Trapman v Sydney Water Corporation & Ors [2009] FMCA 942

1. In one case, it is so lacking in probative value that it ought not to be entertained.

1. The applicant was employed by Clexan Peak Personnel Pty Limited, a labour hire company that provided labour to Sydney Water Corporation. He claims that over two periods of employment in 2006 and 2007 he was the subject of a number of instances of discrimination on the basis of his Aboriginal race.
2. He made complaints to the Human Rights and Equal Opportunity Commission (HREOC) on 29th June 2007, in the form of two statements, dated 16th May and 27th June 2007. The complaints were made against Clexan Peak, Sydney Water and the other four respondents.
3. On 27th June 2008 HREOC terminated the complaint. The delegate of the President of HREOC was satisfied that there was no reasonable prospect of the matter being settled by conciliation and terminated the complaint under s 46PH(1) of the HREOC Act.
4. The applicant then commenced proceedings in this Court against Clexan Peak and the five current respondents. After mediation before a Registrar of the Court, the applicant reached agreement with Clexan Peak and the application was discontinued against that respondent.

1. The current respondents submit that the particulars of the applicant's claim against them, set out in a letter from his solicitor dated 21st August 2009, which is now Exhibit 1, contain twelve separate claims ((a)(i)-(xii)), seven of which are outside the jurisdiction of the Court.
2. The Court's jurisdiction is governed by s 46PO(3) of the HREOC Act, which provides:
   • (3) The unlawful discrimination alleged in the application:

(a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or

(b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.

1. Counsel for the respondents has referred the court to a number of authorities as to the effect of this provision, being Charles v Fuji Xerox Australia Pty Ltd[1] at [37]-[40]; Vijayakumar v Qantas Airways Limited[2] at [95]-[96]; Gama v Qantas Airways Limited[3] at [9]; Hollingdale v Northern Rivers Area Health Service[4] at [11]; Travers v State of New South Wales[5] at [8].
2. Counsel for the respondents, Mr Shariff, provided a useful schedule of the allegations advanced which were the subject of the original complaint and submitted that by the time of termination, the complaint had assumed the shape of Particulars 2, 5, 7 and 10 (Exhibit 1, (a)(ii), (v),(vii) and (x)). It is only these four, he submits, that are within the jurisdiction of the Court.
3. He went on to submit that particulars 3,4,6 and 9 (Exhibit 1(a)(iii),(iv),(vi) and (ix)) never comprised part of the complaint to HREOC. Further, particulars 1 and 8 ((a)(i) and (viii)), whilst originally referred to, were never advanced as complaints. Finally, particular 11 ((a)(xi)) was "so vague and lacking in probative value" that it was not the subject of the Termination Notice, nor was particular 12 ((a)(xii)).
4. Counsel for the respondents submitted that particulars 3, 4, 6 and 9 ((a)(iii), (iv), (vi) and (ix)) were not the subject of the Termination Notice and, accordingly, the Court does not have jurisdiction to deal with them.
5. As to particulars 1 and 8 ((a) (i) and (viii)), it was submitted that the applicant never relied on either incident as an act of discrimination and neither incident was referred to in the Notice of Termination.
6. Accordingly, the submission is that neither in the complaint documents themselves nor in the shape of the complaint as it existed by the time of the Notice of Termination were these matters considered to be within the ambit of the complaint (Travers v State of New South Wales[6] at [8]). Thus, they were not the subject of the terminated complaint within the meaning s 46PO(3) and, accordingly, the Court does not have jurisdiction to deal with them.
7. Again, regarding particulars 11 and 12 ((a)(xi) and (xii)), it was submitted that neither one was the subject of the terminated complaint, and, accordingly, the Court does not have the jurisdiction to deal with them.
8. Further, as to 11 ((a) (xi)), the respondents submit that all it did was to make a vague allegation against an unidentified person. Thus, it could not be of any probative value. It is well established that racial discrimination is a serious matter which is not lightly to be inferred (see _Department of Health v Arumugam[7]_at 331). It was also submitted that the Court must reach a state of satisfaction on the basis of cogent evidence, not inexact and vague proofs, relying on Sharma v Legal Aid Queensland[8].

1. Ms Goodchild of counsel, who appeared for the applicant, submitted that this was a case of, amongst other things, systemic discrimination against Mr Trapman by Sydney Water and that the evidence would show a pattern of discriminatory treatment. She submitted that there was a demonstrable link between the allegations in the applicant's complaint and the more extensive matters raised in the case. She relied on the decision of McInnis FM in Bender v Bovis Lend Lease Pty Ltd[9].
2. Further, it was submitted that s 46PO(3) is not constrained by what is written in a Notice of Termination. The complaint is not limited by what the Notice of Termination says. The practice of Sydney Water and the general practice is sufficiently particularised in the applicant's two statements.
3. Specifically, as to particular 1 ((a) (i)), it mattered little that this ground did not appear to have been pressed as a complaint in the original statement. As to particular 3 ((a)(iii)), the alleged discriminatory complaint about the applicant's work performance, it is a complaint against Sydney Water and should be considered as part and parcel of his overall complaint. A similar argument was made about particular 4 ((a) (iv)).
4. As to particular 6 ((a) (vi)), this was an allegation of discriminatory conduct in the workplace. It is a particular of a general complaint about Sydney Water as a workplace.
5. Again, the Court was referred to the decision of Raphael FM in Gama v Qantas Airways Limited[10] at [9].

1. The first point that needs to be made is that the respondents' submission is one relating to preliminary objections to jurisdiction. It is not an application for summary dismissal or a submission that there is no case to answer.
2. In my view it is necessary to deal with each of the particulars subject to challenge. In doing so, I intend to follow the decision in Gama, which I consider, with respect, contains a helpful summary of the law. In Gama at [9], Raphael FM referred to the decisions in Charles v Fuji Xerox Australia, Travers v State of New South Wales, and Bender v Bovis Lend Lease[11] and said:
   • What one can extract from these decisions is that a party can make an allegation that a particular act referred to in the complaint constitutes a different breach of an Anti-Discrimination Act than that originally alleged or possibly even considered by HREOC. It is also clear that what constitutes the "complaint" is not just the written document but all those facts and matters which are before the Commission prior to the determination. But the allegations made in proceedings cannot be substantially wider or begin substantially earlier than those initially complained of. The purpose of the preliminary consideration of a complaint by HREOC is to try and resolve issues without the necessity for court intervention...There must be a close connection between what was told to the Commission and what is alleged in the court proceedings.[12]
3. Particular 1 is described in (a)(1) of Exhibit 1, the applicant's solicitor's letter, as:
   • The incident whilst the Applicant was working with Greg Priestley (affidavit of Trapman 15 December 2008 paragraph 12). Mr Trapman was working with Greg Priestley at Terrey hills in November 2006. A man named John who was a co worker made a comment to the Applicant about seeing a lot of "Abos" in the paper. He said words to the effect of "There's a lot of Abos in the paper".
4. This incident was referred to at paragraph 20 of the applicant's statement to HREOC of 16th May 2007. However, it was not pressed as a complaint. On the contrary, the applicant set out how Mr Priestley took the man to task about his use of that discriminatory word and stated:
   • If he could do that I don't know why the other supervisors used discriminatory language and terms themselves...it goes to show that if the supervisors clamped down on racist abuse in terms then people can talk about race and culture without offending people.
5. In my view, this is not a complaint but an example of proper behaviour by Mr Priestley, who was held up as an exemplar of what should be done. The claim is one where the Court does not have jurisdiction.
6. Particular 2 ((a)(ii)) was not the subject of an objection to jurisdiction.
7. Particular 3 is described in Exhibit 1 (a)(iii) as;
   • A short time later a Sydney Water Corporation manager Sunda turned up at the Pymble site and said words to the effect of 'your work performance is not up to standard' and informed Mr Trapman that the complaint came from somebody in his gang. It is inferred it came from Mark Davies.
8. This claim was not referred to in either of the applicant's statements to HREOC, nor was it referred to in the Notice of Termination. I am satisfied that it was never the subject of a complaint to HREOC and accordingly the Court has no jurisdiction to hear it.
9. Particular 4 is described in Exhibit 1 (a)(iv) as;
   • Whilst working on a pipe cracking machine at Pymble (Trapman affidavit paragraph 16) the Applicant alleges he was excluded from instruction on use of the pipe cracking machine by the Third Respondent. He further alleges he was excluded from the companionship of his workmates whilst working in the same gang at Lane Cove.
10. This claim was not referred to in either of the applicant's statements to HREOC, nor was it referred to in the Notice of Termination. I find that it was never the subject of a complaint to HREOC and the Court has no jurisdiction to hear it.
11. Particular 5 ((a)(v)) was not the subject of an objection to jurisdiction.
12. Particular 6 is described in Exhibit 1 (a)(vi) as:
    • Jimmy Dimetria an employee of the Second Respondent[13] said words to the Applicant within the hearing of the other workers 'How come all the black fellas drink and you don't drink?' and words to the effect of 'How come you're a good worker and all the other black fellas aren't?'. It is alleged that Jimmy Dimetria regularly called the Applicant Mr Trapman a 'black bastard' [or] a 'black cunt' (Trapman affidavit paragraph 19).
13. This claim was not referred to in either of the applicant's statements to HREOC, nor was it referred to in the Notice of Termination. I find that it was never the subject of a claim to HREOC and the Court has no jurisdiction to hear it.
14. Particular 7 ((a)(vii)) was not the subject of an objection to jurisdiction.
15. Particular 8 is described in Exhibit 1 (a)(viii) as:
    • Sydney Water General Manager, Graham Turner, in late January 2007 said to the applicant 'congratulations you got your job back, probably best to forget about what happened in 2006'.
16. This matter was referred to in the applicant's first statement to HREOC and I am disposed to accept it as a complaint about Sydney Water. I am satisfied the Court does have jurisdiction.
17. Particular 9 is described in Exhibit 1 (a)(ix) as:
    • February - April 2006 the Fifth Respondent John Kovac a supervisor of the Second Respondent would routinely refer to persons of different race and skin colour in the presence of the Applicant as 'black bastards'.
18. In my view, this is not a separate claim but merely background to the applicant's other claims against Mr Kovac. The Court has jurisdiction to hear this matter.
19. Particular 10 (a)(x) was not the subject of an objection to jurisdiction.
20. Particular 11 is described in Exhibit 1 (a)(xi) as:
    • In May 2007 the Applicant was in the Yagoona depot when he saw a couple of co workers cleaning up the yard and went to help them. One of the co workers said words to the effect of 'here is a black man to help you clean up'. This was said in the Second Respondent's[14] yard in its depot within the hearing of other workers.
21. This was a claim made in the applicant's second statement to HREOC. It is objected to on the basis that it is a vague allegation concerning an unidentified person and not of any probative value. It was not referred to in the Termination Notice.
22. However, the Court is currently considering preliminary objection to jurisdiction and not a submission that there is no case to answer or an application for summary jurisdiction. No matter how slight the probative value of this claim may be, in my view it is a claim that is within the jurisdiction of the Court, not withstanding the fact that it was not referred to in the Notice of Termination.
23. Particular 12 is described in Exhibit 1 (a)(xii) as:
    • 30 May 2007 the Fifth Respondent[15] John Kovac said words to the effect of 'where the fuck have you been how come it has taken so fucken long.' The Applicant alleges the words said to him were said because of his aboriginality.
24. The submission by the respondents here is that whilst particular 12 was referred to in the applicant's second HREOC statement it was not part of the complaint in the shape that it took by the time of the Notice of Termination. The submission is that as it was not part of the terminated complaint within the meaning of s 46PO(3) of the Act the Court does not have jurisdiction to hear it.
25. In my view, there is nothing to show that the applicant abandoned this claim. In my view it is still a claim that is on foot and I find that the Court has jurisdiction to hear it.
26. Accordingly, I find that the Court has jurisdiction to deal with the matters contained in Particulars (a)(ii), (v), (vii), (viii), (ix), (x), (xi) and (xii) of Exhibit 1.
27. It follows that I find that the Court does not have jurisdiction to deal with the matters contained in Particulars (a) (i),(iii), (iv) and (vi) of Exhibit 1.
28. I make orders accordingly.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Scarlett FM

[1] [2000] FCA 1531; (2000) 105 IR 153

[2] [2009] FMCA 736

[3] [2006] FMCA 11

[4] [2004] FMCA 721

[5] [2000] FCA 1565

[7] [1988] VicRp 42; [1988] VR 319

[8] [2002] FCAFC 196

[9] [2003] FMCA 277

[12] [2006] FMCA 11 at [9]

[14] Sydney Water is now the First Respondent