Racial Discrimination Act 1975, ss.9, 15 and 18A

Vintila v Federal Attorney General [2001] FMCA 110

Duncan v Hotop v Anor [2002] FMCA 56; (2002) 68 ALD 758

Bruch v Commonwealth of Australia [2002] FMCA 29

(1) The application filed by the applicant on 4 April 2003 be dismissed.

(2) The applicant shall pay the respondent's costs pursuant to Schedule 1 of the Federal Magistrates Court Rules, to be taxed in default of agreement pursuant to Order 62 of the Federal Court Rules.

(3) Pursuant to Rule 21.15 of the Federal Magistrates Court Rules 2001

I certify that it was reasonable to employ an advocate to appear for the Respondent in the proceedings.

1. In this application the applicant by an application filed 4 April 2003 has made a claim against what is now known as the respondents, who I shall collectively refer to as `Busways', said to have arisen out of the employment by the applicant with the respondent. The application which was filed on 4 April 2003 was supported by an affidavit sworn by the applicant the same day. That affidavit is in brief terms and it is perhaps useful to set out the application and indeed the brief affidavit in the text of this judgment. The application seeks orders as follows:

"1. Stop to abuse and racial vilification using a high technology driven `blame and shame' campaign using `spy agency'.

2. Stop to exposure of my `thoughts and memories'. I am rendered unable to work in my profession and as an individual because I am exposed to everyone which endangers my life and the lives of my family and friends.

3. Damage to my personal reputation due to allegation of theft."

2. The affidavit to which I have referred provides the following:

"I believe my case is significant to the greater society in that I am rendered unable to preserve my individuality (independence) as my brain constantly is picked up by a `spy agency' working for those mentioned organisations. Hence I am exposed which endangers my life and those of others.

The constant abuse and vilification using this incidents method, has affected my person both healthwise and professionally. I am forced out of my job and have been out of work for 18 months for the aforementioned reasons."

3. When the matter came before this court on 16 May 2003, the court had before it a notice of termination issued by the Human Rights and Equal Opportunity Commission (the Commission) which was dated 14 March 2003. Attached to that notice of termination was the usual Attachment A setting out full reasons for the Commission's decision and also setting out by way of Attachment B the original complaint. In the reasons for decision, the commission decided to terminate the complaints having been satisfied that it was lacking in substance, and thereafter gave detailed reasons for that decision.

4. A response was filed in this matter by the respondent on 7 May 2003. As I indicated, the matter came before the court on 16 May 2003 and on that occasion certain orders were made permitting the applicant to amend the description of what was then referred to as the first respondent and to include the names which now appear as respondents, which I have collectively referred to as Busways.

5. The applicant was then granted other leave to amend the description of the then third respondent who was permitted to make application for summary dismissal. I ordered that the claim as it then appeared against a second respondent, `Auburn Hospital', and the third respondent be dismissed, and made a further order in relation to costs. The parties remaining were ordered to attend mediation. It was made clear that the proceedings be otherwise adjourned for further directions on 7 July 2003.

6. On 16 May 2003 the applicant appeared in person and I permitted Busways Group to appear by a company representative or employee at that stage solely for the purpose of what was then directions proceedings for the Respondent. Counsel for the third respondent appeared in support of the application for summary dismissal.

7. The orders that were made and the judgment delivered ex tempore on that occasion occurred in the presence of the applicant. The applicant has at all material times provided to this court an address which has consistently been his address in Wattle Street, Footscray West.

8. When the matter came before the court on 7 July 2003 there was no appearance for the applicant. The court was then advised that the remaining respondent Busways wished to make application for summary dismissal. I granted leave to the respondent to make an oral application for summary dismissal and ordered that the matter be listed for trial this day at 10 am. I then made an order that the respondent should file and serve an outline of submissions and list of authorities in relation to the application for summary dismissal. I dispensed with so much of the rules that would otherwise prevent the matter from being heard this day.

9. The matter then was the subject, as ordered, of an outline of submissions being filed, together with a list of authorities by the respondent. When the matter was called on for hearing this day I asked that the applicant be called and when called there was no appearance.

I then directed that the matter be stood down to enable inquiries to be made of the applicant and of registry to determine the whereabouts and, if possible, intentions of the applicant. After a short break the matter was then recalled. The applicant still did not appear. My associate had attempted to contact the applicant by telephone on the telephone number provided in the court documents and there was no answer.

10. Inquiries made with registry revealed that a person purporting to be the applicant contacted the court yesterday and had asked a deputy registrar: "What happens if I do not attend court?" He was advised, I am told, that the case would be likely to proceed without him and that if he wanted to be heard he should attend. He then asked: "Can I still appeal?" and was told: "It is not that clear, and you should attend if you want to be heard."

11. I further permitted the respondent to hand to the court a file copy of a letter, which I am prepared to receive for the purpose of this application, dated 18 July 2003 addressed to the applicant care of the same address which appears on the court record. That covering letter from the solicitors for the respondent encloses by way of service the respondent's outline of submissions and list of authorities.

12. Having regard to the chronology of events, it is clear to me that the applicant has at all material times been aware of this hearing date. I am satisfied that he has received the orders and relevant documents have been served upon him. Having regard to the contact yesterday with registry, I am satisfied that he is aware the proceedings are listed this day and may be heard in his absence. I should further add that I am aware that as a result of the orders and decision made on 16 May 2003 the applicant in application V441/03 in the Federal Court of Australia has sought to appeal against that decision. That appeal is still pending and is currently docketed before Gray J. A copy of the notice of appeal, which is normal procedure in matters of this kind, has been provided as a courtesy to this court by the Federal Court. I note that the notice of appeal filed 5 June 2003 again gives the same address for the applicant, who of course is the appellant in those proceedings, as the address which appears on the court file. That appeal has not yet been heard and determined, though it was the subject of a hearing scheduled for 9 July 2003.

13. In the circumstances I was concerned to then consider whether at the request of the respondent, who has been granted leave to make oral application for summary dismissal this day, I should proceed to hear and determine the matter. I was further concerned not simply in relation to the absence of the applicant, but also in relation to the pending appeal as to whether I should proceed to hear and determine this application for summary dismissal. Where an applicant who the court is satisfied has adequate or appropriate notice of a hearing decides not to attend the hearing or otherwise participate in the hearing, then in my view, it is open to the court, without there being any reasonable excuse provided, to proceed in the absence of that party.

14. Further, where there is an appeal pending which relates to orders dismissing the claim against other respondents, I can see no reason why this court should not proceed to hear and determine the summary dismissal application before this court. In relation to the remaining respondent, the outcome of the appeal that is pending will not and should not have an impact upon the proceedings that are currently before the court against that respondent.

15. I am satisfied that it is in the interests of justice and procedural fairness to both parties that I should proceed to hear and determine this matter. Of course if the applicant chooses to appeal from this decision, then that is a matter entirely for him, having regard to advice he may or may not seek arising out of any decision made by this court.

16. The respondent has adopted an outline of submissions in support of the application to strike out or, as I understand it, dismiss the application against it. Those submissions filed 21 July 2003, having been adopted by counsel for the respondent, seek to rely upon a number of well-known authorities in relation to the issue of summary dismissal.

17. It is perhaps sufficient to refer to one of those authorities namely a decision of this Court in the matter of Vintila v Federal Attorney General [2001] FMCA 110, where at paragraphs 11 and 12, I state the following:

"11. The principles in relation to whether or not the court should exercise its discretion to dismiss, in a summary manner, an application have been referred to in a number of authorities. Those authorities have been usefully referred to by His Honour Weinberg J in the case of McKeller and Ors v Container Terminal Management Services Ltd and Ors [1999] FCA 1101; (1999) 165 ALR 409. In that case, His Honour refers to the principles governing summary dismissal and the discussion of those principles commences at page 415. His Honour there refers to the often quoted passage from the decision by Dixon J, as he then was, in the case of Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62. At page 91 His Honour said:

`A case must be very clear indeed to justify the summary intervention of a court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.'

12. Weinberg J further quotes from the same decision of Dixon J comments which have been approved by Mason CJ and Their Honours Deane and Dawson JJ in the decision of Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598. In that case, at page 602, the court said, quote:

`The power to order summary judgment must be exercised with ´exceptional caution' and ´should never be exercised unless it is clear that there is no real question to be tried'."

18. Applying those principles to the present case, it is important to note the nature of the application and supporting affidavit to which I have referred. It is useful in the present case to note the reasons for the decision of the Commission, which in considering the possible breaches of ss.9, 15 and 18A of the Racial Discrimination Act 1975, rejects the applicant's claim and concludes that it lacks in substance for the reasons set out in the commission's decision. I have read and considered those reasons and, in my view, the basis of the commission's decision is correct.

19. It is not necessary for me to do anything other than conclude that, in my view, the same conclusion should be reached on the material before me. It is clear to me, applying the principles to which I have referred and considering the outline of submissions and other authorities to which reference has been made by the respondent, including other decisions this court has made in the matter of Duncan v Hotop v Anor [2002] FMCA 56; (2002) 68 ALD 758 and Bruch v Commonwealth of Australia [2002] FMCA 29, that in this case it is an appropriate exercise of the court's discretion, for the reasons that I have given, that the application filed by the applicant on 4 April 2003 be dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of McInnis FM