Barbaro, Paul v The Human Rights & Equal Opportunity Commission & Anor [1998] FCA 573

FEDERAL COURT OF AUSTRALIA RACIAL DISCRIMINATION - no chance of success - attempted review on the merits - no question of law - prior resolution of dispute

Administrative Decisions (Judicial Review) Act 1977 (Cth) Crown Proceedings Act 1972 (SA) ss 5, 10 Racial Discrimination Act 1975 (Cth) s 24AA

Alvaro v Secker (unreported judgment of the Full Court of the Supreme Court of South Australia) referred

PAUL BARBARO v THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION AND THE STATE OF SOUTH AUSTRALIA

NO SG 69 of 1997

O'LOUGHLIN J

ADELAIDE

29 MAY 1998

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SG 69 of 1997

BETWEEN: paul barbaro

Applicant

AND: the human rights and equal opportunity commission

First Respondent

the state of south australia

second respondent

JUDGE: O'LOUGHLIN J

DATE OF ORDER: 29 may 1998

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application filed herein be dismissed. 2. The applicant pay the second respondent's costs which costs are to be taxed in default of agreement. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SG 69 of 1997

BETWEEN: paul barbaro

Applicant

AND: the human rights and equal opportunity commission

First Respondent

the state of south australia

Second Respondent

JUDGE: O'LOUGHLIN J

DATE: 29 may 1998

PLACE: ADELAIDE

REASONS FOR JUDGMENT The applicant in this action, Mr Paul Barbaro has alleged that he has been the victim of racial discrimination. On 23 June 1986, Mr Barbaro took up temporary employment with Aitco Pty Ltd, the operator of the Adelaide Casino. Initially, he was employed as a bar porter but later, his duties were changed to those of an attendant. Mr Barbaro's temporary employment approval was withdrawn some ten months later, on 16 April 1987 by Mr Andrew Secker. Mr Secker held the office of the Liquor Licensing Commissioner for the State of South Australia ("LLC"). Mr Secker's decision not to reinstate Mr Barbaro's approval to be employed at the Casino was communicated to Mr Barbaro by letter dated 16 April 1987. The terms of that letter were as follows: "On 23 June 1986, you were given temporary approval to be employed at the Adelaide Casino. You signed an acknowledgement that you understood that the temporary approval was 'issued subject to all enquiries made with regards to my application for approval as a casino employee being concluded to the satisfaction of the Liquor Licensing Commissioner and that the aforesaid temporary approval may be withdrawn at any time'. Certain matters have come to my attention which are so serious that I consider I must withdraw your temporary employment approval forthwith, and I now do so. I have advised Aitco Pty. Ltd. of this decision. I have decided that you should be advised of the nature of these matters of concern and be given the opportunity to comment on them. For this purpose, please attend an interview before me on Monday, 27 April 1987 at 10.00 a.m. at this office. The purpose of the interview is to decide whether your approval to be employed should be reinstated. While I do not consider that I am obliged to do so, I am willing given the seriousness and complexity of the matter to allow you to be accompanied at the interview by a legal or union representative."(Emphasis on original text) The interview took place but Mr Barbaro was not successful. By letter dated 7 May 1987 Mr Secker wrote him in these terms: "As you know, on 30th April 1987 I interviewed you in the presence of your legal counsel, Mr. Ian MacLean, to determine whether to reinstate your approval to be employed by AITCO Pty. Ltd. at the Adelaide Casino. At that interview, which was recorded and transcribed, I provided you with a copy of certain documents and reports which had been supplied to me. I asked you questions and sought your response to statements in those documents, and allowed you and your legal counsel to make submissions on your behalf. I also allowed you to call two witnesses to give evidence as to your character and evidence. I have taken into account all these matters and have, determined that, in all the circumstances, you should not be given approval to be employed at the Adelaide Casino." The decision of the LLC to refuse Mr Barbaro permanent approval had the effect of denying him the possibility of employment at the Adelaide Casino. On 22 May 1987 Mr Barbaro's solicitor wrote Mr Barbaro's union advising of the outcome of the interview and the decision not to re-employ Mr Barbaro. The following extract from that letter is relevant: "There are no express reasons given. I can only infer that Commissioner Secker was of the view that because 2 brothers of your member had previously been convicted of drug offences, that somehow they were related or formed part of a group of persons or families that were engaged in the cultivation and distribution of drugs in this and other States." Mr Barbaro complained that the termination of his employment was an act of racial discrimination arising out of his Calabrian origins. He ultimately lodged a complaint with the Human Rights and Equal Opportunity Commission ("the Commission") some six years later on 10 September 1993. On 14 September 1993 the Executive Director of the Commission wrote Mr Barbaro in these terms: "Your letter, which was received by the Commission on 10 September 1993, has been accepted as a complaint under the Racial Discrimination Act 1975. We will commence the investigation of your complaint as soon as we are able to do so." There is, however, on the Commission's file an earlier letter from Mr Barbaro to the Commission dated 10 April 1993 in which he said that he had "recently become aware" that the Commission might investigate all the circumstances of his dismissal. I do not consider that the differences in these dates are of any importance. Whether the complaint was first made in April or in September 1993, a long period of time had elapsed since the termination of Mr Barbaro's employment at the Adelaide Casino. On 27 April 1994 Mr Kelly, the Chief Executive Officer of the South Australian Attorney-General's Department wrote the Commission. This was in response to an inquiry that the Commission had directed to the Commissioner of Consumer Affairs. Mr Kelly submitted that the LLC had reached its conclusion about Mr Barbaro (even though Mr Barbaro did not have any convictions) because of his association with relatives and friends who had criminal backgrounds. In his letter Mr Kelly quoted at length from a report from the Commissioner of Police to the LLC. I think that it will be sufficient to quote some selected extracts from that police report: "... He is a member of a broad family group which, in my opinion can only be described as a major organised crime group. This conclusion has been reached as follows: Eighteen members of the group have been convicted of major drug offences. Each of those persons' convictions relate to commercial production, possession or sale of indian hemp. ... Paul BARBARO's brothers Frank and Saverio have been convicted of major drug offences." Mr Kelly concluded in his letter to the Commission that the LLC's "sole reason for refusing Mr Barbaro's employment was to ensure the integrity of the Adelaide Casino and the public confidence in that institution". Mr Kelly also drew to the attention of the Commission that the facts in Mr Barbaro's case had a parallel in the case of Alvaro v Secker an unreported decision of the Full Court of the Supreme Court of South Australia. Mr Alvaro had been denied employment by the Adelaide Casino because of his family's reputed involvement in the cultivation and sale of illegal drugs. The Court, by a majority, affirmed the decision of the LLC. By letter dated 30 November 1994, Ms Zita Antonios, a Race Discrimination Commissioner, wrote Mr Barbaro saying, inter alia: "It would appear that it was your perceived association or actual relationships with people who have criminal records, rather than your Calabrian ethnic origin, which was the basis for the decision of the LLC. The fact that you and your family members are of Italian national origin or descent is not germane. It could not be argued that people of Italian national origin or descent are unable to comply with the assessment of the LLC given that his assessment was based on your relationships with people who have criminal records. ... In the absence of any evidence that your race, national or ethnic origin was the basis for any alleged discrimination in relation to your employment, I have decided not to continue to inquire into your complaint on the basis that it is lacking in substance." By letter dated 7 December 1994, Mr Barbaro sought a review of Ms Antonios' decision not to inquire further into his complaint. That review was conducted by the President of the Commission, Sir Ronald Wilson, who wrote Mr Barbaro on 21 March 1995: "In my opinion, not only is there no evidence that the ethnic origin of the Complainant or his relatives and associates was the dominant reason for the conduct of the Respondent but there is no evidence that the ethnic origin of the Complainant his relatives or associates constituted any reason at all for the conduct." That decision was communicated to Mr Barbaro by letter from Sir Ronald dated 25 March 1995. There the matter rested, ostensibly, for over two years until 26 August 1997 when Mr Barbaro lodged in this Court an Application for an Order of Review. In his application, Mr Barbaro has asked this Court to review the decision of the Commission not to continue its inquiries into his allegations that he had been the subject of racial discrimination. That application named only the Commission as a respondent but on 22 December 1997, the Court, on its own motion, ordered that a copy of Mr Barbaro's application be served on the LLC. This led to the State of South Australia entering an appearance in the action as the second respondent. In his application, Mr Barbaro also sought an extension of time within which to file it. His grounds included a statement that he was not aware of the "avenue of appealing" under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"). He claimed that he first heard of his entitlement to seek an order of review under that Act in March 1996. On the other hand, Mr Barbaro had been able to ascertain the existence of and file a complaint with the Committee on the Elimination of Racial Discrimination ("CERD") in Geneva in March 1995. There is a suggestion that he might have deferred lodging his application to this Court pending the outcome of CERD's deliberations but Mr Barbaro did not otherwise explain why he waited from March 1996 until August 1997 before filing his application. He asks that the Court note that his application to CERD was lodged within the time frame for the lodgment of an application for an Order of Review under the ADJR Act. He also claimed in his application for an extension of time, that the Commission, knowing of his dissatisfaction with its decision, informed him of the address at the United Nations thereby "making him believe that his next right of appeal lay there". When Mr Barbaro learnt on 18 August 1997 that his complaint to CERD had been rejected, he then, very quickly, filed his application in this Court on 26 August. The State of South Australia on 27 January 1998 filed a Notice of Objection to Competency complaining that the Application had been brought out of time. Later on 27 February 1998, the State filed a Notice of Motion seeking an order that the Application be summarily dismissed or, in the alternative, that Mr Barbaro give security for costs. It is now necessary to consider an entirely different aspect of the history of this matter. The following information has been extracted from the affidavit of Ms Rose Debbie De Palma sworn on 26 February 1998 and read on the hearing of this Application for summary dismissal of Mr Barbaro's Application. Ms De Palma is a solicitor in the employ of the South Australian Crown Solicitor's Office and she has the responsibility for the conduct of Mr Barbaro's claims on behalf of the State. According to Ms De Palma (and, with one exception which will be identified later, her evidence was not challenged by Mr Barbaro), Mr Barbaro instituted proceedings in Action No. 424 of 1995 in the District Court of South Australia against the State of South Australia. In his pleadings in that action, Mr Barbaro alleged that the withdrawal of his temporary approval for employment at the Adelaide Casino by the LLC was caused by the negligence of the South Australian Police Department in providing the LLC with documents and reports that were factually wrong, inaccurate and misleading. At this time Mr Barbaro was a law student, and was working as a law clerk for a firm of solicitors. Ms De Palma said that on several occasions she made telephone contact with Mr Barbaro at the office of those solicitors and Mr Barbaro has made no assertions to the contrary. He represented himself in the District Court proceedings but his amended Statement of Claim, exhibit R1, shows that someone with legal skills was involved in its drafting. For example in par 2 there is a plea that the State was sued "pursuant to Section 5 and Section 10 of the Crown Proceedings Act" and in par 4 it is pleaded that the State was "vicariously liable" for the negligent acts and omissions of members of the Police Force. However, Mr Barbaro's action in the District Court had been instituted out of time and he was unsuccessful in obtaining an extension. His action was dismissed with costs on 27 February 1996. On 4 March, Mr Barbaro telephoned Ms De Palma asking that the State not pursue its entitlement to costs; in the same conversation he also told Ms De Palma "that he was getting someone to look at the matter with a view to appealing". On 7 March 1996, Ms De Palma informed Mr Barbaro by telephone that the State would not pursue its costs if Mr Barbaro agreed to sign a discharge. I set out the following extract from Ms De Palma's affidavit: "I explained to the applicant that the discharge would stop him from suing "us" again regarding the decision of the Liquor Licensing Commissioner. The applicant inquired as to whether the discharge would stop his complaint to the International Committee on the Elimination of Racial Discrimination. I said "no" and advised that he could still pursue that complaint. I also advised the applicant that I would forward the discharge for his signature." Mr Barbaro challenged the first sentence in this passage. He claimed that Ms De Palma never made any such statement. Mr Barbaro had, contrary to his earlier advice, lodged an appeal. He thereafter wrote to Ms De Palma by letter dated 15 March 1996 asking whether the State would contribute $250 towards his costs of instituting the appeal if he should agree to withdraw it. He wrote that the delay in receiving the Discharge had forced him to lodge the Notice of Appeal to preserve his rights. The following passage then appears in Mr Barbaro's letter: "Finally and correct me if I have misunderstood does your discharge include that if the International Human Rights Committee 9/1995, concludes that Mr A Secker and or the State of South Australia acted in a racially discriminating manner, I cannot expect anything at all? Further who would be responsible to me if any favourable decision from ERD Committee, if not Secker/State of South Australia". This is a curious passage in light of Mr Barbaro's challenge to the contents of Ms De Palma's affidavit. In my opinion, the letter shows that Mr Barbaro was alert to the consequences that might flow from his execution of the Discharge. Ms De Palma deposes that she replied to Mr Barbaro's inquiry, by letter dated 22 March 1996, informing him "that the Discharge would release my client from any liability in the unlikely event that the ERD Committee found in your favour". She also wrote that the State offered to pay him $209.00 on account of his costs and submitted a form of Discharge to him for execution. The Discharge was duly executed on 28 March 1996 and in it, Mr Barbaro agreed, for consideration, to discontinue his appeal and to accept the payment of $209 and the State's undertaking not to pursue its claim for costs: "...in full satisfaction and discharge of all actions, proceedings, claims, demands (including costs) and damages whatsoever which the plaintiff may now have or may hereafter have against the defendant and its servants and agents in respect of, relating to, arising out of or in any way connected with: (i) the decision made by the Liquor Licensing Commissioner on about 16 April 1987 to withdraw the plaintiff's temporary approval to be employed at the Adelaide Casino; (ii) the hearing before the Liquor Licensing Commissioner on 30 April 1987; and (iii) the decision made by the Liquor Licensing Commissioner on about 7 May 1987, that the applicant should not be given approval to be employed at the Adelaide Casino." The Discharge then concludes with a passage that the parties acknowledge and agree that Mr Barbaro's discharge "does not apply to the plaintiff's Communication (No 7/1995) to the Committee On The Elimination of Racial Discrimination (to the extent that the defendant and its servants and or agents are a party to those proceedings)", but that it does apply to any claim for costs and damages against the State. In answer to these assertions, Mr Barbaro swore an affidavit on 10 March 1998 in which he denied that the Discharge that he had executed two years earlier in March 1996 has the effect that was propounded on behalf of the State. In par 4 of his affidavit Mr Barbaro said: "4. At no stage of (sic) before or after action 424 of 1995 did I contemplate wavering (sic) any rights as to the liability of the Liquor Licensing Commissioner for possible acts of racial discrimination which could be found in the future." This statement cannot be accepted. In the first place it is contradicted by the express language of the Discharge that has already been quoted. In the second place, and making due allowance for Mr Barbaro's lack of legal qualifications, it could not be contemplated that he misunderstood the effect of the Discharge. The contents of his letter of 15 March 1996 addressed this very topic of the effect of the Discharge on his complaint to CERD. In the course of his submissions, Mr Barbaro claimed that the sole purpose of the Discharge and its sole effect was to bring about a conclusion of the District Court proceedings, which, he emphasised, were proceedings that he had instituted against the Commissioner of Police; that statement is not correct. His amended Statement of Claim named the State of South Australia as the defendant and it included the very technical reference to the Crown Proceedings Act 1972 (SA). In general terms that Act identifies the State as the appropriate party to name as a defendant or respondent when another party intends to institute legal proceedings against certain public servants. The reference in the statement of claim to the Act indicates, either, that Mr Barbaro reached a reasonably advanced stage in his legal studies or that he had the benefit of legal advice. Mr Barbaro next argued that the reference to "my client" in Ms De Palma's letter to him of 22 March 1996 was understood by him to mean the Commissioner of Police - he did not believe that it was a reference to the State. I must say that this argument, having regard to uncontroverted facts that I have summarised, must be rejected as having no foundation. On the information that has been placed before the Court, I am satisfied that the Discharge that Mr Barbaro signed represents a complete discharge in favour of the State in respect of all matters arising out of the decision of the LLC to deny Mr Barbaro employment with the Adelaide Casino. That finding does not conclude the matter, for the substantive application that is before the Court seeks an Order of Review of the decision of the Commission - and the Commission was not a party to the Discharge. In the eyes of Mr Barbaro, it is the Commission that is the respondent in this proceeding. He considers that the presence of the State is not of his making as it was the Court that was responsible for the State being brought in as a respondent. As I understand Mr Barbaro's submission, he still seeks a review of the Commission's decision. He still wishes to submit that he was the victim of racial discrimination by the LLC and that the Commission fell into error when it decided that it would not further investigate his complaints. In my opinion, there is no utility in pursuing this submission. The law is quite clear; with some exceptions that do not apply in this case, the Commission is expected to file a submitting appearance so as to preserve its integrity and so that the true contradictor can be identified and joined as a respondent to the proceedings. In this case the LLC was identified as the correct contradictor and the provisions of the Crown Proceedings Act explain why the State of South Australia was the party actually named as the second respondent. Thus it can be seen that a remission of this matter to the Commission will be a futile exercise, for even if the Commission was persuaded to come to a contrary conclusion, Mr Barbaro would be prevented, by his execution of the Discharge, from pursuing the matter against the State. CHANCES OF SUCCESS Mr Manetta, counsel for the State, submitted that a fair appreciation of the material before the Court establishes, conclusively, that Mr Barbaro has no prospect of success in the substantive proceedings. Mr Barbaro argued that there was material before the Court sufficient to support his claim that he had an arguable case. He relied on three matters. They were:- · the contents of a letter dated 8 November 1993 from the Honourable Peter Duncan MP, then the Federal Member for Makin and the Parliamentary Secretary to the Attorney-General. Mr Duncan wrote to the Commission and identified himself as acting on behalf of his constituent, Mr Barbaro. On the one hand Mr Duncan referred to "guilt by association" against certain people of Italian extraction describing it as "an insidious and officially sanctioned act of racial discrimination" but concluded that the matter should be the subject of investigation "so that if a complaint is upheld the practice can be rooted out and changed". The last part of the letter from Mr Duncan suggests that he was doing no more than submitting that if his constituents' complaints were "upheld" then such a practice which would quite fairly be called "insidious" should be rooted out. I do not see that Mr Duncan's letter can afford any assistance to Mr Barbaro. · Ms Kate Eastman is a senior legal officer employed with the Commission; she had the conduct of Mr Barbaro's complaint for the purposes of assisting the President, Sir Ronald Wilson, in relation to his review duties under s 24AA of the Racial Discrimination Act 1975 (Cth). In her report of 9 March 1995 Ms Eastman set out in summary form the relevant facts of the matter; she then summarised the decision of the LLC and then identified the issue that fell to be determined. Thereafter she presented to Sir Ronald the competing arguments in the course of which she said: "The decision not to employ him was based on both the combination of the relatives' criminal records and his family background. While the LLC does not expressly refer to PB's ethnic origin as the reason, his reference to family background could mean the family's ethnic origin. This does not appear to have been pursued during the investigations. ... In this case, it appears that the decision was based on PB's association with people who have criminal records albeit of people of a particular ethnic origin. On this basis, I do not think that there has been direct discrimination." Mr Barbaro cannot draw any comfort from the contents of Ms Eastman's report to Sir Ronald Wilson. In the first place, it is of little or no consequence to consider the views and opinions of anyone other than the decision-maker. In the second place, nothing in Ms Eastman's report constitutes outright support for Mr Barbaro's position. She has merely presented competing propositions to her superior officer so that he may consider all facets of the complaint. · The last matter to which Mr Barbaro made reference was the decision of the CERD. This report was dated 14 August 1997 and submitted to Mr Barbaro under cover of registered mail by letter dated 11 November 1997. In paragraph 10.2 of its decision the CERD said: "In the Committee's opinion, the author has sufficiently substantiated, for purposes of admissibility, his claims under article 5(a) and (e)(i), read together with article 1, paragraph 1, of the Convention." Paragraph 1 of the International Convention on the elimination of all forms of racial discrimination ("the Convention") states: 1. In this Convention, the term 'racial discrimination' shall mean any 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, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life." The provisions of article 5(a) and (e)(i) are as follows: "In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: (a) The right to equal treatment before the tribunals and all other organs administering justice; (b) ... (c) ... (d) ... (e) Economic, social and cultural rights, in particular; (i) The rights to work, to free choice of employment, to just and favourable conditions of work, to protection against unemployment, to equal pay for equal work, to just and favourable remuneration; (ii) ... (iii) ... (iv) ... (v) ... (vi) ... (f) ..." I take this statement to mean nothing other than a finding by CERD that the factual material submitted to it for its consideration was sufficient to identify a complaint within the terms of the Convention. However, having come to that conclusion, CERD nevertheless proceeded to reject Mr Barbaro's application on the grounds that he had not "exhausted all available domestic remedies": art 14 subpar 7(a) of the Convention. The CERD was satisfied that Mr Barbaro could have sought judicial review in the Supreme Court pursuant to r 98.01 of the Rules of the Supreme Court with respect to the decision of the LLC; it was also of the opinion that Mr Barbaro could have sought judicial review by the Federal Court of the decision of the Commission. Although the decision of the CERD was quite lengthy, extending in all to some 13 pages, nevertheless it did not address the merits of the application in any way that would give comfort to Mr Barbaro. In one sense, the issue between the warring parties can be simply stated: was Mr Barbaro denied employment in the Adelaide Casino because of this ethnic background or was it some other and if so what other cause? Undoubtedly, the material in the papers show that there was evidence before the LLC that showed an association between Mr Barbaro on one part and other people, being relatives by blood or marriage, with drug convictions on the other part. Likewise, there was material before the LLC which pointed to Mr Barbaro's Calabrian background and the Calabrian backgrounds of the other persons with whom he was said to have associated. But in the ultimate, it must be said, that there was evidence before the LLC which entitled it to come to the conclusion at which it ultimately arrived. It cannot be said that the conclusion was unreasonable nor can it be said that it was unjustified by the state of the evidence. So expressed, it becomes clear that Mr Barbaro seeks a review on the merits of his case; he wishes this Court to overturn findings of fact that were available to the primary decision-maker. That is not the role of a Court of Review. Mr Barbaro cannot draw any comfort from the contents of his Application. He claims that his grounds are:- "1. The respondent erred in not finding that the conduct complained of by the applicant was contrary to ss 9 and 15 of the Racial Discrimination Act 1975 (Cth). 2. The respondent's decision not only went against the evidence but also the weight of it." The grounds upon which this Court can intervene are those that are set out in ss 5 and 6 of the ADJR Act; none of those grounds have been identified in Mr Barbaro's Application. I agree with the submission that has been advanced on behalf of the State that there is no reasonable prospect of the substantive application succeeding in this matter. EXTENSION OF TIME Were it not for the other factors to which I have referred, I would have granted an extension of time to Mr Barbaro in these proceedings. Despite the delay between the decision of the LLC and his application to the Commission that delay is not to be held against him in this present application. His delay on the present application dates only from the decision of the Commission in 1995. Upon receipt of that decision he made immediate application to CERD and, allowing for the fact that he was probably awaiting the final decision of CERD, he acted promptly in applying to this Court when he received from it its ultimate decision. I am prepared therefore to extend the time within which the applicant may file his application for an Order of Review until 26 August 1997. However, for the reasons which I have discussed I am of the opinion that the applicant has no reasonable prospect of success and in any event any success in this Court would serve no useful purpose because of the effect of the Discharge that he executed. Accordingly there will be an order on the Notice of Motion filed in this proceeding on behalf of the State of South Australia that Mr Barbaro's application for an Order of Review be summarily dismissed with costs.