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
ApplicantAND: COMMUNITY AND PUBLIC SECTOR UNION
First RespondentKIM 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
ApplicantAND: COMMUNITY AND PUBLIC SECTOR UNION
First RespondentKIM BARNES
Second Respondent
JUDGE:
RYAN J
DATE:
5 MAY 2011
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
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.
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
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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- Case
- [2011] FCA 448
- Decision Date
CaseChat Overview and Summary
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
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.