Paramasivam v Grant [2001] FCA 882

FEDERAL COURT OF AUSTRALIA

Paramasivam v Grant [2001] FCA 882

PRACTICE AND PROCEDURE – summary dismissal Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 46P Racial Discrimination Act 1975 (Cth) s 9, s 13 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 referred to McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409 referred to Paramasivam v Wheeler (2001) FCA 231 referred to Webster v Lampard (1993) 177 CLR 598 referred to GAJA LAKSHMI PARAMASIVAM v W GRANT AND ANOR N 238 OF 2001 HELY J 4 JULY 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 238 OF 2001

BETWEEN: GAJA LAKSHMI PARAMASIVAM

APPLICANT

AND: W GRANT

FIRST RESPONDENT

B DEBUS

SECOND RESPONDENT

JUDGE: HELY J

DATE OF ORDER: 4 JULY 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed with 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 238 OF 2001

BETWEEN: GAJA LAKSHMI PARAMASIVAM

APPLICANT

AND: W GRANT

FIRST RESPONDENT

B DEBUS

SECOND RESPONDENT

JUDGE: HELY J

DATE: 4 JULY 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 On 10 January 2001 the applicant lodged a written complaint with the Human Rights & Equal Opportunity Commission ("HREOC") pursuant to s 46P of the Human Rights & Equal Opportunity Commission Act 1986 alleging unlawful discrimination on the part of Mr W Grant, the Director-General of the New South Wales Attorney General's Department, and Mr B Debus, the New South Wales Attorney General. 2 In her letter of complaint the applicant appears to assert that the respondents discriminated against her, first, because they delayed in replying to correspondence; second, they failed to provide specific answers to questions which the applicant had asked about the legal system; and third, because they refused to provide the services of the Attorney General or his Department to the applicant because of her race. 3 The respondents' conduct was said by the applicant to be in breach of s 9 and s 13 of the Racial Discrimination Act 1975 ("RDA") and of article 5 of the schedule attached to the Act. 4 On 20 February 2001 the President of the Commission, Professor Alice Tay, terminated the complaint pursuant to s 46PH(1)(c) of the Human Rights & Equal Opportunity Commission Act ("HREOC Act") on the ground that the complaint was lacking in substance. On 14 March 2001 an application was made to the court under s 46PO of the HREOC Act alleging unlawful discrimination on the part of the respondents to the terminated complaint. 5 The discrimination of which the applicant complained is described in par 11 of the application alleging unlawful discrimination as follows: "My expressions of corporate wisdom were not treated on the same basis as those from others in positions of power." 6 Paragraph 11(a) identified the RDA and in particular s 9, s 13(b), and article 5(a), 5(c), 5(e)(i) and 5(e)(v) as being the Act under which the actions of which the applicant complained were said to be unlawful. 7 Order 81 rule 5(2) of the Federal Court Rules requires that the application be accompanied by an affidavit in support of the application. An affidavit of the applicant of 14 March 2001 was relied upon in that respect. That affidavit recounts the applicant's complaints that executives of the University of New South Wales, whom she named, were responsible for effectively blocking her entry back into the University of New South Wales as an employee, resulting in a wastage of public funds and abuse by those executives, "who through their actions had revealed that they have something to hide". 8 The affidavit then makes the following assertions which related to her present application more directly and I quote: "I therefore sought the services of the Attorney General to find out what avenues were open to me in ensuring that the Laws of Equality are practised by the UNSW." The affidavit went on: "The advice I received was for me to go to a private lawyer. I therefore failed to receive the services of the Attorney General - for which I have paid my taxes on an Equal Basis to any other member of the Public - be they in senior positions of Government or ordinary members of the Public." The affidavit continued: "Mr Debus and W Grant have covered up the truth - because they want to enjoy the pleasures of their positions without truly working for them. They covered up by covering their ears to the sound of Ethnic Knowledge. Had they not been blinded by my lower position in society - they would have seen the truth of my statements and done their jobs by servicing me as an Equal member of the Public - as they are required to do by law." 9 On 4 May 2001, the respondents filed a Notice of Motion that the proceedings be summarily dismissed pursuant to Order 20 rule 2(1) of the Federal Court Rules. The motion was supported by an affidavit of Mr W Grant which annexed relevant correspondence and which included the following statement in paragraph 14: "I deny that the Applicant's race was a reason in refusing to provide legal representation for her. The Applicant's race was totally irrelevant to the reasons I explained to her in my letter dated 15 September 2000." 10 Mr Grant was called for cross-examination. In his evidence-in-chief he indicated that what he had meant to convey by par 14 was that the statements made in the letter of 15 September had nothing whatsoever to do with the applicant's race. As I have said, the applicant cross-examined Mr Grant on his affidavit but the cross-examination, in my view, led nowhere. It did not call into question Mr Grant's denial, which I have quoted. Ms Paramasivam did not refer in her submissions to any evidence given by Mr Grant as supporting her case. 11 On 4 May 2001 I gave directions in relation to the preparation for hearing of the respondent's Notice of Motion. Those directions included a direction that the applicant should file and serve any affidavits and an outline of submissions on which she proposed to rely by way of opposition to the respondent's motion by a date which I fixed. On 14 June 2001 the applicant filed an affidavit asserting that she had not received a substantive response to questions which she had asked in various letters which were attached to the affidavit of Mr Grant. 12 That affidavit tends to confirm what I would have inferred in any event, namely that the case for unlawful discrimination is based on the correspondence passing between the applicant and officers of the Attorney General's department. The evidence does not establish any other contact between the applicant and officers of the Attorney General's department and there is no other evidentiary foundation for a case of unlawful discrimination. 13 On 18 May 2001, the respondent lodged detailed written submissions as to why the proceedings should be summarily dismissed. Those submissions are with the papers and I do not propose to incorporate them into these reasons for judgment. On 14 June 2001, the applicant filed a written outline of her submissions which is also with the papers, and again, I do not propose to incorporate the substance of that outline in these reasons. It is sufficient if I say, for present purposes, that the applicant's outline did not respond in any meaningful way to the respondent's submissions as to why the proceedings should be summarily dismissed. 14 The power to order summary judgment must be exercised with "exceptional caution" and "should never be exercised unless it is clear that there is no real question to be tried": General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129; McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409 at 415-416. The circumspection which must be exercised before summarily dismissing an application, was referred to by the Full Court in Paramasivam v Wheeler (2001) FCA 231 which was a case similar to the present in as much as it was an appeal from a decision of Moore J directing that a claim brought by the same applicant should be summarily dismissed. Whilst circumspection is appropriate, if the evidence before the Court establishes that if the matter were to go to trial in the ordinary way the application must fail, then a case for summary dismissal of the proceedings is made out: Webster v Lampard (1993) 177 CLR 598. 15 As I indicated, the applicant's claim is based upon the correspondence. The correspondence is attached to the affidavit of Mr Grant and the effect of relevant letters is summarised in the respondent's submissions. In my view, the correspondence is incapable of sustaining a conclusion that the respondents were guilty of unlawful conduct pursuant to s 9 or s 13 of the RDA. 16 Dealing firstly with s 13, neither the Attorney General's Department nor the respondents provide relevant services to the public or a section of the public so as to trigger the potential application of s 13. In a letter of 21 July 2000, the Director-General wrote to the applicant as follows: "The Attorney General has requested that I respond to your further letter concerning racial discrimination. I regret the delay that has arisen in responding to your representations. Whilst your views have been carefully noted, I must advise that as your matter involves your personal legal interests it is not proper for the Attorney General or officers of his Department to provide you with legal advice or become involved in court proceedings or legal matters between private citizens. To provide legal advice to private individuals in personal legal matters is not part of the Attorney General's role. In these circumstances I can only suggest that you continue to be led by your legal representative in relation to the matters raised in your representations. I trust the information provided is of assistance to you and I thank you for raising your concerns with the Attorney General." Advice as to the proper role of the Attorney General and his Department was repeated in the letters of 15 September 2000 and 5 January 2001. 17 Nor, in my view, is there any 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. The applicant describes herself as being Indian/Sri Lankan in origin and it may be that she honestly believes that she has been discriminated against for that reason. She asserts as much in her complaint, and counsel for the respondents accepted, during the course of her submissions, that the applicant may genuinely hold the views which she expounds. However, that belief is insufficient to establish the fact of racial discrimination and there is no other evidence capable of sustaining it. 18 As to s 9 of the RDA, a threshold requirement so far as the circumstances of the present case are concerned, is that there be an act involving a distinction or an exclusion which has the purpose or effect of nullifying or impairing the recognition or enjoyment of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life. 19 Then "human right" is defined in s 9(2) by reference to the human rights described in the Schedule to the Convention. There are no human rights as so defined which could be nullified or impaired by the applicant's dealings with the respondents. Nor is there any evidence that the respondents treated the applicant adversely because of her race or, to use her words, her low position. 20 The applicant's submissions assert that the only possible explanation for the respondents' conduct is that they were activated by racist considerations. That is just not so. Another explanation for what they did and why they did it is the explanation which was given in the correspondence to which I have referred. 21 In my judgment the applicant's case is bound to fail if it were to go to trial and the respondents' motion should therefore be upheld. I order that the application be dismissed pursuant to Order 20 rule 2(1); and I order that the applicant should pay the respondents' costs of the proceedings and of the motion. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.