FEDERAL COURT OF AUSTRALIA Paramasivam v Wheeler & Ors [2001] FCA 231 GAJA LAKSHMI PARAMASIVAM v CHRIS WHEELER, IRENE MOSS, LAURIE GLANFIELD, YVONNE GRANT, HARRY HERBERT, SUZANNE JAMIESON, RUTH McCOLL AND PETER RYAN N 1191 of 2000 GAJA LAKSHMI PARAMASIVAM v DAVID KEMP N 1192 of 2000 GAJA LAKSHMI PARAMASIVAM v JOHN HOWARD N 1193 of 2000 GAJA LAKSHMI PARAMASIVAM v TOM KARMEL N 1194 of 2000 GAJA LAKSHMI PARAMASIVAM v BOB SENDT N 1195 of 2000 GAJA LAKSHMI PARAMASIVAM v JOHN AQUILINA N 1196 of 2000 HILL, CARR AND TAMBERLIN JJ 16 FEBRUARY 2001 SYDNEY GENERAL DISTRIBUTION NEW SOUTH WALES DISTRICT REGISTRY BETWEEN: GAJA LAKSHMI PARAMASIVAM N 1191 OF 2000 APPLICANT AND: CHRIS WHEELER IRENE MOSS LAURIE GLANFIELD YVONNE GRANT HARRY HERBERT SUZANNE JAMIESON RUTH McCOLL PETER RYAN RESPONDENTS BETWEEN: GAJA LAKSHMI PARAMASIVAM N 1192 OF 2000 APPLICANT AND: DAVID KEMP RESPONDENT BETWEEN: GAJA LAKSHMI PARAMASIVAM N 1193 OF 2000 APPLICANT AND: JOHN HOWARD RESPONDENT BETWEEN: GAJA LAKSHMI PARAMASIVAM N 1194 OF 2000 APPLICANT AND: TOM KARMEL RESPONDENT BETWEEN: GAJA LAKSHMI PARAMASIVAM N 1195 OF 2000 APPLICANT AND: BOB SENDT RESPONDENT BETWEEN: GAJA LAKSHMI PARAMASIVAM N 1196 OF 2000 APPLICANT AND: JOHN AQUILINA RESPONDENT JUDGES: HILL, CARR AND TAMBERLIN JJ DATE OF ORDER: 16 FEBRUARY 2001 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Leave to appeal against the decision of Moore J in each of the matters be refused. 2. The applicant pay the respondents' costs of the motions and applications for leave to appeal, in each of the matters. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY BETWEEN: GAJA LAKSHMI PARAMASIVAM N 1191 OF 2000 APPLICANT AND: CHRIS WHEELER IRENE MOSS LAURIE GLANFIELD YVONNE GRANT HARRY HERBERT SUZANNE JAMIESON RUTH McCOLL PETER RYAN RESPONDENTS BETWEEN: GAJA LAKSHMI PARAMASIVAM N 1192 OF 2000 APPLICANT AND: DAVID KEMP RESPONDENT BETWEEN: GAJA LAKSHMI PARAMASIVAM N 1193 OF 2000 APPLICANT AND: JOHN HOWARD RESPONDENT BETWEEN: GAJA LAKSHMI PARAMASIVAM N 1194 OF 2000 APPLICANT AND: TOM KARMEL RESPONDENT BETWEEN: GAJA LAKSHMI PARAMASIVAM N 1195 OF 2000 APPLICANT AND: BOB SENDT RESPONDENT BETWEEN: GAJA LAKSHMI PARAMASIVAM N 1196 OF 2000 APPLICANT AND: JOHN AQUILINA RESPONDENT JUDGES: HILL, CARR AND TAMBERLIN JJ DATE: 16 FEBRUARY 2001 PLACE: SYDNEY REASONS FOR JUDGMENT CARR J 1 In these matters the applicant seeks an extension of time in which to apply for leave to appeal from certain interlocutory judgments of a judge of this Court, and leave to appeal from those judgments. By consent, orders were made this morning extending the time for the applicant to apply for leave to appeal in each matter and an order was made dispensing with the filing or service of any notice of motion which might otherwise have been required. To the extent that orders are made granting leave to appeal, the applicant seeks to appeal against the orders made at first instance. Those orders, made in respect of each of the six above-mentioned matters, were to dismiss summarily all of the applications. Each of the applications alleged unlawful discrimination in respect of the applicant under the Racial Discrimination Act 1975 (Cth). factual background 2 The applicant was employed as an accountant by the University of New South Wales ("the University") for two periods of about nine months and four months respectively in 1998 and 1999. During the course of her employment, the applicant perceived deficiencies in the way in which the accounting system at the University operated. She formed the view that the manner in which funds were being used was being falsely reported. That led the applicant to make complaints within the University about that matter. 3 The University conducted an internal investigation into the matter. The applicant was, and remains, dissatisfied about the manner in which that matter was investigated. Thereafter she complained to the Prime Minister, Ministers of both the Commonwealth and the State of New South Wales, a Commonwealth departmental officer as well as the New South Wales Ombudsman, the Operations Review Team of the New South Wales Independent Commission Against Corruption and the New South Wales Auditor-General. procedural background 4 The applicant had previously complained about these matters to the Human Rights and Equal Opportunity Commission ("the Commission"). 5 On 6 April 2000 the hearings of those complaints were terminated by the President of the Commission on the grounds that she was satisfied that the complaints were lacking in substance. In barest summary, the complaints related to the handling by the respondents of correspondence from the applicant and refusals to investigate her allegations which, so she asserted, were because of her race. Each of the respondents has lodged a notice of motion seeking to have the notices of appeal struck out, either on the ground that they are incompetent or that they disclose no proper ground of appeal. Whether leave to appeal should be granted 6 In my view, the decisions under challenge are not attended with sufficient doubt to warrant them being reconsidered by this Court. Furthermore I do not think that substantial injustice would result if leave were refused supposing the decision to be wrong: Décor Corporation v Dart Industries (1991) 33 FCR 397. 7 The notices of motion for summary dismissal all came before the learned primary judge for directions on 22 August 2000. Directions were made for each side to file affidavit evidence. 8 Extensive evidence was filed by each party. The applicant, in particular, availed herself of that opportunity and filed voluminous affidavit evidence. If there had been further evidence which the applicant had hoped to adduce at trial, but which she had not been able to obtain by discovery or other curial process, she could either have said this in her affidavits or told the primary judge so at the hearing of the motions. 9 The applicant did not do so nor did she refer to any such possibility at the hearing of these matters today. One of the respondents was the subject of a request by the applicant to be present at the hearing of the motions, for possible cross-examination. We were informed, without objection, by counsel appearing for the Commonwealth respondents this morning, that that particular respondent, Dr Karmel, was made available for cross-examination at the hearing of the motions, but that the applicant did not cross-examine him. 10 His Honour (in his reasons for judgment, at paragraph 8), acknowledged that the respondents needed to establish a high degree of satisfaction in the Court before he summarily dismissed the proceedings. 11 In my view, tracking the language of the High Court of Australia in Webster v Lampard (1993) 177 CLR 598 at page 602, the material before the primary judge was such that the applications should not have been permitted to go to trial in the ordinary way, because it was apparent that they must fail. In my opinion, the primary judge can be seen, quite clearly, to have applied the correct stringent test before summarily dismissing these applications. 12 The notices of appeal which the applicant seeks to lodge reveal three similarly worded "grounds" of appeal. Each of those is based upon and relates solely to what is said to have been remarks made by the primary judge to the applicant during the course of oral submissions. 13 The first was a claim that the primary judge told the applicant that it was "traditional" for the relevant respondents not to reveal the basis of their decisions. Whether or not his Honour made such an observation in oral argument, (and the transcript of evidence of the proceedings shows that the applicant has misstated his Honour's remarks), it was not reflected in his reasons for dismissing the applications. 14 The next "ground" is that the primary judge is said to have indicated that he had not read the applicant's written responses to the respondent's written submissions. The transcript shows that his Honour said that he had read the written submissions which had been filed. The transcript also shows, in my view, that the applicant has misunderstood what the primary judge told her. 15 The final "ground" is that the primary judge told the applicant that he lacked resources to do a detailed study of her applications. The relevant passages of the transcript show, in my view, that there is no foundation for this complaint. 16 I would dismiss each of the applications for leave and order the applicant to pay the respondent's costs in all of the proceedings which were before the Court today. HILL J 17 I agree with the reasons given by Carr J and the orders that his Honour has foreshadowed. I would, however, make the following additional comments. 18 As Carr J and indeed the learned primary judge both have observed, the power to dismiss summarily is one that should be exercised with considerable caution. It would not be an appropriate occasion to dismiss a matter summarily where matters of fact remain to be determined and particularly where the evidence of disputed fact may not have yet been filed. The applicant's case below was that she had approached various organisations or persons for assistance and her correspondence had either been unanswered or her request for assistance ultimately denied and that by reviewing the correspondence and what had happened to her complaints a conclusion should be drawn that she was the subject of discrimination by reason of her racial background. It perhaps should be noted that the applicant originally came from Sri Lanka. 19 The rules provide, in cases such as the present, for the filing of an affidavit in support of an application to the Court in circumstances where a complaint against the Human Rights and Equal Opportunity Commission has been terminated. The affidavit is to set out the facts relevant to the application. 20 There may be cases where discrimination can be demonstrated by reference to matters of evidence. For example, a person against whom a complaint of discrimination is made may well say words which clearly demonstrate the discrimination. But, there will be many cases - the applicant suggests that the present is an example - where the discrimination will not be able to be proved directly by reference to oral or written statements. There may well be cases where discrimination may be able to be inferred from a course of conduct or even where, while the existence of a course of conduct might leave open the possibility of discrimination, proof of the discrimination would only be able to be made out if the person who wrote the correspondence were in fact cross-examined upon it. 21 The decision in the present case should not be taken as in any way involving this Court in deciding what should happen in a particular case should the situation be one where the only possibility of ultimately proving discrimination which is suspected is by cross-examination. The present case is different from that in at least two respects. Firstly, because the applicant did not suggest to the learned primary judge that she wished to cross-examine witnesses in a way that would make out her case. In such circumstances, a strikeout application should not succeed as there still remain issues of fact to be decided. Secondly, I am also influenced by the fact that the applicant chose not to cross-examine one of the decision-makers who was available for her to cross-examine and who apparently was, to her knowledge, in court at the time of the strikeout application. Accordingly, I too would refuse leave to appeal. TAMBERLIN J 22 I agree with the reasons and with the orders proposed by Carr J in this matter. HILL J 23 The order of the Court will be that leave to appeal against the decision of Moore J in each of the matters be refused. 24 In the ordinary case, costs would follow the event and accordingly the applicant for leave should pay the costs of the motions and applications for leave to appeal. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate: Dated: 13 March 2001 The Applicant appeared in person Counsel for the State Respondents K Eastman (N1191, N1195 and N1196 of 2000): Solicitor for the State Respondents Crown Solicitor's Office (N1191, N1195 and N1196 of 2000): Counsel for the Commonwealth Respondents J Griffiths (N1192, N1193 and N1194 of 2000): Solicitor for the Commonwealth Respondents Clayton Utz (N1192, N1193 and N1194 of 2000): Date of Hearing: 16 February 2001 Date of Judgment: 16 February 2001