Prins v News Corp Australia Pty Ltd - [2019] FCA 2002 - FCA 2019 case summary — Zoe

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Prins v News Corp Australia Pty Ltd

[2019] FCA 2002

Federal Court of Australia|2019-11-29|Before: Rangiah J

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Source facts

Court

Federal Court of Australia

Decision date

2019-11-29

Before

Rangiah J

Source

Original judgment source is linked above.

Judgment (31 paragraphs)

[1]

The application for leave to appeal is dismissed.
The applicant pay the respondents' costs of the application, excluding costs arising from their default in complying with Order 4 of the orders made on 3 September 2019, such exclusion to encompass their costs of preparing and filing written submissions. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

[2]

RANGIAH J: 1 The applicant, Sokhom Prins, has applied for leave to appeal from an interlocutory judgment of the Federal Circuit Court of Australia delivered on 6 December 2018. By that judgment, the Federal Circuit Court summarily dismissed a proceeding brought by Ms Prins. 2 In her proceeding, Ms Prins alleged that three journalists employed by the first respondent had engaged in conduct that contravened s 18C of the Racial Discrimination Act 1975 (Cth) (the RDA). That conduct comprised of: (1) The fourth respondent, Chris Merritt, sending an email to Ms Prins on 9 March 2017. (2) Mr Merritt writing an article and causing it to be published in The Australian and on its website on 10 March 2017. (3) The fifth respondent, Hedley Thomas, sending an email to Ms Prins on 10 March 2017. (4) The sixth respondent, Janet Albrechtsen, sending an email to Ms Prins on 11 March 2017. 3 The Federal Circuit Court dismissed Ms Prins' proceeding under r 13.10 of the Federal Circuit Rules 2001 (Cth) and s 17A(2) of the Federal Circuit Court Act 1999 (Cth) on the basis that she had no reasonable prospect of successfully prosecuting the proceeding. 4 Section 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) gives this Court jurisdiction to hear and determine an appeal from a judgment of the Federal Circuit Court exercising original jurisdiction under a law of the Commonwealth. However, s 24(1A) provides that an appeal shall not be brought from an interlocutory judgment unless the Court or a judge gives leave to appeal. 5 A summary judgment under r 13.10 of the Federal Circuit Court Rules is an interlocutory judgment: see Scott v Human Rights and Equal Opportunity Commission [2007] FCA 2055 at [16]; Dobson v Australian Postal Corporation [2013] FCA 320 at [7]; Rowe v Emmanual College [2013] FCA 939 at [13]; Dennis v Commonwealth Bank of Australia [2018] FCA 1908 at [9]. Further, s 24(1D)(ca) of the Federal Court of Australia Act provides that an order under s 17A of the Federal Circuit Court of Australia Act is taken to be an interlocutory judgment, requiring that leave to appeal be obtained: see Prior v Wood [2017] FCA 193 at [56]. 6 The Court has a discretion to grant leave to appeal from an interlocutory judgment, but generally leave will not be granted unless the decision in question is attended with sufficient doubt to warrant the grant of leave and substantial justice would result from a refusal of leave to appeal: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399; Minogue v Williams [2000] FCA 125 at [19]. Leave will more readily be granted where, as here, the interlocutory judgment effectively determines a substantive right: Décor Corporation at 400; Minogue at [19]. 7 In the proposed appeal, it would be necessary for Ms Prins to demonstrate some legal, factual or discretionary error on the part of the primary judge: see Dennis at [11] (and the cases cited therein). Accordingly, it will be necessary to consider her prospects of demonstrating appealable error. 8 Section 46PQ(1) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) allows a party to be represented by a person who is not a barrister or solicitor, unless the Court is of the opinion that it is inappropriate in the circumstances for the person to appear. In her application for leave to appeal, Ms Prins is represented by her husband, Dr Hendrick Prins. She was also represented by Dr Prins before the Federal Circuit Court.

[3]

The evidence before the primary judge 9 The primary judge's reasons for judgment noted that Ms Prins had relied upon two affidavits, including an affidavit consisting of the evidence in chief she proposed to give at the trial. 10 Ms Prins' affidavit alleged that The Australian newspaper had been engaged in a campaign since mid-2016 to remove or amend s 18C of the RDA. Ms Prins stated that proponents of the changes argued that change is essential for freedom of speech and is required by Australian community standards. Ms Prins stated that she had opposed changes to s 18C, and that: I have been referring specifically to those who want to change the law as "white racists" or similar, but only in the context of them campaigning to make it legal to offend, insult, humiliate or intimidate persons of other races or ethnic origin… 11 The primary judge observed that Ms Prins had sent a series of emails to Mr Merritt, Mr Thomas, Ms Albrechtsen and others at The Australian on 3, 9, 22 February 2017 and 7 and 10 March 2017. 12 Ms Prins' email of 3 February 2017 was sent to a number of people, including Mr Merritt and Mr Thomas, and headed, "Notice to The Australian: you are the enemy!" In it, Ms Prins said, "You support changes, making you the enemy in this respect". 13 On 9 February 2017, Ms Prins sent an email with the heading, "Bolt Guilty - White Hot Alert - Sec 18C shall not change" to a number of recipients, including Mr Merritt and Mr Thomas. She described the recipients as her "enemies", "white abolitionists" and "white racists". She signed off the email as, "Sokhom Prins (Ethnic Cambodian), Author". Ms Prins said that the email was posted widely on social media, including The Australian Facebook page. 14 Ms Prins' email of 22 February 2017 was sent to various recipients, including Mr Merritt, Mr Thomas and Ms Albrechtsen. The heading was, "Janet Albrechtsen . Riding with Deadly Thomas, Merritt and others - white racist posse". It stated, inter alia, "I fight for and support all minorities, the victims, overwhelmingly, of white racists". 15 Ms Prins sent emails to Mr Thomas and Ms Albrechtsen on 7 March 2017 headed "18C Reform plan hinges on pub test?? - A new white racist horror?". The emails described Mr Merritt, Ms Albrechtsen and Mr Thomas as part of a "white racist posse", and described Ms Albrechtsen as a "white racist". It stated that the respondents, "get turned on by the thought of the law permitting them to offend and/or insult". 16 On 9 March 2017, Mr Merritt sent a response to Ms Prins by email. Mr Merritt included that response in an article he wrote in The Australian on 10 March 2017. The full text of the article was as follows: Dear Ms Prins: Don't call me 'white', I will feel offended For quite a while now. I've been considering what to do about someone by the name of Sokhom Prins, who has been sending me; abusive emails. The theme of the correspondence has been consistent: I am a terrible person, and so are my colleagues Hedley Thomas, Janet Albrechtsen and a few others who have been writing regularly about section 18C of the Racial Discrimination Act. Normally I'm inclined to ignore correspondence that includes passages in capitals. Sections highlighted in yellow or pink are also a bit of a giveaway. But I've reconsidered. Sokhom Prins deserves a response because the moral vanity underpinning this sort of thinking is all too common among those who see nothing wrong with section 18C. When federal cabinet meets today to consider the fate of section 18C, those who are wavering should consider where they stand. Do they believe in the values that underpin this nation? Those values, for those in cabinet who might have forgotten, are based on free speech and equal treatment before the law. Is that where they stand, or do they line up with Sokhom Prins? Here's my reply to the latest email from this person: Dear Sokhom Prins, I do not usually respond to abusive emails, but in your case I will make an exception. I am offended and insulted on the basis of my race and ethnic background to be referred to as part of a white racist posse. I feel sure that my Tamil antecedents from southern India would share that opinion. Your actions in causing me to feel offended and insulted on the basis of my race and ethnic background are clearly based on ignorance. Yet they would still come within the terms of section 18C because under this law the only thing that matters is how I feel about what you wrote. You might not be aware of this, but I am particularly sensitive. My feelings are easily hurt. This might be unreasonable, but under section 18C that's your problem. Under this law, my hurt feelings are supremely important - far more important, in fact, than your right to freedom of speech. It also makes no difference whether my hyper-sensitivity is objectively unreasonable. I'm sorry, but that's the way it is. This should be sufficient to prove to you that the law you are defending is flawed, unreasonable and skewed in favour of self-indulgent cry babies like me. This, however, is your lucky day. Under the influence of the community standards of Australia - something that was drummed in to me by my migrant father - I have decided to toughen up, which I also recommend to you. I therefore have no intention of complaining to Gillian Triggs about your race-based abuse. However in future tirades could you please stop referring to me as "white" - remember, I'm very sensitive, unreasonable, easily offended and for now at least, I've got 18C on my side. Kind regards and thanks for reading The Australian. Chris Merritt 17 On 10 March 2017, Ms Prins responded to Mr Merritt's email, copying in Mr Thomas and Ms Albrechtsen. She also posted the email as a public comment on The Australian website in response to an article about the death of a cartoonist, Bill Leak. Her comment was headed, "Racist Bill Leak is dead, although he could shelter under 18D". 18 On 10 March 2017, Mr Thomas sent an email to Ms Prins saying: Dear Sokhom Prins Chris Merritt wrote a powerful and very direct rebuttal today to your ugly, defamatory rants, which included our friend and colleague Bill Leak. I respect your right to continue to make a fool of yourself. As you will respect my right to have freedom from loons and nutters. But can you please remove my email address from your spam, and leave me to (what you regard as) my appalling racism? It's a simple request. Please stop sending me your hateful, racist garbage. Alternatively, fuck off. Regards Hedley. 19 On 11 March 2017, Ms Albrechtsen responded to Mr Thomas' email, which she had been copied into. Ms Albrechtsen said: Well said, Hedley and Chris. I echo your sentiments. Sokhom, you have identified the wrong enemy. Best take off now. 20 On 29 March 2017, Ms Prins lodged a complaint with the Australian Human Rights Commission (the Commission), alleging that the respondents had breached s 18C of the RDA through Mr Merritt's email of 9 March 2017, the article published in The Australian and on its website on 10 March 2017, Mr Thomas' email of 10 March 2017 and Ms Albrechtsen email of 11 March 2017. She alleged that the emails were sent and the article published because of her racial or ethnic origin. 21 On 11 July 2017, acting pursuant to s 46PH(1)(c), the AHRC Act, the Commission terminated the complaint on the basis that it was lacking in substance and misconceived. The Commission found that there was no basis to contend that the respondents' conduct was engaged in "because of" the race, colour or national or ethnic origin of the applicant or others. 22 On 29 August 2017, Ms Prins commenced her proceeding in the Federal Circuit Court. She relied upon the emails and the article referred to in her complaint to the Commission. She alleged that she had suffered hurt, humiliation and distress and economic loss, for which she claimed compensation.

[4]

The judgment of the primary judge 23 The respondents' case upon the application for summary judgment was that Ms Prins had no reasonable prospect of demonstrating that the relevant acts were, "done because of [her] race, colour or national or ethnic origin" within s 18C(1)(b) of the RDA. They submitted that there was no evidence capable of supporting an inference that the emails and article were sent and published because of Ms Prins' race or ethnicity. 24 The primary judge accepted, for the purposes of the summary judgment application, that Mr Merritt knew that the applicant was Cambodian in origin. However, his Honour held that there was no basis upon which it could reasonably be concluded that Mr Merritt sent the email and published the article because of Ms Prins' race or ethnicity. His Honour found that there was evidence to the contrary. In particular, there was a robust public debate in which the parties were participating, the very subject of the debate being s 18C of the RDA and the tension between that provision and freedom of speech, and that Ms Prins' emails were provocative and in themselves objectively offensive. 25 The primary judge noted Ms Prins' reliance upon a passage from Toben v Jones (2003) 129 FCR 515 which stated, "the question is whether anything suggests race as a factor in the decision to publish the work in question". His Honour considered that although, in a very general and broad sense, it might be said that race or ethnicity was a factor in the decision to publish because it was inextricably connected with the subject matter of the debate, that was a different matter to publication "because of" Ms Prins' race. His Honour held that there was nothing in the emails or the article which indicated a connection with Ms Prins' race. 26 The primary judge held that Mr Thomas' and Ms Albrechtsen's case for summary judgment was even more compelling. 27 The primary judge held that Ms Prins had no reasonable prospect of successfully prosecuting her proceedings against Mr Merritt, Mr Thomas or Ms Albrechtsen. Further, as the alleged liability of the remaining respondents depended upon the liability of the journalists, the case against them could not succeed. 28 His Honour, accordingly, summarily dismissed the proceedings.

[6]

Apprehended bias and unfair trial 31 Ms Prins claims that there was "no justice" in the proceedings. She alleges both that the trial was conducted unfairly and that the primary judge exhibited apprehended bias. 32 There is a distinction between an allegation of an unfair trial and an allegation of apprehended bias: see RPS v R (2000) 199 CLR 620 at [11]. The former turns largely on whether the litigant has had a proper opportunity to advance his or her case. In contrast, the test for apprehended bias set out in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6] is whether, "a fair minded lay-observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide". 33 Ms Prins summarises her complaints about the conduct of the primary judge as follows: a. By agreeing to or providing prejudicial directions for my defence; b. By questioning whether I'm the real Applicant at the hearing on 27 March 2018; c. By side-lining the right of my Representative to speak on my behalf, through engaging in questions directed at me; d. By warning my Representative to "be careful"; e. By letting the Respondents get away with an abuse of process; f. By implying that I have no defence because the facts are undisputed; g. By saying that any advice on procedure "is not my job"; h. By not providing procedural fairness in my requests for the consideration of pro-bone assistance; i. By implying that the Respondents' application for dismissal will succeed, and therefore I won't be needing pro-bone legal assistance; j. By referring to me, dismissively, as "coming along" with an affidavit; k. By referring to my application as "some kooky application"; l. By implying that I should file "responsive" Affidavit material: para 30, and then making the dismissive comment, "away you go"; m. By not taking into account that time to be spent on preparation of the unnecessary Affidavit caused me severe prejudice, as I then had insufficient time to properly prepare my Outline of Argument, and prepare for the hearing on 27 March 2018; n. By implying that my pleadings will be improper; o. By his Honour's unqualified agreement that my amended statement of claim is "a complete mess"; p. By not properly explaining the practices and procedures to us relating to considering a dismissal action, the choices we have, in particular, that evidence is not required, and that the dismissal action will be judged on the assumption that the pleaded facts are correct, and by not giving us time, through a short adjournment, to consider the serious implications of this. (References to paragraph numbers omitted; emphasis and errors in the original.) 34 In addition, Ms Prins complains that his Honour yelled, "Rubbish! It's his freedom of expression, and not offensive". Further, Ms Prins complains that his Honour said, "The Commission carries out its functions very well." 35 I will consider each of these allegations.

[25]

Whether the primary judge failed to consider part of Ms Prins' case 78 The article written by Mr Merritt and published in The Australian in print and online on 10 March 2017 was entitled, "Ms Prins: Don't call me 'White', I will feel offended". The article was, in effect, comprised of two parts. The first part described the "abusive emails" sent by Ms Prins and concluded by posing some rhetorical questions for Federal Cabinet concerning reforms to s 18C of the RDA. The second part consisted of quoting in full Mr Merritt's email to Ms Prins of 9 March 2017. 79 The reasons for judgment of the primary judge at [19] set out in full Mr Merritt's email of 9 March 2017. His Honour continued: 20. The day after the fourth respondent sent that email an article appeared in The Australian authored by the fourth respondent. The fourth respondent's email was reproduced in that article. This article forms one of the publications in respect of which the applicant now sues. 80 The primary judge concluded, in relation to Mr Merritt's email and article: 44. I accept the respondents' submissions that the fourth respondent's email and the article are, self-evidently, contributions to the debate on the amendment of s.18C. The applicant responded to the fourth respondent's email by continuing the debate. I accept the respondents' submissions that there is no indication in either the email or the article either expressly or by necessary implication, that one of the reasons why the fourth respondent sent his email and wrote his article was because of the race or ethnic origin of the applicant. Nor is there, in any of the evidence filed by the applicant, any basis upon which a court could conclude that that one of the reasons why the fourth respondent sent his email and wrote his article was because of the race or ethnic origin of the applicant. 45. To put it another way, the applicant does not, and cannot prove on the balance of probabilities on the evidence she relies upon in this case, that the fourth respondent sent his email or published the article because of her race, colour or national or ethnic origin. Nor can she demonstrate on the evidence that it was even one of a number of reasons for those acts. 81 Ms Prins asserts that the judgment should be set aside, "As it contains the fatal flaw that it has not dealt with the major part of my cause of action, which is the first (and worst) part of the published article". Ms Prins also argues that his Honour should have considered the title of the article. Ms Prins submits that these errors stem from the "deception" of the respondents in referring in their submissions to only the second part of the article. 82 I do not accept that it is open to infer that the primary judge was unaware of, or did not consider, the first part of the article. The full article was before the Court. His Honour stated at [20] that, "The fourth respondent's email was reproduced in that article". That statement distinguished between the email and the article. His Honour also distinguished between the email and the article at [44] and [45]. That indicates that his Honour was aware that the email was only part of the article. 83 His Honour summarised Ms Prins' amended statement of claim at [29] as, inter alia, alleging that the respondents published the article; that Ms Prins found the article offensive, derisory, mocking of her and insulting; and that the respondents published the article because of her race, colour or national or ethnic origin. The amended statement of claim specifically set out the title of the article and analysed the article, including the first part, sentence by sentence. In my opinion, his Honour's references in his reasons to "the article" can only be understood as referring to the whole of the article, including the title. I do not accept that there is an arguable case that his Honour ignored, or was ignorant of, the first part of the article and the title. 84 There is no reasonable argument open to Ms Prins that the primary judge failed to consider her arguments in relation the first part of the article and the title.

[27]

Whether the primary judge erred in holding that Ms Prins had no reasonable prospects of successfully prosecuting her proceedings. 88 The primary judge ordered summary dismissal of Ms Prins' proceeding on the basis that she had no reasonable prospect of successfully prosecuting the proceeding. Rule 13.10 of the Federal Circuit Court Rules provides: 13.10 Disposal by summary dismissal The Court or a Registrar may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court or the Registrar is satisfied that: (a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or (b) the proceeding or claim for relief is frivolous or vexatious; or (c) the proceeding or claim for relief is an abuse of the process of the Court. 89 Section 17A of the Federal Circuit Court Act provides, relevantly: 17A Summary judgment … (2) The Federal Circuit Court of Australia 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. … 90 In her proceeding, Ms Prins alleged that the respondents contravened s 18C of the RDA. That provision provides, relevantly: 18C Offensive behaviour because of race, colour or national or ethnic origin (1) It is unlawful for a person to do an act, otherwise than in private, if: (a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and (b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group. … 91 Section 18C of the RDA must be read with s 18B, which provides that if one of the reasons for doing an act is the race, colour or national or ethnic origin of a person (whether or not the dominant or a substantial reason), the act is taken to be done because of the person's race, etc. 92 The reasons of the primary judge focussed upon the requirement of s 18C(1)(b) that, "the act is done because of the race, colour or national or ethnic origin of the other person or a group of people". His Honour proceeded upon an assumption that Ms Prins could establish the other elements of s 18C. 93 Ms Prins submits that the primary judge erred in finding that she had no reasonable prospect of demonstrating that the emails were written and the article published "because of" her race, etc. She submits that the primary judge's reasons make no reference to judicial precedents that allow race to be inferred. She submits that the relevant question is "whether anything suggests race as a factor in the decision to publish the work in question", referring to Toben v Jones. The fact that Mr Merritt's article is replete with references to race is said to indicate that race was a factor in the decision to publish the article, as is the reference to "racism" in Mr Thomas' email. This is asserted to be enough to satisfy s 18C(1)(b). 94 It is necessary to consider what is required by the words, "the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group", in s 18C(1)(b) of the RDA. 95 In Creek v Cairns Post Pty Ltd (2001) 112 FCR 352, Kiefel J (as her Honour was then) said at [28]: In the present case the question is whether anything suggests race as a factor in the respondent's decision to publish the photograph. Ms Prins submits this sentence indicates that the only question is whether anything suggests race as a factor in the writing or publication of the emails and the article. She submits that as the article is about race and contains a number of specific references to race, race was a factor in the decision to write the emails and publish the article, and s 18C(1)(b) of the RDA is satisfied. 96 However, the submission takes the sentence relied upon out of context. At [28] of Creek v Cairns, Kiefel J continued: The context of the article is of course, race, but merely to publish a photograph of a person involved in the story could not mean that considerations of race can be taken to have actuated the publication…rather the inquiry is whether the publication of a photograph showing the applicant's apparent living circumstances was motivated by considerations of race. In this paragraph, Kiefel J applied the approach taken by McHugh J in Waters v Public Transport Corp (1991) 173 CLR 349 at 400-401 that, "the [relevant attribute] of the victim must be at least one of the factors which moved the discriminator to act as he or she did". 97 In Toben v Jones, Kiefel J confirmed that, for s 18C(1)(b) of the RDA, a causal connection is required between the act and the motivation or intention of the person alleged to have done the act. Her Honour said: 63 The inquiry as to motive or reason is not however limited to the explanation a person might provide for their conduct or their genuine understanding as to what motivated them. The inquiry is as to the true reason or true ground for the action... A person whose conduct is complained of might not always be a reliable witness as to their own actions. Their insight may be limited. Their true reasons may however be apparent from what they said or did. In some cases there may be other circumstances which throw light upon the reason for their actions. 64 …It will in each case be necessary to carefully consider the statements or other conduct and any other relevant evidence with the inquiry of subs (1)(b) in mind and to determine if any apparent motives have the quality the legislation is concerned with. 98 In Toben v Jones, Carr J also confirmed the necessity for a causal connection: 30 In my view, as a general proposition, the words "because of" form the first part of a response to the question "why?" The questions in the present context were - why did the appellant publish the Document? - was one reason for such publication the ethnic origin of the groups…or some of the people in those groups? 31 The authorities on the issue of causation in the context of discrimination legislation were reviewed by Kiefel J in Cairns Post at [19]-[27]. It seems clear from what her Honour said at [22] that she regarded the assessment of a reason as being an objective one, but not one which excluded any evidence of the relevant person's intention or motive. Regard was to be had to all the circumstances. I respectfully agree with that approach. 99 Also, in Toben v Jones, Allsop J (as his Honour was then) said: 151 It is the reason or reasons for the act which must be discerned. Here the act was the publication of the Document. An investigation of the reason or reasons for the act will involve, as a matter of meaning and language, an inquiry into the explanation for the act or why the act was done… 100 In Hagan v Trustees of Toowoomba Sports Ground Trust (2001) 105 FCR 56, the Full Court said at [23]: 23 Section 18C(1) is not enlivened unless the relevant act is done "because of the race, colour or national or ethnic origin of the person or group likely to be offended by the act". As earlier indicated, the phrase "because of" requires consideration of the reason or reasons for which the relevant act was done. Counsel for Mr Hagan submitted that in discrimination legislation it is accepted that it is unnecessary for a complainant to prove motive or intention. Whether that be so or not, the expression "because of" in par (b) necessitates a consideration of the reasons for which the act in question was done. 101 It follows that it is necessary, under s 18C(1)(b) of the RDA, to determine whether the reason or a reason for the relevant act was the race, etc. of the person or group of people whom it is alleged will be offended, insulted, humiliated or intimidated. It is not enough that, in a general sense, the topic of race was a reason for the act.

[28]

Mr Merritt's email and article 102 I will commence by considering Mr Merritt's email and article. In the application for summary judgment, it was necessary for the respondents to demonstrate that Ms Prins had no reasonable prospect of proving that Mr Merritt's reason, or one of his reasons, for writing or publishing the email or the article was her race, etc. 103 In Spencer v Commonwealth of Australia (2010) 241 CLR 118, referring to a provision the equivalent of s 17A of the Federal Circuit Court Act, Hayne, Crennan, Kiefel and Bell JJ said: [59] In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like "clearly", "manifestly" or "obviously") as "frivolous", "untenable", "groundless" or "faulty". But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word "reasonable", in the phrase "no reasonable prospect", be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a "frivolous", "untenable", "groundless" or "faulty" claim. [60] Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is "no reasonable prospect" of success. 104 In discrimination cases, it is common for there to be no direct evidence of the reasons why the person did the relevant act: see Sharma v Legal Aid (Qld) [2002] FCAFC 196; (2002) 115 IR 91 at [40]. In such cases, the actor's reasons may be demonstrated by inference from the available evidence. 105 In Henderson v Queensland (2014) 255 CLR 1, Gageler J explained at [89] how a state of affairs can be demonstrated through by inference drawn from proven facts: Generally speaking, and subject always to statutory modification, a party who bears the legal burden of proving the happening of an event or the existence of a state of affairs on the balance of probabilities can discharge that burden by adducing evidence of some fact the existence of which, in the absence of further evidence, is sufficient to justify the drawing of an inference that it is more likely than not that the event occurred or that the state of affairs exists. 106 In G v H (1994) 181 CLR 387, Brennan and McHugh JJ considered what is meant by "inference" at 390: An inference is a tentative or final assent to the existence of a fact which the drawer of the inference bases on the existence of some other fact or facts. The drawing of an inference is an exercise of the ordinary powers of human reason in the light of human experience; it is not affected directly by any rule of law. 107 As Kitto J explained in Jones v Dunkel (1959) 101 CLR 298 at 305, there is a distinction between inference and mere conjecture: One does not pass from the realm of conjecture into the realm of inference until some fact is found which positively suggests, that is to say provides a reason, special to the particular case under consideration, for thinking it likely that in that actual case a specific event happened or a specific state of affairs existed. 108 In order for a particular state of affairs to be found, the facts proved must give rise to a reasonable and definite inference, not merely to conflicting inferences of equal degrees of probability, so that the choice between them is a mere matter of conjecture: Jones v Dunkel at 304 (Dixon J), Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155 at 161-162 (Stephen J), Trustees of the Property of Cummins (A Bankrupt) v Cummins (2006) 227 CLR 278 at [34]. 109 Ms Prins submits that Mr Merritt's article accused minorities of having the wrong values because they do not believe in free speech or equal treatment before the law. She submits that Mr Merritt was imputing or inferring that as she does not believe in his "white" values, she must believe in "non-white values". She submits that the reference in the article to "community standards of Australia" infers that minorities must be following the wrong community standards. 110 Ms Prins submits that the allegation in the article that she called Mr Merritt, Mr Thomas and Ms Albrechtsen "terrible persons" is a blatant lie. She submits that untruths directed at minorities are evidence of racism. She asserts that inferences which arise from the article give rise to further lies and untruths. 111 Ms Prins submits that the use of the words "toughen up" in the article suggests that she should toughen up to race-hate speech and that, if she does not, she is not complying with white Australian community standards. She submits that the repeated references to "white" raises an obvious inference that she cannot be white. 112 Ms Prins submits that the primary judge excused the statements in the second part of the article as being in the context of the debate about s 18C of the RDA. She submits that, in truth, the purposes of the article were to insult her by mocking her and to discourage minorities from bringing complaints under s 18C. 113 I will consider whether the primary judge erred in concluding that Ms Prims had no reasonable prospect of proving that her race, etc. was a reason why Mr Merritt sent his email and published his article. 114 As the primary judge observed, the dispute between Ms Prins and the journalists arose in the context of a public debate about whether s 18C of the RDA should be amended to at least remove the words "offend", "insult" and "humiliate". Mr Merritt, Mr Thomas and Ms Albrechtsen advocated through The Australian for amendment on the basis that the current provision is inconsistent with Australian values of freedom of speech and equal treatment before the law. Ms Prins advocated against any amendment on the basis that it would promote public expression of racial hatred, inconsistently with Australian values. 115 Ms Prins' advocacy included writing emails to Mr Merritt, Mr Thomas and Ms Albrechtsen at The Australian. Her emails contained statements that she plainly intended to be offensive and insulting to the journalists. She called them, among other things, "white racists" and accused them of getting, "turned on by the thought of the law permitting them to offend and/or insult". Perhaps Ms Prins failed to see the irony of opposing amendments that would allow the making of offensive and insulting comments based on race, while feeling free to make offensive and insulting comments based on the journalists' race or imputed race. Perhaps she did see the irony, and sought to expose the journalists to what she thought could be the consequences of the amendments they were advocating for. 116 Against this background, there were obvious reasons for Mr Merritt writing and publishing the email and article. Those reasons were revealed in the content of the email and article. They were to expose what Mr Merritt considered to Ms Prins' hypocrisy and to demonstrate that her freedom to publically insult and offend him on the basis of his imputed race would be restricted under s 18C of the RDA in its current form had he chosen to complain to the Commission. 117 On the other hand, there is nothing in Mr Merritt's email or article that indicates that their writing or publication was actuated, in whole or part, by Ms Prins' race, colour or national or ethnic origin. They make no reference to Ms Prins' race, etc. While Ms Prins submits that references to her to her being "non-white", are to be inferred from language such as "the values that underpin this nation", "the community standards of Australia" and, "toughen up", that is too long a stretch. The submission invites mere conjecture or speculation, not inference. 118 Ms Prins' submission that evidence of racism arises from the "blatant lie" that she called the journalists "terrible persons" cannot be accepted. First, the article stated that the "theme" of the correspondence was that the journalists were "terrible persons", and it is plainly correct that Ms Prins' correspondence did have that theme. Second, even if it was a "blatant lie", that would not indicate any causal connection between the article and her race, etc. 119 Ms Prins may be correct to say that a purpose of the article was to mock her. However, any contention that the aim was to mock her because of her race cannot be sustained. The article suggests that her opinions on s 18C were without merit because of their content, not because of her race. Further, it cannot be seen that any purpose of the article was to discourage minorities from bringing complaints under s 18C - it was to advocate for amendments so that complaints could not be as readily brought. 120 There is nothing in Mr Merritt's email or article capable of giving rise to an inference that the reason or a reason for their writing and publication was the race, colour or national or ethnic origin of Ms Prins or any group of people. To the contrary, the only inference capable of being drawn from the evidence is that they were written and published for other reasons.

[29]

The emails written by Mr Thomas and Ms Albrechtsen 121 The primary judge dealt with the emails written by Mr Thomas and Ms Albrechtsen as follows: 47. The case for summary dismissal is even more compelling in respect of the fifth and sixth respondents. There is no evidence that the emails from each of them was sent because of the applicant's race, colour or national or ethnic origin. The applicant's case against these two respondents also relies upon the drawing of an inference that the reason or one of the reasons for them sending their emails was the applicant's race. There is simply no basis upon which one could come to that conclusion. The reason why the fifth and sixth respondents sent their emails is obvious on their face. They wanted the applicant to stop sending them emails. 122 Ms Prins submits that by Mr Thomas telling her to "fuck off" and Ms Albrechtsen telling her to "take off", they were implying that she should go away to another country. She submits that this gives to a rise to an inference that the emails were sent because of her race, etc. 123 Mr Thomas and Ms Albrechtsen were obviously telling Ms Prims to leave them alone and stop harassing them. I do not accept that their words are capable of being understood as telling Ms Prins to go away to another country. 124 Ms Prins also refers to an article written by Mr Thomas in The Australian on 18 September 2017. It was published after she made her complaint to the Australian Human Rights Commission. The article stated that, "Sokhom Prins is an Australian citizen who traces her ethnicity to Cambodia." She submits that the word, "traces" is an insult that "reveals a race-hate speech intention, and/or a racist mindset, and/or a racist motivation and was deeply offensive to me…". She asserts that to be said to "trace" one's ethnicity is deeply insulting to persons born overseas. She submits that his Honour erred in failing to find that this insult should be related back to Mr Thomas email of 10 March 2017. 125 I accept that the later conduct of a person may reflect their motivation or intention in having done an earlier act. However, I cannot see that saying someone "traces" their ethnic origins to a particular country can be regarded as an insult. It is a common and unremarkable form of speech. It fails to reveal any racially-based motivation for Mr Thomas' article or his email. 126 I agree with the primary judge that there is no evidence from which any inference is capable of being drawn that Mr Thomas' and Ms Albrechtsen's emails were sent because of the race, colour or national or ethnic origin of Ms Prins or any group of people.

[30]

Conclusion 127 Ms Prins has not demonstrated that her proposed appeal enjoys any reasonable prospect of success. Therefore, she has not demonstrated that substantial injustice would result from refusal of leave to appeal. The application for leave to appeal will be dismissed. 128 In the ordinary course, the respondents would recover their costs of the whole of the proceeding. There is, however, an exception that should be made. The respondents filed their outline of submissions well outside the time allowed under orders made on 3 September 2019. Their default resulted in a great deal of anxiety for Ms Prins and additional work for the Court's staff in trying to sort the situation out. I required the respondents' solicitors to file an affidavit explaining their default. They explained that they had failed to read the orders. This was not an isolated error. Before the Federal Circuit Court, the respondents' solicitors failed to file a "Response" until 20 days after the time required under the Federal Circuit Court Rules, apparently through "oversight". As the primary judge observed, this caused consternation for Ms Prins and significant additional work for the Court. 129 It is always important for lawyers to ensure that their clients comply with their obligations under orders made by the Court. It is particularly important when the opposing party is not legally represented. A failure to comply may not only be unprofessional, but tends to cause consternation and anxiety for a party unused to litigation. It results in the Court's resources being wasted in dealing with the consequences of that failure. It may be observed that a party who is not legally represented cannot recover costs for wasted effort in dealing with the lawyers' default. 130 In this case, it is appropriate to exclude from the order for costs, the respondents' costs associated with its default in complying with Order 4 made on 3 September 2019, including their costs of preparing and filing their written submissions. I certify that the preceding one hundred and thirty (130) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.