Paramasivam v University of New South Wales

APPLICATION TO THE FEDERAL COURT OF AUSTRALIA 9 When the matter came on for hearing before me, Mr Mattson gave a detailed outline of submissions setting out the history of the matter and referring to relevant authorities. Because the applicant had not yet had an opportunity to consider these submissions, I decided to hear the applicant's submissions in chief, and ask Mr Mattson to present his written and oral submissions in full, which he did. I then directed the applicant to file and serve full and complete written submissions dealing with the University's submissions and any other matters she wished to address. I also directed the applicant to supply a copy of those written submissions on the University, and gave leave for the University to reply in writing. 10 I have now had the benefit of considering all those further materials. 11 This matter has had a lengthy history dating back to 1999 and the full history of the matter is detailed in the parties' affidavits, annexes and exhibits. The litigious history involves applications and dismissals brought by the applicant before the Administrative Decisions Tribunal, the Supreme Court of New South Wales, the District Court of New South Wales and HREOC. 12 In the proceeding brought before the Supreme Court of New South Wales, Sully J dismissed the applicant's statement of claim on the basis that the proceedings, although not frivolous, could properly be characterised as vexatious and as an abuse of process of the Court: Paramasivam v University of New South Wales [2006] NSWSC 1189. The claims in that proceeding arose out of claims substantially overlapping those brought in the present proceeding. 13 In the present proceeding, the applicant asserts that University security officers and the NSW Police Service identified and removed her from the University's premises by reference to her dark complexion and Sri Lankan background. However, in my view, this belief of the applicant is not determinative when one considers that the appropriate test for unlawful racial discrimination under s 9 of the Act is whether a person has suffered unfair treatment based partly or wholly, or sufficiently connected to, his or her race, colour, descent or national or ethnic background: see Macedonian Teachers' Association of Victoria Inc v Human Rights and Equal Opportunity Commission (1998) 91 FCR 8 at 33; Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615 at [39]. In broad terms, under the Act it is unlawful to do any act involving a distinction based on race, colour, descent or national or ethnic origin which has the purpose or effect of impairing the recognition, enjoyment or exercise on an equal footing of any human right. Moreover, where an act is done for one or more reasons, it is enough that one of the reasons is the race, colour, descent or national or ethnic origin of the relevant person, irrespective of whether it is the dominant or substantial reason for doing the act: see Jones v Scully (2002) 120 FCR 243 at 273. The applicant claims that she comes within this requirement. 14 Section 31A(2) of the Federal Court of Australia Act 1976 (Cth) empowers the Court to give summary judgment against an applicant if it is satisfied that the applicant has "no reasonable prospect of successfully prosecuting the proceeding". This is a less onerous test than that previously stated and applied in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130, namely that the allegations are "so clearly untenable that [they] cannot possibly succeed". Section 31A was designed to make it easier for an opposing party to strike out a claim or defence: see Boston Commercial Services Pty Ltd v GE Capital Australasia Pty Ltd (2006) 70 IPR 146 at 158; Duncan v Lipscombe Charles Care Service Inc [2006] FCA 458 at [6]. Of course it is essential that the Court must be careful not to do an injustice by summarily dismissing proceedings, or denying an applicant an opportunity to ventilate their case. However, in the present case, the material placed before the Court is not sufficient to satisfy the threshold raised by s 31A(2) because it does not raise a reasonable argument to the effect that there has been a contravention of the Act. The version of the evidence for which the applicant contends merely indicates a reference to the applicant's colour of skin or ethnic origin as a way of identifying her for the purpose of giving effect to the provisions of the Inclosed Lands Protection Act 1901 (NSW), a piece of legislation which applies equally to people of any ethnic origin. Merely to identify a person by reference to characteristics of clothing, ethnicity or skin for the purpose of the application and enforcement of a generally applicable law is not a contravention of the Act. 15 I have carefully considered the evidence of the applicant, and it does not, even at its highest, provide any support for the view that she has been treated unlawfully because of race, colour or ethnicity. To the contrary, the evidence supports the conclusion that there was no causal relationship between the removal of the applicant from the University's premises and any contravention of her human rights or unlawful deprivation of equal opportunity. There must be a connection between the impugned act and the prohibited ground as opposed to a mere belief that there has been a discriminatory course of conduct, and when ascertaining whether this connection exists, a broad interpretation of s 9 of the Act should be preferred: see Baird v State of Queensland (2006) 156 FCR 451 at 468. In the present case, the applicant is of the belief that she has been unlawfully discriminated against in the basis of her race or ethnicity. The evidence before the court does not establish the necessary basis for forming a view that a causal relationship existed. For these reasons, I am satisfied that there is sufficient substance in the submissions made for the University to warrant summary judgment being entered in its favour. 16 It is not necessary for me to deal with the other prayers contained in the University's notice of motion as they were all posited in the alternative. However, I will briefly state my position on two of the other prayers. 17 First, I would grant prayer five in the notice, which seeks a stay in this proceeding until the applicant provides security for costs. Given the lengthy history of the matter, the cumbersome detail of the affidavits filed to date, and the period over which the proceedings will be heard, it would be reasonable and appropriate for the proceedings to be stayed until the applicant provides security for costs in the amount of $10,000. In the circumstances, this figure, which was proposed by the University, would be extremely modest. Accordingly, even if I was convinced that there was some reasonable prospect of success in this present application, I would still consider that the proceedings should be stayed until security for costs had been given. 18 Secondly, I would not grant prayer four in the notice of motion, which seeks a permanent stay in the proceedings before this Court until the applicant pays the University's costs as ordered by the Supreme Court of New South Wales. Although I would not grant such a stay, I have taken the respondent's failure to satisfy the orders of the Court into account when considering whether a stay would be appropriate until security of costs have been given in respect of the present application. 19 For the above reasons, I have reached the conclusion that the applicant's application should be dismissed pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth). The applicant is to pay the costs of the University in respect of both the application and the University's motion for summary judgment. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.