Sharma v Legal Aid Queensland

[2003] HCATrans 795

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B48 of 2002

B e t w e e n -

NARENDRA KUMAR SHARMA

Applicant

and

LEGAL AID QUEENSLAND

Respondent

Application for special leave to appeal

McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 25 JUNE 2003, AT 11.32 AM

Copyright in the High Court of Australia

MR N.K. SHARMA appeared in person.

MR S.J. KEIM:   May it please the Court, I appear for the respondent in this matter.  (instructed by Legal Aid Queensland)

McHUGH J:   Yes, Mr Sharma.

MR SHARMA:   Thank you, your Honour. Your Honour, the issues in this case are of public importance because of the fact that there are differences of opinion of the judges in relation to questions of section 9(1) of the Racial Discrimination Act and also in relation to the standard of proof that is applied in cases involving discrimination.  The other ground I have advanced, your Honour, was that there was a failure on the part of the Full Federal Court to consider all the evidence that was before it.

McHUGH J:   That is not a special leave point, Mr Sharma.

MR SHARMA:   Yes, your Honour. Then I will confine my argument to those two points. The points were that section 9(1) of the Racial Discrimination Act has been analysed by Justice Weinberg in the case of ‑ ‑ ‑

McHUGH J:   I know, but this matter was first raised on the hearing of the appeal.  It was not raised before the primary judge.  The Full Court said that it was not explained how section 9 would be enlivened in the circumstances of the present case if section 15 did not apply to the facts.  What is your answer to that?

MR SHARMA:   That is so, your Honour, but it is a question of law, your Honour.

McHUGH J:   It is a question of?

MR SHARMA:   It is a question of law, your Honour.  If my counsel did not advance any argument in relation to that, I should not be punished.

McHUGH J:   No, but it is not a question even of that, although it is an important question, that the point has not been raised.  But how do you say that section 9 could bring a favourable result if section 15 does not?

MR SHARMA:   Yes, your Honour, I can say that.  Section 9 contains the operative words “based on”.  Now, those words “based on” have been analysed by Justice Weinberg to mean that there is no need to show nexus between the act done by a person and the race of a person.  If that test is applied to my case, there would not be any need to apply a high standard of proof, which is what has happened in this case, your Honour.

McHUGH J:   But, again, the Briginshaw standard was conceded.  Your counsel conceded that the Briginshaw standard was the applicable standard.

MR SHARMA:   It was conceded, your Honour.  The other argument I had was that my counsel was very junior, who I had to engage because of circumstances beyond my control.

McHUGH J:   Your opponent says that, junior or not, he conducted the case with very considerable ability.  The fact that somebody is junior does not make all that much difference.  It depends what their ability is.  I have said publicly more than once that barristers do not improve much after about two years.  They learn a lot more but their ability is there or it is not there.

MR SHARMA:   She was there only for a year, your Honour.  She had been admitted for a year only and there are some points, but important points, which had been missed by her during the course of the trial before.

McHUGH J:   Yes, but, Mr Sharma, what you have to understand – and I am sure you do – is that this is not an appellate court.  We just do not hear appeals.  There has to be something special about the case for us to hear the case.  We can only hear 50 or 60 cases a year out of the tens of thousands of cases that are decided each year around the country.  So there has to be something very special about the case.  There are some issues of considerable moment been argued already today but special leave has been refused for various reasons.  You have to show something special about this case.

MR SHARMA:   Your Honour, the issue relating to these two sections has not been decided by this Court so far.  That is to say, that the standard of proof applied in this case has not been decided by this Court.

McHUGH J:   Yes, but we do not sit here to decide abstract questions of law or what might be interesting questions.

MR SHARMA:   With respect, your Honour, this did apply to my case, standard of proof.

KIRBY J:   But, you see, from our point of view, if a point has been conceded in a case, that is not really the occasion that we would take it up because then we get sidetracked into the issue of concessions or the way the matter was run or the issues that were in contest at the trial, instead of having a clear matter where we can grapple with the point.

MR SHARMA:   But, your Honour, what I am trying to say is that that was beyond my control.  I had a very senior counsel working for me.  He had to be in court that particular day ‑ ‑ ‑

KIRBY J:   It was not really beyond your control.

MR SHARMA:   ‑ ‑ ‑ and I made an application for adjournment, which was refused.

McHUGH J:   There is a debate about that, is there not?  There is nothing in the record which suggests that you did make an application for an adjournment.

MR SHARMA:   I did, your Honour.  There is an application.  I did fax a copy to the Deputy Registrar.  It was made, your Honour.  Also, your Honour, it is not the question of inexperience only; it was a question of shortage of time.  My counsel withdrew on the last day.

KIRBY J:   We understand all that, but my recollection reading the case was that you asked for the adjournment.  It was not granted.  Counsel then appeared for you and you then were content that the matter proceed and it did proceed, so that water had flown under the bridge.

MR SHARMA:   Because I had no choice, your Honour.  I was told that I would not get an adjournment and I had to find someone and I did.

KIRBY J:   Yes, but I thought I read that you indicated you did not want the matter adjourned, that you were content that it proceed with your new counsel.

MR SHARMA:   Yes, your Honour, with respect, because I was told ‑ ‑ ‑

KIRBY J:   Is that a correct recollection of the record?

MR SHARMA:   Not exactly, your Honour.  I was told on Friday when I made an application – I was in the court about up to 10.30 – that, “You will have to find a counsel.  The judge has indicated you will not get adjournment.”  I was left with no choice.

McHUGH J:   Mr Sharma, this Court is not going to grant special leave to determine whether or not you should have been granted an adjournment.

KIRBY J:   Which you did not ultimately press.  You see, unfortunately for you, you have to then say, “I pressed the application for adjournment.”  If it is then not granted, then you have preserved your point, but if you do not press it and you go on with the case, that is water under the bridge.  You are an experienced lawyer.  You know how these matters are matters of practicality.  You cannot go reopening old wounds.

MR SHARMA:   All that I can say, your Honour, that it was beyond my control.  I tried everything I could to find someone.

KIRBY J:   You have said that.  We understand that you were in a bit of a predicament, but the fact is you did not even formally put an application for an adjournment.  You went ahead with the case.  That closes that door, I am afraid, at least it closes it in this Court.  We are the second tier.  Anyway, you would do best to press on in your available time with any other points that you have.  You have narrowed your grounds of application in the latest communication to the Court, have you not?  You now have three grounds.

MR SHARMA:   Your Honour, the one ground was about the standard of proof. The other ground was the application of section 9(1) of the Racial Discrimination Act.

KIRBY J:   They are connected.

MR SHARMA:   The other point was about whether or not the respondent can contravene the Racial Discrimination Act only if the majority of its panel members do so.  This point was raised by the respondent’s counsel before the first court and before the Full Court and, in fact, it was the counsel for the respondent misquoted Justice Kirby – that is yourself your Honour – that you need the majority of the panel who have contravened the Act to constitute unlawful act under the Racial Discrimination Act, but your Honour has said that that is not the case.  That was said at page 66 in the case of IW v City of Perth.

KIRBY J:   I hesitate to say it, but I was dissenting in that case.  This is IW v City of Perth?

MR SHARMA:   Yes, your Honour.

KIRBY J:   I was dissenting in that case.

MR SHARMA:   But the point you made, your Honour, was that you do not need majority of the panel to do an act to constitute unlawful act under the Racial Discrimination Act.  That point has not been taken up by the Full Court, but that argument was advanced by counsel both in the first court and the Court of Appeal.

KIRBY J:   What did the majority say on that point in IW?

MR SHARMA:   The majority did not say that, your Honour.  There was only two judges, yourself, your Honour, and ‑ ‑ ‑

KIRBY J:   Justice Toohey, I think.

MR SHARMA:   That is right, your Honour.

KIRBY J:   Yes, but the problem was we were dissenting from the orders of the Court in that case and the other members of the Court knocked the case out at an earlier point.  They said it was not services, so they did not get to any of the other points we had to solve.

MR SHARMA:   That is correct, your Honour.

KIRBY J:   So we do not have any holding of the Court on this ‑ ‑ ‑

MR SHARMA:   But this point has not been decided by this Court so far, your Honour, and this also applied to my case because there was a panel of three people.  The respondent says that it was only one person on each panel who had done something wrong, not the majority of the panel.

McHUGH J:   But that was not the point that the case was decided against you at first instance, was it?

MR SHARMA:   It was not, your Honour, but it was referred to by the trial judge.

KIRBY J:   Why would we bring it up if it is not the determining point in the case?  We are just too busy to deal with every point that is important to people.  I acknowledge this case is very important to you, but we will only deal with points if they are determinative of the case, have been correctly argued and reserved in the court below, and raise an issue of general importance.  You fall at each of those three levels, it seems to me.

MR SHARMA:   I have one more small argument, your Honour, and that argument is this.  There was documentary evidence, there was testimonial evidence that I had met the selection criteria.  I was the highest scorer and they are the two requirements under the Legal Aid policy and yet I did not get the job.

McHUGH J:   But nobody got the job, did they?

MR SHARMA:   The second time somebody got it, your Honour.

McHUGH J:   Yes, but not for the Mackay job.  You got top marks for the Mackay job but then nobody was appointed, were they?

MR SHARMA:   In the second round the person was and that person got similar marks to what I had got.  That is the point I am trying to make, your Honour.  If a person gets similar marks, meets the selection criteria, gets the highest marks, that person gets the job, it does not apply to me.

McHUGH J:   Yes, but these are questions of fact and her Honour Justice Kiefel found that there was nothing to suggest that the panel members did not honestly hold the view concerning your experience, that you just did not have sufficient experience.

MR SHARMA:   But, your Honour, my experience is set out in the application which is part of the ‑ ‑ ‑

McHUGH J:   I know it is.

KIRBY J:   But we cannot be retrying those factual determinations unless you have some flaw of a legal character that you can show.  That is what you have been trying to do.  But we are not going to turn ourselves into a third level tribunal of fact.  That is not our role.

MR SHARMA:   I agree, your Honour, but that was the case in the State Rail New South Wales where the documentary evidence was not given the standard that it should have been given and this Court decided ‑ ‑ ‑

KIRBY J:   But that was in an appeal in which there was an obvious failure to address particular issues which was determinative or potentially determinative of the outcome of the case.  That is the problem that you face.

MR SHARMA:   Your Honour, there was another issue and that was a very strong issue.  It is that was that selection 4 was the most important criteria.  Documents in relation to selection 4 in relation to myself only have gone missing.  There were seven documents bundled together, only four documents have gone missing.  Just because the panel members say they might have gone to another file, if there are two files created at the same time, your Honour, one file has gone missing, the other file is there.  Where have those documents gone?  Just because they say, “No, they have gone to the file and the judge has accepted that”, if seven documents are bundled together, how can four fall off and three stay there? 

They are the most important documents that would have said why I did not get the job and what was my score on selection criteria 4.  That was not addressed by either the trial judge or the Full Court and there is evidence, your Honour.  There was a bundle of seven documents.  They were bundled together.  Only four documents – the most important document, the referee report, the selection documentation, my score – and

that is the basis, your Honour, they are implying that I did not get the right score.

McHUGH J:   But, Mr Sharma, these are questions of fact.  They do not raise special leave questions.  It would not matter if they were quite wrong.  We just do not grant special leave to review questions of fact.

MR SHARMA:   That is all, your Honour, then.  I do not think there is anything else.  Thank you, your Honour.

McHUGH J:   Thank you, Mr Sharma.  The Court need not hear you, Mr Keim.

Given the way that the case was conducted at the trial and the points now sought to be raised, the Court is of the view there is no reason to doubt the correctness of the decision of the Full Court of the Federal Court.

Accordingly, the application must be dismissed with costs.

AT 11.47 AM THE MATTER WAS CONCLUDED