FEDERAL COURT OF AUSTRALIA

Paramasivam v University of New South Wales [2007] FCA 875

RACIAL DISCRIMINATION – removal of applicant from premises of University – applicant of Sri Lankan appearance – applicant’s belief of racial discrimination – whether removal based partly or wholly, or sufficiently connected to, applicant’s race, colour, descent or national or ethnic background – s 9 of the Racial Discrimination Act 1975 (Cth).

PRACTICE AND PROCEDURE – Summary judgment – Federal Court Act 1976 (Cth), s 31A – no reasonable prospect of success.

Crimes (Sentencing Procedure) Act 1999 (NSW), s 10

Federal Court of Australia Act 1976 (Cth), 31A(2)

Human Rights and Equal Opportunity Commission Act 1986 (Cth), ss 46PH(1)(c), 46PO

Inclosed Lands Protection Act 1901 (NSW)

Racial Discrimination Act 1975 (Cth), s 9

International Convention on the Elimination of all forms of Racial Discrimination, art 5(f)

Baird v State of Queensland (2006) 156 FCR 451, cited

Boston Commercial Services Pty Ltd v GE Capital Australasia Pty Ltd (2006) 70 IPR 146, cited

Duncan v Lipscombe Charles Care Service Inc [2006] FCA 458, cited

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, considered

Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615, cited

Jones v Scully (2002) 120 FCR 243, cited

Paramasivam v University of New South Wales [2006] NSWSC 1189, considered

Macedonian Teachers’ Association of Victoria Inv v Human Rights and Equal Opportunity Commission (1998) 91 FCR 8, cited

GAJA LAKSHMI PARAMASIVAM v THE UNIVERSITY OF NEW SOUTH WALES

NSD 2383 OF 2006

TAMBERLIN J

19 JUNE 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The respondent’s application for summary judgment is granted.

2.                  The applicant’s application of 7 December 2006 is dismissed.

3.                  The applicant is to pay the respondent’s costs in respect of both the application and the respondent’s motion for summary judgment.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

BACKGROUND

1                     This is a motion by the University of New South Wales (“University”) to dismiss the proceeding brought by the applicant pursuant to various provisions in the Racial Discrimination Act 1975 (Cth) (“Act”).

2                     The applicant made an application to the Court on 7 December 2006, claiming that the University had unlawfully discriminated against her on the basis of her race and ethnic origin.  The application states that the claim is based on employment-related bullying, harassment, persecution and alienation which resulted in arrests on four occasions. 

3                     However, in addition to that claim, the applicant seeks a “Declaration of Right” that she is the owner of the University of New South Wales.  She also asks the Court to “reprimand” (a) the University for failure “to uphold and value the discovery of Truth through Research and Education”; (b) the State of New South Wales, which “failed to facilitate DUE PROCESS”; and (c) the federal government for ignoring her suffering and pain.  She also seeks loss of past and future income in the amount of 3.2 million dollars. 

4                     In support of her claim, the applicant filed a lengthy affidavit on 7 December 2006.  This document was largely in the nature of a submission.  It sets out her beliefs as to the way in which she was treated and, as an annexure, a chronology of events which she says evidences the racial discrimination to which she was subjected by the central administrators of the University.  The applicant also filed another lengthy affidavit on 30 March 2007, making allegations and submissions on a wide range of matters, from among which it is difficult to discern the material which goes to the substance of her application.  For the University, its solicitor, Mr Mattson, filed an affidavit on 22 March 2007, which attached a large number of exhibits documenting the history of the matter.

APPLICATION TO THE HUMAN RIGHTS AND EQUAL OPPOTUNITY COMMISSION

5                     The proceeding before me arises as a consequence of a notice of termination issued by the Human Rights and Equal Opportunity Commission (“HREOC”), pursuant to s 46PH(1)(c) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“HREOC Act”), terminating the complaint of racial discrimination against the University.  Under s 46PO of the HREOC Act, where a complaint is terminated, an affected person can make an application to the Federal Court of Australia.  The unlawful act alleged in the application must be the same in substance as the unlawful discrimination that was the subject of the terminated complaint, or must arise out of substantially the same acts, omissions or practices.  If the Court is satisfied that there has been unlawful discrimination by the respondent, the Court may make such orders as it sees fit. 

6                     HREOC summarised the applicant’s complaint in the following terms:

‘… you state that you were discriminated against by the UNSW on the basis of your Sri Lankan ethnic origin.  You state that UNSW had arranged for the NSW Police Service to arrest you on 15 September 2003, 10 November 2003, 22 October 2004 and also on 29 October 2004 after you attended the UNSW grounds to see the Vice-Chancellor.  You claim that staff from UNSW must have provided false information to the NSW Police Service, including details about your ethnic origin which led you to being arrested on these occasions while you were on UNSW grounds.  You state that on the first 3 incidents, you were wearing a sari and the last occasion you were wearing a western suit and it was only on the last occasion when an officer of the NSW Police Service listened to your side of the story.’

7                     The case for the University as put to HREOC was that the applicant was an employee of UNSW and that her contract had finished on 17 May 1999.  The University stated that on 23 June 2003, the applicant entered the office of the Vice-Chancellor, and had discussions with the Director of Human Resources in relation to the applicant’s grievances.  The applicant was dissatisfied with these discussions, and on 15 September 2003 the applicant again visited the Vice-Chancellor’s office.  He was absent.  The applicant was then asked to leave, refused to do so and was arrested and charged under the Inclosed Lands Protection Act 1901 (NSW).  The applicant pleaded guilty on 29 October 2003 and the matter was dealt with on the basis that no conviction was recorded under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW).  Despite this, the applicant for a third time attended the Vic-Chancellor’s office on 10 November 2003.  She again refused to leave when requested.  After charges had once more been brought against her, the applicant pleaded not guilty to a breach of the Inclosed Lands Protection Act 1901 (NSW), and the Waverly Magistrates Court found the applicant not guilty on the basis that the applicant had a “reasonable belief” that she was entitled to remain on the lands.  Subsequent to a meeting on 1 October 2004, the University advised the applicant that she could not attend the premises.  On 22 October 2004 and 29 October 2004, the applicant attended the premises and was asked to leave.  She refused to do so, was arrested on both occasions and eventually prosecuted.  The charges were heard on 28 January 2005.  The applicant was found guilty of both charges and the matter was remanded for sentencing.

8                     Having reviewed the evidence and considered the possibility of a breach of s 9 of the Act and article 5(f) of the International Convention on the Elimination of all forms of Racial Discrimination, the delegate of HREOC decided that the complaint should be terminated as it lacked substance.  There are reasons given for this conclusion.  One important matter in those reasons was that the police were called not because the applicant was wearing a sari or for her ethnic origin, but rather because she was asked to leave the University’s premises and refused to do so.  Consequently, the delegate found that the applicant was not discriminated against on the ground of her Sri Lankan ethnic origin.  Rather, the University’s decision to call the police was the result of her returning to and then refusing to leave the University’s premises, the long history of previous incidents between the University and the applicant, and the events relating to her previous arrests. 

APPLICATION TO THE FEDERAL COURT OF AUSTRALIA

9                     When the matter came on for hearing before me, Mr Mattson gave a detailed outline of submissions setting out the history of the matter and referring to relevant authorities.  Because the applicant had not yet had an opportunity to consider these submissions, I decided to hear the applicant’s submissions in chief, and ask Mr Mattson to present his written and oral submissions in full, which he did.  I then directed the applicant to file and serve full and complete written submissions dealing with the University’s submissions and any other matters she wished to address.  I also directed the applicant to supply a copy of those written submissions on the University, and gave leave for the University to reply in writing.

10                  I have now had the benefit of considering all those further materials.

11                  This matter has had a lengthy history dating back to 1999 and the full history of the matter is detailed in the parties’ affidavits, annexes and exhibits.  The litigious history involves applications and dismissals brought by the applicant before the Administrative Decisions Tribunal, the Supreme Court of New South Wales, the District Court of New South Wales and HREOC.

12                  In the proceeding brought before the Supreme Court of New South Wales, Sully J dismissed the applicant’s statement of claim on the basis that the proceedings, although not frivolous, could properly be characterised as vexatious and as an abuse of process of the Court: Paramasivam v University of New South Wales [2006] NSWSC 1189.  The claims in that proceeding arose out of claims substantially overlapping those brought in the present proceeding. 

13                  In the present proceeding, the applicant asserts that University security officers and the NSW Police Service identified and removed her from the University’s premises by reference to her dark complexion and Sri Lankan background.  However, in my view, this belief of the applicant is not determinative when one considers that the appropriate test for unlawful racial discrimination under s 9 of the Act is whether a person has suffered unfair treatment based partly or wholly, or sufficiently connected to, his or her race, colour, descent or national or ethnic background: see Macedonian Teachers’ Association of Victoria Inc v Human Rights and Equal Opportunity Commission (1998) 91 FCR 8 at 33; Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615 at [39].  In broad terms, under the Act it is unlawful to do any act involving a distinction based on race, colour, descent or national or ethnic origin which has the purpose or effect of impairing the recognition, enjoyment or exercise on an equal footing of any human right.  Moreover, where an act is done for one or more reasons, it is enough that one of the reasons is the race, colour, descent or national or ethnic origin of the relevant person, irrespective of whether it is the dominant or substantial reason for doing the act: see Jones v Scully (2002) 120 FCR 243 at 273.  The applicant claims that she comes within this requirement.

14                  Section 31A(2) of the Federal Court of Australia Act 1976 (Cth) empowers the Court to give summary judgment against an applicant if it is satisfied that the applicant has “no reasonable prospect of successfully prosecuting the proceeding”.  This is a less onerous test than that previously stated and applied in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130, namely that the allegations are “so clearly untenable that [they] cannot possibly succeed”.  Section 31A was designed to make it easier for an opposing party to strike out a claim or defence: see Boston Commercial Services Pty Ltd v GE Capital Australasia Pty Ltd (2006) 70 IPR 146 at 158; Duncan v Lipscombe Charles Care Service Inc [2006] FCA 458 at [6].  Of course it is essential that the Court must be careful not to do an injustice by summarily dismissing proceedings, or denying an applicant an opportunity to ventilate their case.  However, in the present case, the material placed before the Court is not sufficient to satisfy the threshold raised by s 31A(2) because it does not raise a reasonable argument to the effect that there has been a contravention of the Act.  The version of the evidence for which the applicant contends merely indicates a reference to the applicant’s colour of skin or ethnic origin as a way of identifying her for the purpose of giving effect to the provisions of the Inclosed Lands Protection Act 1901 (NSW), a piece of legislation which applies equally to people of any ethnic origin.  Merely to identify a person by reference to characteristics of clothing, ethnicity or skin for the purpose of the application and enforcement of a generally applicable law is not a contravention of the Act. 

15                  I have carefully considered the evidence of the applicant, and it does not, even at its highest, provide any support for the view that she has been treated unlawfully because of race, colour or ethnicity.  To the contrary, the evidence supports the conclusion that there was no causal relationship between the removal of the applicant from the University’s premises and any contravention of her human rights or unlawful deprivation of equal opportunity.  There must be a connection between the impugned act and the prohibited ground as opposed to a mere belief that there has been a discriminatory course of conduct, and when ascertaining whether this connection exists, a broad interpretation of s 9 of the Act should be preferred: see Baird v State of Queensland (2006) 156 FCR 451 at 468.  In the present case, the applicant is of the belief that she has been unlawfully discriminated against in the basis of her race or ethnicity.  The evidence before the court does not establish the necessary basis for forming a view that a causal relationship existed.  For these reasons, I am satisfied that there is sufficient substance in the submissions made for the University to warrant summary judgment being entered in its favour.

16                  It is not necessary for me to deal with the other prayers contained in the University’s notice of motion as they were all posited in the alternative.  However, I will briefly state my position on two of the other prayers.

17                  First, I would grant prayer five in the notice, which seeks a stay in this proceeding until the applicant provides security for costs.  Given the lengthy history of the matter, the cumbersome detail of the affidavits filed to date, and the period over which the proceedings will be heard, it would be reasonable and appropriate for the proceedings to be stayed until the applicant provides security for costs in the amount of $10,000.  In the circumstances, this figure, which was proposed by the University, would be extremely modest.  Accordingly, even if I was convinced that there was some reasonable prospect of success in this present application, I would still consider that the proceedings should be stayed until security for costs had been given.

18                  Secondly, I would not grant prayer four in the notice of motion, which seeks a permanent stay in the proceedings before this Court until the applicant pays the University’s costs as ordered by the Supreme Court of New South Wales.  Although I would not grant such a stay, I have taken the respondent’s failure to satisfy the orders of the Court into account when considering whether a stay would be appropriate until security of costs have been given in respect of the present application. 

19                  For the above reasons, I have reached the conclusion that the applicant’s application should be dismissed pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth).  The applicant is to pay the costs of the University in respect of both the application and the University’s motion for summary judgment.

Associate:

Dated:         19 June 2007