Magistrates Court Rules 2001.
(3)Otherwise the Application in a Case filed on 25 September 2012 be dismissed.
(4)The First Respondent pay the Applicant the sum of $400.00, the said sum to be set off against the costs payable by the Applicant.
(5)The Respondents to file and serve any affidavits in which they intend to rely on or before 7 November 2012.
(6)The Applicant to file and serve any evidence in reply on or before 28 November 2012.
(7)Hearing date in 2013 to be advised, otherwise orders 8, 9, 10, 11, 12 and 13 of the orders of 24 July 2012 stand.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Raphael FM.
Date: 13 November 2012
6
4