Wilson v Community and Public Sector Union

Background 7 Wilson is a man of Aboriginal descent. He was, for a period of time, employed by Australia Post. On his evidence, he left Australia Post's employ in "late 2006". Although the time during which Wilson worked for Australia Post is unknown, in an affidavit by Louise Persse (the Assistant National Secretary of the CPSU) it is deposed that Wilson's CPSU membership record states he was a CPSU member from 24 June 2003 until 28 January 2004. 8 According to Wilson's evidence, he had been "a victim of harassment, bullying, intimidation, being underpaid and suffering severe depression" while employed by Australia Post. He complained to Australia Post about these matters and, on being dissatisfied by Australia Post's responses, or the lack of them, he "engaged the CPSU for representation". The CPSU representative was Barnes who, according to Wilson, met with him to discuss the issues which he had raised and later informed him that Australia Post had agreed to meet with Barnes to discuss those issues ("the Meeting"). Wilson claims that he was not allowed to attend the Meeting with Australia Post. In Attachment B to the Notice of Termination, Wilson states that he was excluded from the Meeting by "APM", which the CPSU and Barnes submit is a reference to "Australia Post Management". The outcome of the Meeting was that Wilson was upgraded to the pay classification of Administrative Officer, Level 3 ("AO3"). Wilson claims that Barnes told him "it was the best I could do". Wilson also claims that, following the Meeting, he tried on a number of occasions to contact Barnes and the CPSU by email, telephone and in person. He claims that each time he tried to make contact with Barnes, he was told by other CPSU employees that Barnes was interstate but would contact Wilson when he was available. According to Wilson, Barnes did not contact him, but "after sending several letters to the head office of CPSU, I was informed there was nothing they could do." 9 In relation to the CPSU's powers and obligations towards its members, Louise Persse has deposed in her affidavit; The CPSU does provide assistance and representation to union members, upon request, concerning disputes or grievances they have with their employer, in this case Australia Post. Whilst CPSU officials strive to influence the employer to achieve a desired outcome, neither the CPSU, or its officials have power to direct employment decisions at Australia Post. The union has no power to require Australia Post to apply a particular work classification or rate of pay to a member. The power to do any of these things remains with Australia Post as the employer. The CPSU's role is confined to advising the member and, so far as it can, persuading the employer to adopt a course favourable to the member. Whether Australia Post adopts the course advocated by the CPSU is a matter for it. 10 Ms Persse went on in her affidavit to depose that, although Wilson has claimed to have attempted to make contact with Barnes and the CPSU following the outcome of the Meeting with Australia Post, she could find no record at the CPSU of any of the communications to which he referred.

Summary Judgment 11 The respondents rely upon s 31A of the Federal Court Act as the source of power to enter the summary judgment which they seek. So far as is relevant, s 31A provides; 31A Summary judgment (1) … (2) The Court 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. 12 In considering whether there is sufficient evidence available to the Court to find, on the balance probabilities, that Wilson has no reasonable prospect of successfully prosecuting the proceeding, I have had regard to the recent decision of the High Court in Spencer v Commonwealth of Australia (2010) 241 CLR 118, where the proper construction of s 31A(2) of the Federal Court Act has been considered. As well, several recent authorities in this Court provide useful guidance on the interpretation and application of s 31A. In Helal v McConnell Dowell Constructors (Aust) Pty Ltd [2010] FCA 1462, I referred to the reasons of Kenny J in Deputy Commissioner of Taxation v Southgate Investments Funds Limited [2010] FCA 1298, which adopted, at [22], the observations of Sundberg J in Adnunat Pty Ltd v ITW Construction Systems Australia Pty Ltd [2009] FCA 499, at [37], as indicating how s 31A should be applied. In my assessment of these proceedings I have also considered the useful summary provided by Gilmour J in Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 ("Dandaven") at [5] and [6] which was relied on by Foster J in Wang v Anying Group Pty Ltd [2009] FCA 1500, at [44]. In Dandaven, Gilmour J said: 5 Section 31A lowers the bar for obtaining summary judgment: White Industries Australia Ltd v Commissioner of Taxation (2007) 160 FCR 298. The second reading speech of the Migration Litigation Reform Bill 2005 which introduced s 31A stated that its purpose was to strengthen "the power of the courts to deal with unmeritorious matters by broadening the grounds on which federal courts can summarily dispose of unsustainable cases": Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 70 IPR 146 at [45]; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60 at [124]. 6 Success under s 31A does not require a demonstration that the case is hopeless or bound to fail. The following principles are of general application to an application under s 31A: (a) the Court must be very cautious not to do a party an injustice by summarily dismissing proceedings; (b) the Court ought not dismiss a claim based on a predictive assessment of prospects, where it is possible that if the claim went to trial, it may succeed; (c) in a case where evidence can give colour and content to allegations, and where questions of fact and degree are important, the Court should be more reluctant to dismiss a proceeding on the face of a pleading; (d) it is not Parliament's intention to require the Court to engage in lengthy and elaborate trials on an interlocutory basis for the purposes of determining whether or not a proceeding has no reasonable prospects of success. It may be necessary for the opposing party to provide no more than an outline of evidence, sufficient to show that there is a genuine dispute, to prevent the summary application becoming a trial; (e) if there is a real issue of fact or law to be decided, and the rights of the parties depend upon it, it is obviously appropriate that the matter goes to trial. It cannot be said that where there is a real factual dispute and that factual dispute must be resolved to determine whether the claim succeeds that there is 'no reasonable prospect of success'; (g) it ought not be used to shut out proceedings where, on a proposition of law, there may be room for doubt. On questions of law, an inquiry as to their merit should not be for the purpose of resolving them and also not simply to determine whether the argument is hopeless, but in order to decide if it is sufficiently strong to warrant a trial; (h) evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects; (i) in determining if there are real issues of fact in issue so as to preclude summary judgment the courts must draw all reasonable inferences in favour of the non-moving party. See Genovese v BGC Construction Pty Ltd [2007] FCA 923 at [5]; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 70 IPR 146 at [42]-[48]; Hicks v Ruddock (2007) 156 FCR 574 at [13]; Bond v Barry (2007) 73 IPR 490 at [46]; Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in Liq) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 at [30]; Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [21]; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008] FCAFC 60. 13 I have distilled from those principles enunciated by his Honour and the other authorities noted at [12] above the proposition that, if the materials available to the Court disclose no real issue of fact or law, Wilson's claim must be summarily dismissed as having no reasonable prospect of being successfully prosecuted against the CPSU or Barnes.

Consideration 14 It is apparent that Wilson was disappointed with the outcome of the Meeting, as he considered that he deserved a higher pay classification than that of AO3 which Australia Post was prepared to grant him. Although it is not entirely clear from the material advanced in support of the application, Wilson seems to suggest that Barnes had negotiated for him a lower pay classification than he desired or should have received, because Barnes had discriminated against him on account of his race. However, there is no further evidence of the way in which Barnes is alleged to have discriminated against Wilson and no proof that he engaged in any such discrimination. Accordingly, it was submitted by Mr Harding of Counsel for the CPSU and Barnes, that the matters put forward in evidence by Wilson are incapable of establishing either that Barnes jeopardised a better outcome which might otherwise have been available to Wilson or, if that allegation were true, that such conduct by Barnes had any connection with Wilson's race or racial background. 15 Contravention of s 9(1) of the RDA requires first a finding of an act "involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin" (emphasis added). It was pointed out by Mr Harding that the expression "based on" in that part of s 9(1) of the RDA, has been held to express a relationship of "sufficient connection", so that "there must be a close relationship between the designated characteristic and the impugned conduct": (Macedonian Teachers' Association of Victoria v The Human Rights and Equal Opportunity Commission (1998) 160 ALR 489, per Weinberg J, at 512). Although Wilson has asserted, in general terms, in his affidavit that Barnes discriminated against him because of his indigenous background, there is no evidence tending to support the existence of such a sufficient connection. Mr Harding also noted that Attachment B to the Notice of Termination made no mention of any racial discrimination on the part of Barnes or the CPSU but seemed rather to impute racial discrimination to Australia Post Management. 16 The second aspect of s 9(1) of the RDA is the requirement that the impugned act had the "purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life". In support of the motion it has been contended that, at its highest, Wilson's evidence is that Barnes failed to persuade Australia Post to do more than it was prepared to do. Thus, without more, that failure by Barnes to achieve a better outcome for Wilson could not have amounted to an act which had the purpose or effect of nullifying or impairing Wilson's rights or freedoms as recognised by Art. 5 of the Convention or otherwise. 17 In my view, if Wilson's rights or freedoms have been infringed at some point, that was not the result of any act or omission by Barnes or the CPSU. Wilson's evidence, which is vague at best, suggests that his real complaint is against Australia Post rather than the CPSU or Barnes. A review of the whole of the evidence affords no basis for any other finding in relation to Barnes' or the CPSU's conduct towards Wilson. Accordingly, Wilson has no reasonable prospect of establishing that either respondent has been guilty of conduct of the kind proscribed by s 9(1) of the RDA. 18 As I have found that there is no evidence to support a claim against the CPSU or Barnes for contravention of s 9(1) of the RDA, it is appropriate to consider any potential claim under s 13(1) of the RDA. That section, unlike s 9(1) of the RDA, requires that an applicant prove that the refusal of, or failure to provide, services, or the refusal of, or failure to provide, services except on less favourable terms or conditions, was "by reason of the race, colour or national or ethnic origin" of the other person (emphasis added). Mr Harding contended that the words "by reason of" in s 13(1) of the RDA "connote a relationship of cause and effect. It has been authoritatively so held." That is a more demanding test than the one prescribed by s 9(1) of the RDA: (Macedonian Teachers' Association of Victoria v The Human Rights and Equal Opportunity Commission (1998) 160 ALR 489 per Weinberg J at 510). 19 There is no evidence in the materials before me to support any finding that Barnes' actions in trying to assist Wilson, to advance his claim to a higher classification within Australia Post, amounted to a refusal or failure to provide services. Nor does any evidence suggest that the services provided to Wilson by Barnes were of a lesser quality than would otherwise have been provided to other CPSU members. Further, there is no evidence that, had there been a refusal or failure to provide services, or the provision of services of a lesser quality than would have been provided to other CPSU members, such conduct would have been "by reason of [Wilson's] race, colour or national or ethnic origin". 20 In relation to the claims by Wilson noted at [2] above that Barnes and the CPSU failed to contact Wilson or return his calls following the Meeting, it is the evidence of Louise Persse that the CPSU has no record of the contact Wilson claims to have made and no record of the letters he says that he sent to the CPSU. In any event, Mr Harding contended, even if Wilson did make contact with the CPSU in the ways he claims, there is no evidence to suggest that the failure by the CPSU or Barnes to respond to that contact was in any way connected to Wilson's race, colour or national or ethnic background, let alone that it was "based on" or "by reason of" Wilson's race, colour or national or ethnic background. 21 In the written submissions filed on behalf of the CPSU and Barnes, it was conceded that direct evidence of racial discrimination is often rarely available to a complainant. However, there are cases where a finding of racial discrimination can be made by drawing reasonable inferences from the available facts. Indeed, one of the principles which I have considered in reviewing the present application and which was identified by Gilmour J in Dandaven at 6 and reproduced at [10] above, is that "in determining if there are real issues of fact in issue so as to preclude summary judgment the courts must draw all reasonable inferences in favour of the non-moving party". In the present case, there is no reasonable inference which can be drawn in favour of Wilson to warrant a finding that either the CPSU or Barnes discriminated against him by reason of, or based on, his race. Accordingly, Wilson's claim must fail. 22 Further submissions were made on behalf of the CPSU and Barnes in support of their motion under s 31A(2) of the Federal Court Act to the effect that Wilson's application under the RDA was out of time and also that the relief he seeks is beyond the power of the Court to provide. The latter contention was founded on the proposition that the relief which Wilson seeks can only be effective if certain action is taken by Australia Post or involves the CPSU and Barnes procuring a remedy from Australia Post. Although there is considerable force in each of these further contentions, the conclusions reached earlier in these reasons, that there is no evidence to sustain a claim under s 9 or s 13 of the RDA, make it unnecessary to give further consideration to the additional or further contentions advanced on behalf of the CPSU and Barnes.

Conclusion 23 Taking into account the principles applicable to s 31A of the Federal Court Act, set out at [12] of these reasons, the whole of the material presently before the Court does not disclose any real issue of fact or law to preclude summary judgment and, in my view, Wilson has no prospect of successfully prosecuting the proceeding against the CPSU or Barnes. For the reasons which I have endeavoured to explain, the respondents' motion must be allowed and Wilson's application should be dismissed. The CPSU and Barnes have not pressed for their costs, either of the motion or the application generally. Accordingly, there will be no order as to costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.