FEDERAL COURT OF AUSTRALIA

Hu v Stansure Strata Pty Ltd [2014] FCA 779

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondents’ costs of and incidental to the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This is an appeal against a judgment of the Federal Circuit Court dismissing a proceeding brought in that Court by the appellant.

2    The appellant is a woman of Chinese ethnicity. She alleged before the Federal Circuit Court that each of the respondents had engaged in racial discrimination against her contrary to ss 9(1), 9(2), 10(1), 11, 12(1)(d) and 18C of the Racial Discrimination Act 1975 (Cth).

3    The appellant is the owner of a unit in a complex called Jarrah Court. The third respondent is the body corporate of Jarrah Court, the second respondent was the chair of the body corporate and the first respondent is the provider of body corporate services to the body corporate.

4    The appellant complained of a large number of incidents which she said involved racial discrimination against her. The primary judge held that each of the incidents either did not occur or did not occur in the way alleged by the appellant, and in any event, were not based on her race.

The judgment of the Federal Circuit Court

5    It is necessary to discuss in some detail the primary judge’s reasons for judgment. His Honour commenced by considering s 46PO(3) of the Australian Human Rights Commission Act 1986 (Cth). A court does not have jurisdiction to hear allegations to the extent that they do not satisfy the requirements of that provision. His Honour held that a number of the incidents alleged by the appellant, including those that she said had occurred after she made her complaint, did not comply with s 46PO(3), and that the Court had no jurisdiction to consider those allegations.

6    Next, his Honour turned to the issue of credit. The appellant had given evidence at the trial, as had a number of witnesses for the respondents. His Honour’s conclusion as to the reliability of the appellant’s evidence was summarised in the following passage:

Given the polarised bodies of evidence, someone is simply wrong and that evidence is untenable. In this case, I am satisfied that the witness in error here is the Applicant. For reasons which follow I have concluded that she is an inherently implausible and unreliable witness. Respectfully, I have concluded that she is delusional and detached from reality. While I accept that she genuinely perceives the matters she complains of, for reasons that can perhaps be best explained by others, there is no basis in fact for her perceptions.

7    The primary judge considered that parts of the appellant’s evidence were improbable, incredible, inconsistent or contradictory. His Honour found that the appellant was prone to exaggeration. In contrast, his Honour held that the evidence of the witnesses called by the respondents was reliable and truthful. His Honour said that he rejected the evidence of the appellant where it was inconsistent with the evidence of the second respondent and the other witnesses who gave evidence on behalf of the respondents.

8    The primary judge then decided that the facts alleged by the appellant, taken at their highest, did not engage ss 10(1), 11, 12(1)(b) and 18C of the Racial Discrimination Act. His Honour considered that the only provision of the Racial Discrimination Act under which the appellant’s allegations could possibly fall was s 9.

9    His Honour went on to consider the particular acts or incidents complained of by the appellant. They were, in summary, allegations that:

1.    the second respondent had said to the appellant that Asians and children were not welcome at Jarrah Court;

2.    the second respondent said to the appellant that permission was required for visitors to stay in the appellant’s unit, which the appellant believed was because she was Asian;

3.    a dispute with the second and third respondents about furniture being stored in the appellant’s carport was based on her race;

4.    the second appellant had damaged the appellant’s car by pushing a wardrobe onto it, because of the appellant’s race;

5.    what the appellant said was a dispute relating to her mail was based on her race;

6.    a dispute about whether a motorcycle should be parked on common property outside the appellant’s unit was based on her race;

7.    a dispute about a gardener entering the appellant’s courtyard was grounded in the fact that the appellant was Asian;

8.    a dispute with the third respondent about renovations to the appellant’s courtyard was based on her race;

9.    the first respondent had harassed her and tried to get an extra payment to do a termite inspection, based on her race;

10.    the second respondent had the appellant’s keys and entered the appellant’s unit and stole her clothing, and this was based on her race;

11.    the second respondent threw rubbish and a pot plant container into the appellant’s courtyard because of the appellant’s race;

12.    another resident of Jarrah Court would yell abuse at the appellant, based on her race;

13.    another resident of Jarrah Court had jumped onto the appellant’s roof to damage it, based on her race; and

14.    someone had damaged the plants and trees in the appellant’s front yard, based on her race.

10    As I have said, the primary judge rejected each of those allegations. In a number of instances, his Honour preferred the evidence of the second respondent and other witnesses to the evidence of the appellant. In some cases, his Honour held that the events alleged by the appellant had not occurred. In other cases, he held that the events had not occurred in the way alleged by the appellant, or that the appellant had misconstrued what had happened. His Honour held that none of the events alleged by the appellant involved discrimination based on the appellant’s race.

The appeal

11    The appeal has been brought pursuant to s 24(1) of the Federal Court of Australia Act 1976 (Cth). An appeal from a judgment of the Federal Circuit Court is by way of rehearing: SZSYM v Minister for Immigration and Border Protection [2014] FCA 174 at [28]. It is necessary for the appellant to demonstrate error on the part of the primary judge: MZYTT v Minister for Immigration and Citizenship [2013] FCA 76 at [20].

12    The appellant’s grounds of appeal are as follows:

1.    The learned trial Judge made “error of the law” for the purpose to state me away from death sentence (murder arrangement been in the way for respondents to serve me on His Honour’s correct judgment) due to His Honour’s jurisdiction as a Judge of Federal Circuit Court Brisbane.

2.    “Error of law” relations to:

a)    The learned trial Judge substantially miscarriage the mediation agreement made on 24 August 2012, and the respondents failed to comply with references was filed.

b)    The learned trial Judge substantially miscarriage of justice to the fact of immediate action of “abuse to power” occurred from respondents’ side at hearing day.

c)    The learned trial Judge made error by not take into account of the clear contempt of all respondents did during the proceeding.

d)    The learned trial Judge erred by not to follow up the fact of interferes to proceeding as most law practitioners did during the proceeding.

e)    The learned trial Judge manifestly excessive relay on Second Respondent’s written submission to be his ground of “reason for judgment”, as a written submission made to abuse the truth, abuse the Law, abuse the power, and abused Judge Burnett’s education to both the Respondents and their barrister on 28 March 2012 and 2 September 2013.

f)    The learned trial Judge erred to admitted unconfirmed all identities of the First Respondent’s testimonies and written submission in which the says don’t have the accountability and cannot be supported to the matter.

g)    The learned trial Judge made wrong calculation to meaning Australian Human Rights Commission is higher Government Corporation than Federal Circuit Court procedurally.

[Some obvious typographical errors have been corrected, but the language is otherwise as set out in the original]

Consideration

13    In her oral submissions, the appellant explained the errors she alleged on the part of the primary judge. Those alleged errors and my rulings in relation to them are as follows:

1.    That a number of events had occurred at Jarrah Court after the primary judge reserved his decision that amounted to a contempt of court.

Even if it is assumed that the actions alleged by the appellant occurred, that does not demonstrate error on the part of the primary judge.

2.    That the lawyers for the respondents in the Federal Circuit Court proceedings were incompetent and had engaged in fraud and contempt of court.

These allegations are without foundation. They simply seem to be based in the fact that the respondents’ lawyers argued matters that the appellant disagrees with. There is no evidence of fraud or any other misconduct on the part of the respondent’s lawyers. The allegations should not have been made.

3.    That the primary judge was wrong to say in his reasons that the complaint had failed to settle at mediation, and that it had in fact settled at mediation.

The appellant ran her case of racial discrimination before the primary judge. This is inconsistent with the suggestion that it had settled at mediation. The primary judge decided the case on its merits, as he was asked to do by the parties. No error on the part of the primary judge has been demonstrated in this respect.

4.    That the respondent’s witnesses did not file any legal documents to confirm their identities to the court.

There is no legal requirement for witnesses to file any particular documents to confirm their identities to a court. This ground is patently without merit.

5.    That the primary judge should have found that the respondent’s witnesses perjured themselves.

In Devries v Australian National Railways Commission (1993) 177 CLR 472, Brennan, Gaudron and McHugh JJ said at 479:

[A] finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.

    The trial judge had the benefit of seeing and hearing each of the witnesses give evidence. It was entirely open to his Honour to decide that the evidence of the appellant was unreliable and, in contrast, that the evidence of the witnesses called by the respondents was reliable. No reason has been provided to cast doubt upon such findings.

6.    That the primary judge ignored the appellant’s written and oral submissions concerning the issues to be decided and questions of perjury.

His Honour’s reasons indicate that he carefully and thoroughly considered the arguments raised by the appellant, including her submissions that the respondent’s witnesses had lied. There is no reason to think that his Honour ignored any part of the respondent’s submissions.

7.    That in her written submissions, the appellant had asked the primary judge to “work with her to stop the crime”. The appellant argued that the relevant crime was discrimination, fraud and “strata crime”. She had asked the trial judge to imprison the second respondent. She seemed to allege that his Honour’s failure to accede to her request had resulted in the making of what she perceived to be a death threat to her in February 2014.

The submission seems to be that his Honour made an error in failing to imprison the second respondent. The submission is simply and patently without foundation.

8.    That the primary judge accepted that the Australian Human Rights Commission was higher than the Federal Circuit Court procedurally. The appellant submitted that the primary judge accepted that her proceeding should be terminated because the Australian Human Rights Commission had terminated her complaint.

It is entirely clear that his Honour did not dismiss the appellant’s proceeding on such a basis. Rather, his Honour carefully considered the evidence and submissions that were before the court.

14    In these circumstances, I conclude that the appellant has not demonstrated any error in the judgment of the Federal Circuit Court. The appeal must be dismissed with costs.

Associate:

Dated:    28 July 2014