Paramasivam v Shier [2001] FCA 545

FEDERAL COURT OF AUSTRALIA

Paramasivam v Shier [2001] FCA 545

GAJA LAKSHMI PARAMASIVAM v JONATHAN SHIER & ANOR N 135 OF 2001 LINDGREN J 4 MAY 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 135 OF 2001

BETWEEN: GAJA LAKSHMI PARAMASIVAM

APPLICANT

AND: JONATHAN SHIER

FIRST RESPONDENT

GARY LINNANE

SECOND RESPONDENT

JUDGE: LINDGREN J

DATE OF ORDER: 4 MAY 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs. 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 135 OF 2001

BETWEEN: GAJA LAKSHMI PARAMASIVAM

APPLICANT

AND: JONATHAN SHIER

FIRST RESPONDENT

GARRY LINNANE

SECOND RESPONDENT

JUDGE: LINDGREN J

DATE: 4 MAY 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 By a notice of motion filed on 10 April 2001 the respondents move the Court pursuant to Order 20, rule 2, of the Federal Court Rules for orders that the application be dismissed and that the applicant pay the respondents' costs. 2 By the application which commenced the proceeding the applicant alleged unlawful discrimination against her by the first respondent ("Mr Shier"), the Managing Director of the Australian Broadcasting Corporation ("ABC"), and by the second respondent ("Mr Linnane"), the Director of Corporate Affairs at the ABC. The applicant was entitled to make the application to the Court by section 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) because a complaint she had made to the Human Rights and Equal Opportunity Commission ("the Commission") had been terminated pursuant to par 46PH(1)(c) of that Act and she had been notified of the termination by a notice of termination issued by the President of the Commission dated 23 January 2001. 3 For the respondents to succeed under O 20 r 2 it must appear to the Court that no reasonable cause of action is disclosed or that the proceeding is frivolous or vexatious or that the proceeding is an abuse of the process of the Court. 4 In order to describe the nature of the proceeding I will give a short chronological account based on the affidavit evidence which is before me. 5 On 24 June 2000 the applicant wrote to Mr Shier in relation to an intended restructuring of the ABC. She said in the letter that she was a regular viewer of "The 7.30 Report" and wished to express her views about the restructuring. For example, she expressed the opinion that the existing staff were capable of delivering good service. 6 On 7 July 2000 Mr Linnane responded saying that Mr Shier had asked him to thank the applicant for her letter. Mr Linnane advised the applicant that she could be assured that there were no present plans to make changes to "The 7.30 Report" and that there was no diminution in the ABC's commitment to its statutory obligation to provide independent news and current affairs programs on a regular basis on each of its broadcasting services. 7 On 15 July 2000 the applicant wrote to Mr Linnane thanking him for his assurances and for his response to her earlier letter. 8 On 27 October 2000 the applicant wrote to Mr Shier expressing her feelings about his management of ABC funds. The letter was a rather lengthy one and made a number of criticisms of Mr Shier's management of the ABC. 9 On 5 December 2000 the applicant again wrote to Mr Shier a letter, this time headed "Corruption". The letter contained this sentence: "You claimed that you responded to every letter of complaint. Your failure to respond to mine confirms that you treat people unequally and in this instance you have discriminated against my ethnic knowledge." Later in the letter the applicant referred to anti-discrimination laws and alleged that many senior administrators at the University of New South Wales had acted "in breach of the laws of Equality". The letter also contained this sentence: "The President of the Anti-Discrimination Board considered the decision by the Sydney Olympics Committee not to allow food to be taken in from the outside to be in breach of the anti-discrimination laws." 10 On 13 December 2000 Mr Linnane replied to the applicant's letters of 27 October and 5 December. The reply denied that there had been any discrimination against the applicant's "ethnic knowledge" or that the ABC had discriminated against her in any way. 11 On 14 December 2000 the applicant wrote to Mr Linnane again. The letter complained that it was not enough for Mr Linnane to have written on behalf of Mr Shier. The letter again asserted that Mr Shier had "discriminated against [her] ethnic knowledge". The applicant said that her allegation was not that the ABC itself had discriminated against her but that Mr Shier had discriminated against her "ethnic knowledge". In the final paragraph of the letter the applicant again referred to discrimination by Mr Shier against her. 12 On 19 December 2000 Mr Linnane wrote to the applicant assuring her that he was authorised to respond on behalf of the ABC. The letter explained that Mr Shier, as Managing Director, received much mail and was unable to respond to every letter personally. The letter said that the ABC rejected the allegation that Mr Shier had discriminated against the applicant. 13 On 21 December 2000 the applicant wrote a lengthy letter to Mr Linnane asserting that she had substantiated her statements in her correspondence that Mr Shier had discriminated against her. 14 On 9 January 2001 she wrote to Mr Shier. The final paragraph in the letter was as follows: "Since you have failed to respond to my expressions of ethnic wisdom and this means you have not valued my contribution on an Equal plane to other owners and customers - I propose to complain to the Human Rights and Equal Opportunity Commission that you have discriminated against me on the basis of my Race." 15 On the same day, 9 January 2001, the applicant wrote to the President of the Commission alleging that Mr Shier and Mr Linnane had discriminated against her on the basis of her race and that they had not responded to her "expressions of Ethnic Knowledge". 16 On 16 January 2001 Mr Linnane replied to the applicant's letter of 9 January 2001, denying that Mr Shier and he had discriminated against the applicant on the basis of her race. 17 On 23 January 2001 the President of the Commission issued a notice of termination of the applicant's complaint of racial discrimination against Mr Shier and Mr Linnane on the ground that the complaint was lacking in substance. There was attached a letter from the President of the Commission to the applicant containing reasons, the key paragraph of which was the following: "The evidence before me does not indicate that Mr Shier and Mr Linnane are not responding to your letter because of your race. Accordingly, I am satisfied that your complaint is lacking in substance and I have terminated your complaint on that basis." 18 It is clear that the applicant's case of unlawful discrimination depends on the correspondence – there has been no personal contact between the applicant and either Mr Shier or Mr Linnane. 19 In my opinion, no reasonable cause of action of unlawful discrimination is shown. In the course of the hearing of the motion the applicant submitted that certain other people would have been responded to differently by Mr Shier and Mr Linnane if they, rather than she, had been writing to them. The applicant referred to people who hold official or prominent positions in society and who have "power" as against people placed as the applicant is. It may be that a letter from such people would have been responded to differently but that would not be because of the race of the writer. 20 In response, the applicant said that she occupies a lowly position in society which is attributable to her race, so that any differential treatment of her is ultimately attributable to her race. There is no evidence before me supporting this general assertion made by the applicant from the Bar table. However, although profound questions may be raised by the submission, any differential treatment of the kind hypothesised would not be "based on race" or "by reason of race" for the purposes of the various provisions, such as s 9 and s 13, of the Racial Discrimination Act 1975 (Cth). 21 In the circumstances, because no reasonable cause of action is disclosed, the application should be summarily dismissed. The Court orders that: 1. The application be dismissed; 2. The applicant pay the respondents' costs.