Wilson v Community and Public Sector Union

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FEDERAL COURT OF AUSTRALIA

Wilson v Community and Public Sector Union [2011] FCA 448

Citation: Wilson v Community and Public Sector Union [2011] FCA 448
Parties: FRED WILSON v COMMUNITY AND PUBLIC SECTOR UNION AND KIM BARNES
File number(s): VID 384 of 2010
Judge: RYAN J
Date of judgment: 5 May 2011
Dates of hearing: 19 November and 13 December 2010
Place: Melbourne
Division: GENERAL DIVISION
Category: No Catchwords
Number of paragraphs: 23
Counsel for the Applicant: The applicant appeared in person
Counsel for the Respondents: Mr M Harding
Solicitor for the Respondents: Slater & Gordon

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 384 of 2010
BETWEEN:

FRED WILSON
Applicant
AND:

COMMUNITY AND PUBLIC SECTOR UNION
First Respondent

KIM BARNES
Second Respondent

JUDGE:

RYAN J

DATE OF ORDER:

5 MAY 2011

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The respondents’ motion on notice dated 9 November 2010 be upheld.

2.The application herein be dismissed.

3.There be no order as to the costs of the said motion or of the application generally.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 384 of 2010
BETWEEN:

FRED WILSON
Applicant
AND:

COMMUNITY AND PUBLIC SECTOR UNION
First Respondent

KIM BARNES
Second Respondent

JUDGE:

RYAN J

DATE:

5 MAY 2011

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. There is before the Court a motion on notice filed on 9 November 2010 on behalf of the respondents, the Community and Public Sector Union (“the CPSU”) and Kim Barnes (“Barnes”), a CPSU representative, in proceedings commenced in the Victorian Registry of the Court on 4 May 2010 by the applicant Fred Wilson (“Wilson”).  In the application, Wilson alleges a general contravention by the respondents of the Racial Discrimination Act 1975 (Cth) (“RDA”). The CPSU and Barnes seek an order for summary dismissal pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (“the Federal Court Act”) on the basis that Wilson has no reasonable prospect of successfully prosecuting the proceedings.

  2. In support of the motion it is contended, in essence, that Wilson’s application and supporting affidavits fail to disclose a cause of action against the CPSU or Barnes.  It is submitted that there has been no contravention of the RDA and, even if there had been a contravention of that Act, it is not open to the Court to grant the relief sought by the applicant. The respondents also seek summary dismissal of Wilson’s application as not having been made within the time prescribed by s 46PO(2) of the Australian Human Rights Commission Act 1986 (Cth) (“AHRCA”).

    Wilson’s claim

  3. The application filed on 4 May 2010 was accompanied by a claim in accordance with Form 167 and a Notice of Termination issued under s 46PH(2) of the AHRCA together with…

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Details
Case
[2011] FCA 448
Decision Date

CaseChat Overview and Summary

The case of Wilson v Community and Public Sector Union involves an application by the respondents for a summary judgment against Wilson, arguing that his claim lacks a reasonable prospect of success under s 31A of the Federal Court Act. The court examined the principles established in various authorities, particularly the High Court decision in Spencer v Commonwealth of Australia, and considered the specific provisions of s 31A. The court's analysis focused on whether Wilson's claim disclosed any real issue of fact or law that could prevent the summary dismissal of his case.

The primary legal issue before the court was whether Wilson's claim had no reasonable prospect of success, warranting a summary judgment in favour of the respondents. This required the court to evaluate the evidence presented by Wilson and determine whether it established any sufficient connection between the alleged discriminatory conduct and Wilson's race, as required by s 9(1) of the Racial Discrimination Act. The court also had to consider whether the alleged conduct by Barnes had the purpose or effect of impairing Wilson's rights or freedoms.

The court found that Wilson's evidence was insufficient to establish that Barnes discriminated against him on the basis of race or that such discrimination had any connection with Wilson's racial background. The court highlighted the requirement of a "sufficient connection" between the designated characteristic and the impugned conduct, as emphasised in Macedonian Teachers’ Association of Victoria v The Human Rights and Equal Opportunity Commission. Furthermore, the court noted that there was no evidence that Barnes' actions had the purpose or effect of impairing Wilson's rights or freedoms. Consequently, the court concluded that Wilson's claim had no reasonable prospect of success.

In light of the foregoing, the court upheld the respondents' motion on notice and dismissed Wilson's application. The court also made no order regarding the costs of the motion or the application.

Orders

Orders of the court

1. The respondents’ motion on notice dated 9 November 2010 be upheld.

2. The application herein be dismissed.

3. There be no order as to the costs of the said motion or of the application generally.

Note:

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

The respondents rely upon s 31A of the Federal Court Act as the source of power to enter the summary judgment which they seek. So far as is relevant, s 31A provides;31A Summary judgment(1) …(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. In considering whether there is sufficient evidence available to the Court to find, on the balance probabilities, that Wilson has no reasonable prospect of successfully prosecuting the proceeding, I have had regard to the recent decision of the High Court in Spencer v Commonwealth of Australia (2010) 241 CLR 118, where the proper construction of s 31A(2) of the Federal Court Act has been considered. As well, several recent authorities in this Court provide useful guidance on the interpretation and application of s 31A. In Helal v McConnell Dowell Constructors (Aust) Pty Ltd [2010] FCA 1462, I referred to the reasons of Kenny J in Deputy Commissioner of Taxation v Southgate Investments Funds Limited [2010] FCA 1298, which adopted, at [22], the observations of Sundberg J in Adnunat Pty Ltd v ITW Construction Systems Australia Pty Ltd [2009] FCA 499, at [37], as indicating how s 31A should be applied. In my assessment of these proceedings I have also considered the useful summary provided by Gilmour J in Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 (“Dandaven”) at [5] and [6] which was relied on by Foster J in Wang v Anying Group Pty Ltd [2009] FCA 1500, at [44]. In Dandaven, Gilmour J said:5Section 31A lowers the bar for obtaining summary judgment: White Industries Australia Ltd v Commissioner of Taxation (2007) 160 FCR 298. The second reading speech of the Migration Litigation Reform Bill 2005 which introduced s 31A stated that its purpose was to strengthen “the power of the courts to deal with unmeritorious matters by broadening the grounds on which federal courts can summarily dispose of unsustainable cases”: Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 70 IPR 146 at [45]; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60 at [124]. 6Success under s 31A does not require a demonstration that the case is hopeless or bound to fail. The following principles are of general application to an application under s 31A: (a)the Court must be very cautious not to do a party an injustice by summarily dismissing proceedings;(b)the Court ought not dismiss a claim based on a predictive assessment of prospects, where it is possible that if the claim went to trial, it may succeed; (c)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; (d)it is not Parliament's intention to require the Court to engage in lengthy and elaborate trials on an interlocutory basis for the purposes of determining whether or not a proceeding has no reasonable prospects of success. It may be necessary for the opposing party to provide no more than an outline of evidence, sufficient to show that there is a genuine dispute, to prevent the summary application becoming a trial;(e)if there is a real issue of fact or law to be decided, and the rights of the parties depend upon it, it is obviously appropriate that the matter goes to trial. It cannot be said that where there is a real factual dispute and that factual dispute must be resolved to determine whether the claim succeeds that there is ‘no reasonable prospect of success’; (g)it ought not be used to shut out proceedings where, on a proposition of law, there may be room for doubt. On questions of law, an inquiry as to their merit should not be for the purpose of resolving them and also not simply to determine whether the argument is hopeless, but in order to decide if it is sufficiently strong to warrant a trial;(h)evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects; (i)in determining if there are real issues of fact in issue so as to preclude summary judgment the courts must draw all reasonable inferences in favour of the non-moving party. See Genovese v BGC Construction Pty Ltd [2007] FCA 923 at [5]; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 70 IPR 146 at [42]-[48]; Hicks v Ruddock (2007) 156 FCR 574 at [13]; Bond v Barry (2007) 73 IPR 490 at [46]; Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in Liq) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 at [30]; Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [21]; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008] FCAFC 60.

Ratio Decidendi

Legal Principle Established

I have distilled from those principles enunciated by his Honour and the other authorities noted at [12] above the proposition that, if the materials available to the Court disclose no real issue of fact or law, Wilson’s claim must be summarily dismissed as having no reasonable prospect of being successfully prosecuted against the CPSU or Barnes.Consideration It is apparent that Wilson was disappointed with the outcome of the Meeting, as he considered that he deserved a higher pay classification than that of AO3 which Australia Post was prepared to grant him. Although it is not entirely clear from the material advanced in support of the application, Wilson seems to suggest that Barnes had negotiated for him a lower pay classification than he desired or should have received, because Barnes had discriminated against him on account of his race. However, there is no further evidence of the way in which Barnes is alleged to have discriminated against Wilson and no proof that he engaged in any such discrimination. Accordingly, it was submitted by Mr Harding of Counsel for the CPSU and Barnes, that the matters put forward in evidence by Wilson are incapable of establishing either that Barnes jeopardised a better outcome which might otherwise have been available to Wilson or, if that allegation were true, that such conduct by Barnes had any connection with Wilson’s race or racial background. Contravention of s 9(1) of the RDA requires first a finding of an act “involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin” (emphasis added). It was pointed out by Mr Harding that the expression “based on” in that part of s 9(1) of the RDA, has been held to express a relationship of “sufficient connection”, so that “there must be a close relationship between the designated characteristic and the impugned conduct”: (Macedonian Teachers’ Association of Victoria v The Human Rights and Equal Opportunity Commission (1998) 160 ALR 489, per Weinberg J, at 512). Although Wilson has asserted, in general terms, in his affidavit that Barnes discriminated against him because of his indigenous background, there is no evidence tending to support the existence of such a sufficient connection. Mr Harding also noted that Attachment B to the Notice of Termination made no mention of any racial discrimination on the part of Barnes or the CPSU but seemed rather to impute racial discrimination to Australia Post Management. The second aspect of s 9(1) of the RDA is the requirement that the impugned act had the “purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life”. In support of the motion it has been contended that, at its highest, Wilson’s evidence is that Barnes failed to persuade Australia Post to do more than it was prepared to do. Thus, without more, that failure by Barnes to achieve a better outcome for Wilson could not have amounted to an act which had the purpose or effect of nullifying or impairing Wilson’s rights or freedoms as recognised by Art. 5 of the Convention or otherwise.