Paramasivam v Grant [2002] FCAFC 144

FEDERAL COURT OF AUSTRALIA

Paramasivam v Grant [2002] FCAFC 144

GAJA LAKSHMI PARAMASIVAM v WILLIAM GRANT & ANOR

N 1126 of 2001

O'LOUGHLIN, WHITLAM and MARSHALL JJ

21 MAY 2002

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1126 of 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: GAJA LAKSHMI PARAMASIVAM

APPLICANT

AND: WILLIAM GRANT

FIRST RESPONDENT

ROBERT JOHN DEBUS

SECOND RESPONDENT

JUDGES: O'LOUGHLIN, WHITLAM and MARSHALL JJ

DATE OF ORDER: 21 MAY 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. Leave to appeal be granted. 2. The appeal be dismissed. 3. The appellant pay the respondents' costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1126 of 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: GAJA LAKSHMI PARAMASIVAM

APPLICANT

AND: WILLIAM GRANT

FIRST RESPONDENT

ROBERT JOHN DEBUS

SECOND RESPONDENT

JUDGES: O'LOUGHLIN, WHITLAM and MARSHALL JJ

DATE: 21 MAY 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT

THE COURT 1 This is an appeal from the judgment of Hely J of 4 July 2001. His Honour dismissed an application made by the appellant pursuant to s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 ("the HREOC Act"). 2 The application for relief under the HREOC Act was filed on 14 March 2001. The discrimination complained of was described as follows: "My expressions of corporate wisdom were not treated on the same basis as those from others in positions of power." 3 Inter alia, the appellant sought an apology from the respondents. 4 The discrimination alleged was "racial discrimination" on account of the appellant's origins in Sri Lanka and Tamil being her first language. 5 On 20 February 2001 the President of the Human Rights and Equal Opportunity Commission ("HREOC") had issued a notice of termination pursuant to s 46PH(2) of the HREOC Act in respect of the appellant's complaint to that body. 6 The first respondent was, at all material times, the Deputy Director General of the New South Wales Attorney General's Department. The second respondent was, at all material times, the Attorney General for New South Wales. 7 The appellant's complaint was summarised in the President's reasons for decision as follows: "In your letter dated 10 January 2001 to the Department you allege that because of your race, Mr Grant and Mr Debus deny [sic] you Departmental services by not providing you with assistance in relation to the issues you raised with the Department about the alleged secretive and subjective nature of the Selection Criteria System at the University of New South Wales. You also state that Mr Grant and Mr Debus did not provide you with specific response to your questions about the legal system and failed to refer you to the appropriate agencies." 8 In those reasons the President stated: "It is not the role of the Department to investigate [a] complaint concerning the administration of any public sector agencies, or provide advice to individuals in relation to their private legal interests including legal advice on matters between private citizens. … The evidence before me does not indicate that Mr Grant and Mr Debus have not responded to the issues you raised in your letters to the Department because of your race. You have not provided any evidence of less favourable treatment based on your race by Mr Grant, Mr Debus and the Department. Accordingly, I am satisfied that your complaint is lacking in substance and I have terminated your complaint on that basis." 9 On 4 May 2001 the respondents filed a notice of motion seeking summary dismissal of the appellant's application. The matter was heard by Hely J on 4 July 2001. His Honour observed at [14] of his reasons for judgment that the power to summarily dismiss an application must be exercised with "circumspection". 10 Hely J granted the respondents' motion because he formed the view that the material relied upon by the appellant was "incapable of sustaining a conclusion that the respondents were guilty of unlawful conduct pursuant to s 9 or s 13 of the [Racial Discrimination Act]". 11 His Honour also stated at [17] that there was no "evidentiary foundation for a conclusion that the respondents refused to provide legal assistance to the applicant by reason of her race, colour or nationality or ethnic origin." 12 Section 9(1) of the Racial Discrimination Act 1975 ("the RD Act") provides as follows: "(1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, or any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life." 13 Hely J observed at [18] that s 9(1) of the RD Act contained "a threshold requirement" that there be an act of the kind described in the subsection. His Honour did not accept that the respondents' conduct was activated by "racist considerations". The primary judge formed the view that the application was bound to fail. Consequently he granted the respondents' motion. 14 The appellant's notice of appeal contains no proper grounds of appeal. However, the appellant provided the Court with an outline of her submissions. That outline was discursive in nature and did not challenge in any cogent way Hely J's analysis as contained in his reasons for judgment. 15 It was submitted by counsel for the respondent that the appellant required the leave of the Court to appeal, given the interlocutory nature of the proceeding before Hely J. It is unnecessary for us to consider this issue given the view we have formed about the merits of the appeal. We are prepared to grant leave to appeal but will dismiss the appeal. 16 Our reason for dismissing the appeal is that we consider Hely J to have correctly determined the matter before him. We have been unable to discern any error in his approach to the issues before him. His Honour correctly determined that the evidence disclosed no basis for the claims made in the appellant's application. 17 We will order as follows: 1. leave to appeal be granted; 2. the appeal be dismissed; and 3. the appellant pay the respondents' costs of the appeal.