Paramasivam v University of New South Wales

Federal Court of Australia (Full Court)|1975-01-01|Before: Tamberlin J, Middleton JJ

INTRODUCTION 1 Ms Paramasivam appeals from a decision of Tamberlin J of 19 June 2007: Paramasivam v University of New South Wales [2007] FCA 875. His Honour summarily dismissed an application made under s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (the HREOC Act) by which Ms Paramasivam complained that the University of New South Wales (UNSW) had racially discriminated against her, contrary to s 9 of the Racial Discrimination Act 1975 (Cth) (the RDA). 2 Section 9 of the RDA provides: It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footings, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life. 3 In addition, Ms Paramasivam said that Art 5(f) of the International Convention on the Elimination of all Forms of Racial Discrimination (1 January 1975) 1975 ATS 40 (ICERD), which is a schedule to the RDA, had also been contravened. It provides: The right of access to any place or service intended for use by the general public such as transport, hotels, restaurants, cafes, theatres and parks. The alleged discriminatory conduct took place on the four occasions referred to in [10] below. 4 Tamberlin J summarily dismissed the proceeding upon the motion of UNSW pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) because his Honour was satisfied that Ms Paramasivam had no reasonable prospect of successfully prosecuting the proceeding. It was not contended by Ms Paramasivam that his Honour had misunderstood or misapplied the proper legal test applicable to such a motion: see e.g. Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720; Duncan v Lipscombe Charles Care Service Inc (2006) 150 IR 471. 5 As Ms Paramasivam acknowledged in her helpful oral submissions, the essence of her appeal was that his Honour had erred in concluding at [15] of his reasons: 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. 6 We note that, to avoid any issue arising as to whether the decision appealed from was interlocutory or final in nature, on 25 July 2007, to the extent necessary, an extension of time within which to file an application for leave to appeal, and leave to appeal, from the decision of Tamberlin J were granted.

BACKGROUND 7 Ms Paramasivam is of Sri Lankan ethnic origin. She was employed by UNSW for some years until 1999. Thereafter, arising out of the circumstances in which her employment with UNSW came to an end, she took various steps and brought various proceedings unsuccessfully seeking to resolve issues which she perceived arose from those circumstances. For present purposes, it is not necessary to refer to them, or the reasons for their outcome in any detail, because the focus of her present application and this appeal is quite confined.

8 Between 23 June 2003 and 29 October 2004 Ms Paramasivam attempted to take up directly with UNSW her ongoing grievances about the circumstances in which her employment with UNSW came to an end. At various times, Ms Paramasivam also expressed her grievances to the Ombudsman's office of New South Wales, the Independent Commission against Corruption of New South Wales, the Anti-Discrimination Board of New South Wales, the Human Rights and Equal Opportunity Commission (HREOC), and various State and Federal ministers. She also issued proceedings both in this Court and in the Supreme Court of New South Wales against various persons who had refused to take up her grievances or who she considered had been unsympathetic to them.

CIRCUMSTANCES GIVING RISE TO THE ALLEGED DISCRIMINATORY CONDUCT 9 Ms Paramasivam claimed that she had been discriminated against by UNSW on the basis of her Sri Lankan ethnic origin. The alleged discriminatory conduct concerned the period between June 2003 and October 2004. 10 In particular, she complained that UNSW had arranged for New South Wales Police officers to arrest her on 15 September 2003, 10 November 2003, 22 October 2004 and 29 October 2004 on occasions when she had attended UNSW grounds to see the Vice Chancellor to discuss her ongoing grievances. She asserted that staff from UNSW must have provided false information to the NSW Police Service, including details about her ethnic origin, which led to her having been arrested on those occasions while on the grounds of UNSW. She said that on the first three of those occasions she had been wearing a sari, and on the last occasion a western suit. 11 The evidence indicated that on 23 June 2003 Ms Paramasivam had come to the office of the Vice Chancellor to speak to him about her grievances against UNSW. He was not available. She saw the Director of Human Resources who discussed her grievances with her. She was not satisfied with the outcome of that discussion and indicated that she intended to persist to endeavour to speak to the Vice Chancellor.

12 Then on 15 September 2003, Ms Paramasivam went again to the Vice Chancellor's Office, but the Vice Chancellor was overseas. She was asked to leave the grounds of UNSW but refused to do so. The New South Wales Police were called by staff of UNSW. Ms Paramasivam still refused to leave the grounds, so she was arrested and charged with a breach of s 4(1)(A) of the Inclosed Lands Protection Act 1901 (NSW). She subsequently pleaded guilty to that charge but no conviction was recorded. 13 Ms Paramasivam attended the Vice Chancellor's office again on 10 November 2003. The Vice Chancellor again was not available. Again, she refused to leave the grounds when requested and again the police were summonsed and she was removed from the premises. A charge of a contravention of s 4(1)(A) of the Inclosed Lands Protection Act 1901 (NSW) was subsequently dismissed. 14 As a result of a written communication, it was arranged for Ms Paramasivam to see the Vice Chancellor on 1 October 2004. That meeting took place and her grievances were discussed. Apparently the discussion did not, to her mind, satisfactorily resolve her grievances. After the meeting she left the grounds. She was requested not to endeavour to see the Vice Chancellor again about her grievances. 15 However, Ms Paramasivam did try to see the Vice Chancellor of UNSW again on 22 and 29 October 2004. On each occasion she was asked to leave the grounds but refused to do so. The police were called, but she still declined to leave the grounds and so was again arrested on each of those occasions and charged with breach of s 4(1)(A) the Inclosed Lands Protection Act 1901 (NSW). She was found guilty of both charges.

THE DECISION OF HREOC 16 Ms Paramasivam, appropriately, first directed her complaint of wrongful discriminatory conduct for reasons of her race or ethnic origin to HREOC. It duly conducted certain inquiries into her complaint. 17 On 30 November 2006 the President of HREOC, by his delegate, terminated the complaint under s 46 PH(1)(c) of the HREOC Act because it was lacking in substance. That is the fact upon which the jurisdiction of the Court is enlivened: see s 46PO(1). 18 The delegate of the President of HREOC concluded that Ms Paramasivam had provided insufficient evidence to support her claim that UNSW had called the NSW Police on the four occasions referred to because of her Sri Lankan ethnic origin or that, in relation to calling the police, its staff had engaged in wrongful discrimination. She concluded that the material indicated that the staff had called the NSW Police because Ms Paramasivam had been asked to leave the grounds of UNSW and had refused to do so. The calling of the police was not because of her dress (that is, that she was wearing her sari) on the first three occasions, nor because of her Sri Lankan ethnic origin. The delegate concluded that Ms Paramasivam had not provided any information to support her claim that that had occurred because of her Sri Lankan ethnic origin. 19 In addition, it was pointed out in the reasons of the delegate that Art 5 of the ICERD did not appear to entitle her to refuse to leave private property such as the grounds of UNSW in any event. 20 She concluded: Based on all of the information and documents before me, I am satisfied that your complaint of racial discrimination against UNSW is lacking in substance and I have decided to terminate your complaint on that basis pursuant to s 46PH(1)(c) of the HREOCA.

THE DECISION AT FIRST INSTANCE 21 The application to the Court must concern the same, or substantially the same, alleged unlawful discrimination as was the subject of the terminated complaint, or must arise out of the same or substantially the same acts omissions or practices as were the subject of the terminated complaint: s 46PO(3) of the HREOC Act. 22 Certain parts of her application to the Court might be taken as indicating that Ms Paramasivam was seeking to allege unlawful discrimination against UNSW for more extensive conduct. The details of her claim included a claim for a declaration that she is an owner of UNSW, and that it be reprimanded for failing to facilitate or uphold and value "the discovery of Truth through Research & Education on the basis of Equal Opportunity Principles", and for compensation for her loss of professional goodwill. They also included allegations against entities which were not parties to the application. 23 However, other parts of the application indicated that her claim of unlawful discrimination on the basis of her race and ethnic origin was confined (as s 46PO(3) of the HREOC Act requires) to the four occasions when she then was charged and prosecuted for having sought to "wait peacefully" to see the Vice Chancellor. It appears that, at first instance she regarded her application as so confined, and she explicitly said that was the case on the appeal. 24 His Honour referred to the evidentiary material, which included the notice of termination by HREOC of the complaint, and the reasons for it, as well as extensive material provided by Ms Paramasivam. He recorded the nature of the complaint to HREOC and referred to the reasons of the delegate of the President of HREOC for terminating the complaint. He then referred briefly to the earlier history of Ms Paramasivam's various actions taken arising from the circumstances of her employment with UNSW coming to an end in 1999. 25 The judge at first instance then identified the essence of Ms Paramasivam's complaint (which she confirmed in her submissions on appeal) and the applicable law in the following terms: 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.

26 After referring to the terms of s 31A(2) of the FCA Act and its application, including the need to exercise caution before summarily disposing of a proceeding, his Honour concluded: 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. 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. 27 Consequently, the motion was successful, the proceeding was dismissed, and Ms Paramasivam was ordered to pay the costs of UNSW in respect of both her application and the motion for summary judgment.

THE GROUNDS OF APPEAL 28 The notice of appeal contains 15 grounds of appeal, of which the second contains 18 separate "procedural breaches". It is a lengthy document, and somewhat difficult to follow, and in part it is simply argumentative. 29 Ms Paramasivam's first written submissions in support of her appeal provide a somewhat clearer focus to her contentions. It is convenient to set out the way in which she there describes the issues on the appeal. They are, in respect of "interlocutory issues": 1. Whether or not the hearing before the primary judge was within the boundaries of interlocutory proceedings. 2. Whether discretionary powers were used to suppress objective evidence made available to Court and before facilitating subjective evidence by experts independent of the respondent and judge. 3. Whether the appellant's competence in Court process was compared with the respondent's through the current matter objectively and/or through the history of the matter subjectively. and in respect of "final issues" 4. Whether the primary judge approached the matter with a closed mind due to pre-existing knowledge, conclusion and natural prejudices resulting from the vested interest of the judge's profession. 5. Whether the primary judge considered all of the evidence presented, including the objective evidence, and consequently whether his Honour had authority to use his discretionary powers. 6. Whether the primary judge remained independent in assessing the evidence or whether he created evidence in favour of the respondent. 7. Whether the primary judge exceeded his jurisdiction by dealing with the question of security for costs after summarily dismissing the application. 8. Whether the evidence establishes unlawful racial discrimination on behalf of the respondent. 9. Whether the Court finds the appellant's claims to be just. 30 Those grounds are not precisely in the words used by Ms Paramasivam, but they accurately reflect the matters which she has expressed removing some repetition and some grammatical irregularities. There is obviously overlap in those contentions. They can be put into the following categories: whether the decision on the evidence to grant summary relief was correct; whether it was appropriate to assess the evidence to support an assertion of wrongful discrimination on the motion to summarily dismiss the proceeding; whether Ms Paramasivam was accorded procedural fairness; that the judge at first instance did not approach the hearing with an open mind; and finally a misconceived issue about a "security for costs" order. 31 In the notice of appeal, there is one matter which merits separate reference. His Honour at first instance referred briefly to a claim by Ms Paramasivam that she was entitled to a declaration that she is "the" owner of UNSW. She complains that she only sought an order in terms of being "an" owner of UNSW. Nothing turns on that difference. It relates to the relief claimed by Ms Paramasivam if she were to succeed in her application. The decision at first instance was that she would not succeed on the application. If she succeeds on this appeal, it would be necessary to remit the matter for re-hearing. In that event, any misunderstanding about the nature of the relief she claimed (assuming she may be entitled to that relief) can be addressed. 32 As noted in [5], Ms Paramasivam's main point on the appeal was that the conclusion of his Honour that the evidence does not, at its highest, provide any support for the view that she was treated unlawfully because of her race, colour or ethnicity was simply erroneous. 33 We shall address that contention first. 34 It is clear enough that his Honour proceeded on the basis that Ms Paramasivam believes that she was treated by the staff of UNSW on the four occasions referred to by reason of her dark complexion and her Sri Lankan ethnicity. That, his Honour said, was not by itself sufficient to show an arguable case of wrongful discrimination. In her oral submissions Ms Paramasivam appears to have accepted that. She did not contend that the authorities relied upon by his Honour, as discussed in the passage quoted at [25] above, were erroneous or that his Honour has misapplied or misunderstood them. She said there was supporting material which objectively showed or could show that the reason or one of the reasons for her treatment by UNSW staff on those four occasions was her race or her Sri Lankan ethnicity. She identified five pieces of evidence which, she submitted, had that character.

35 In our view, none of that evidence could reasonably be taken to support a finding that the staff of UNSW engaged in the conduct referred to on the four occasions or any of them because of her Sri Lankan ethnicity or anything associated with it. That is so whether one looks at the evidence in total or separately. 36 Four of those pieces of evidence are the four NSW Police Facts Sheets relating to the charges laid on each of the four occasions referred to. Three record Ms Paramasivam's nationality as Sri Lankan and the fourth relating to 29 October 2004 (which Ms Paramasivam said was the occasion she was dressed in a suit) as an Australian national. Contrary to what Ms Paramasivam said, each records the informant as a named police officer. She said the informant was UNSW, but she explained that she meant UNSW was the complainant. There is nothing to attribute to any staff of UNSW the recorded nationality of Ms Paramasivam on the fact sheets. Ms Paramasivam said that the police must have been called by UNSW staff on each of the four occasions, but she did not hear those calls and could not say what was said by any staff of UNSW during them. In any event, the recording of a nationality on the fact sheet, whether accurate or not, does not support the conclusion that the conduct of UNSW in requesting Mrs Paramasivam to leave the grounds, or in calling the police to remove her when she had refused to leave voluntarily, was engaged in for a reason relating to her Sri Lankan ethnicity. Each fact sheet contains a section headed "Full Facts". Assuming in Ms Paramasivam's favour that all the information recorded in those fact sheets was provided by staff of UNSW, there is nothing in that section of any of the fact sheets which could support the conclusion that the staff of UNSW engaged in that conduct of calling the NSW Police or in asking that she be removed from the grounds of UNSW for a wrongful discriminatory reason. 37 Nor did Mrs Paramasivam point to anything said to her or done in relation to her by any UNSW staff on any of those four occasions which could support such a conclusion. 38 The fifth piece of evidence relied on was an exchange between her and a member of the Administrative Decisions Tribunal of New South Wales during its hearing, recorded in a decision of the Appeal Panel of that Tribunal of 21 February 2003. To describe that evidence in that way is to expose why it could not support the conclusion that the staff of UNSW wrongfully discriminated against her on any one of the four occasions referred to. It did not relate to conduct of UNSW staff. She said it was part of a wider picture, but the focus of the Court at first instance and on appeal must be whether the particular alleged wrongful discrimination is (or having regard to the terms of s 31A(2) of the FCA Act, might have been) made out. 39 On that primary contention, for those reasons we agree with the judge at first instance. The evidence relied on by Ms Paramasivam does not provide any support for the conclusion that she was wrongfully discriminated against by reason of her race, colour or ethnicity on any of the occasions of 15 September 2003, 10 November 2003, 22 October 2004 or 29 October 2004. Consequently, his Honour was entitled to conclude on the material that Ms Paramasivam had no reasonable prospect of successfully prosecuting her application, and to dismiss it under s 31A of the FCA Act. The judge at first instance assumed, as we do, that Ms Paramasivam genuinely believes that on those occasions she was treated by staff of UNSW as she was by reason of her ethnicity, but there is no evidence which supports that conclusion as a matter of fact. 40 As Ms Paramasivam did not abandon her grounds of appeal and her written submissions provide other contentions to set aside the judgment at first instance, it is necessary to refer to them. Their refinement in the written submissions is set out at [29] -[30] above. 41 In our view, his Honour did not err in entertaining the motion of UNSW under s 31A(2) of the FCA Act that the claim be summarily dismissed, or in summarily dismissing the claim having regard to the evidence on the motion,. Indeed, he was obliged to entertain the motion as it had been brought. No argument was presented that his Honour misunderstood or misapplied the test prescribed by s 31A(2) on the hearing of the motion. It is within the compass of s 31A(2) that an assessment may be made, as a matter of fact, that an applicant has no reasonable prospect of successfully proving each of the facts necessary to perfect the elements of the cause of action. Even under the more stringent test prescribed by O 20 of the Federal Court Rules 1976 (Cth) as in force before s 31A came into force and as it applied to proceedings instituted before 1 December 2005, summary dismissal could be ordered where there was no real evidence to support the factual elements of a claim as well as where the claim was legally untenable: see e.g. Webster v Lampard (1993) 177 CLR 598. 42 Nor, in our view, can it be said that Ms Paramasivam did not have the opportunity to present on the hearing of the motion of UNSW such evidence and arguments as she considered appropriate. Her application was supported by an affidavit with exhibits. It was received in evidence on the motion. She was given an opportunity to provide further affidavit evidence in response to the affidavit evidence of UNSW on the motion. She took up that opportunity. That further affidavit and its exhibits was also received as evidence on the motion. She deposed in that affidavit to being ready to proceed to trial. She was permitted to cross-examine the deponent of the affidavit evidence relied on by UNSW. At the hearing on 5 April 2007, Ms Paramasivam was given leave to file further written submissions in the light of the submissions of UNSW. Again she took up that opportunity. Her written submissions included various annexures which the judge at first instance considered. There was also no application by Ms Paramasivam to be allowed further time to adduce any more evidence, or any attempt by her to adduce any more evidence. 43 The cross-examination was curtailed because Mrs Paramasivam asked questions which were disallowed as they were not clear (e.g. "Do you agree with my definition of 'fact' that fact is truth bound by the environmental limits in which it is born?") or because they were unhelpful in asking about matters on which there was common ground, or were too general, or were irrelevant to the issues arising on the application. Although there is a hint in the written submissions that Ms Paramasivam complains that she was improperly not permitted to cross-examine, the transcript reveals that the questions which were disallowed for those various reasons were properly disallowed. We note also that the witness being cross-examined was a solicitor whose affidavit was simply a means of putting before the Court documents said to be relevant. He did not give any direct evidence of what took place on any of the four occasions the subject of the application. He had not been present on any of those occasions. 44 The written submissions contend that the judge at first instance approached the application with a closed mind. There is nothing to support that suggestion. The recital of the course of evidence and submissions indicates that his Honour gave Ms Paramasivam a full opportunity to present her case and to understand and respond to the case of UNSW. It does not in the smallest degree indicate an inappropriate judicial attitude to a particular party's case to disallow irrelevant or unhelpful cross-examination. Ms Paramasivam refers to a comment of his Honour made in the course of submissions, which is in terms a question to ensure an understanding of the submission of UNSW; it is not an expression of a concluded, or even of a provisional, view about the nature of the evidence. It is as follows: HIS HONOUR: You say looking at the evidence as a whole, there's not a skerrick of evidence that that's the case. MR MATTSON: Correct. This complaint on the part of Ms Paramasivam has no merit. 45 The reference in the written contentions to an order for "security for costs" appears to be an error. No order for security for costs was made. A costs order was made when the application of UNSW for summary judgment was successful. There is no separate contention that it was made beyond power or improperly. Nor, in the circumstances, could there be. The judge at first instance did, at [17] of his reasons, say that if the proceeding had not been summarily dismissed he would have made a modest order for security for costs. As the proceeding was summarily dismissed, and that decision is to be upheld on appeal, it is not necessary to consider that matter further. 46 The above reasons address generally the various matters raised by Ms Paramasivam on the appeal. As appears from those reasons, her appeal should be dismissed. We consider that costs should follow the event, so that she should also pay the costs of UNSW of the appeal. 47 Much of the evidence on the motion related to matters which are extraneous to Ms Paramasivam's current application and appeal, except possibly as providing background to it. Those matters include the circumstances in which her employment with UNSW came to an end, her personal and professional qualities, and her complaint of racial discrimination made against the NSW Police. We have not needed to address that material in any detailed way to resolve this appeal. We are not to be taken as expressing any view about that material or the separate issues to which it might have given rise.

48 The appeal is dismissed with costs. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield, Jacobson & Middleton.

Counsel for the Appellant: The appellant appeared in person

Human Rights and Equal Opportunity Commission Act 1986(Cth)

Federal Court Rules 1976(Cth)

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