FEDERAL COURT OF AUSTRALIA Maghiar v State of Western Australia [2002] FCA 262 HUMAN RIGHTS - discrimination - discrimination on grounds of race and disability - alleged mistreatment by police on three occasions in relation to arrests - no case submission - evidence taken at its highest does not involve allegation of nexus between mistreatment and race or disability - essential element of case missing - no case submission correctly upheld. Disability Discrimination Act 1992 (Cth) Racial Discrimination Act 1975 s 9 Human Rights and Equal Opportunity Commission Act s 46PH(1)(c) and s 46PH(1)(f) Travers v State of New South Wales [2000] FCA 1565 Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573 ACCC v Amcor Printing Papers Group Limited (2000) 169 ALR 344 J Corp v Australian Builders Labourers Federated Union of Workers (Western Australian Branch) (No 2) (1992) 38 FCR 458 Rasomen Pty Ltd v The Shell Company of Australia Ltd (1996) 71 FCR 540 Compaq Computer Australia Pty Ltd v Merry (1998) 157 ALR 1 TNT v Brooks (1979) 23 ALR 345 GEORGE MAGHIAR v STATE OF WESTERN AUSTRALIA W492 OF 2001 FRENCH J 15 MARCH 2002 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRLIA DISTRICT REGISTRY W492 OF 2001 On appeal from the decision of Raphael FM in the Federal Magistrates' Court BETWEEN: GEORGE MAGHIAR APPELLANT AND: STATE OF WESTERN AUSTRALIA RESPONDENT JUDGE: FRENCH J DATE OF ORDER: 15 MARCH 2002 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's 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 WESTERN AUSTRLIA DISTRICT REGISTRY W492 OF 2001 On appeal from the decision of Raphael FM in the Federal Magistrates' Court BETWEEN: GEORGE MAGHIAR APPELLANT AND: STATE OF WESTERN AUSTRALIA RESPONDENT JUDGE: FRENCH J DATE: 15 MARCH 2002 PLACE: PERTH REASONS FOR JUDGMENT Introduction 1 George Maghiar comes from Romania and suffers a number of medical conditions. He complains that members of the Western Australia Police Force have mistreated him on a number of occasions in a way which he says amounts to unlawful discrimination on account of his ethnicity and his disability. His complaint has been rejected by the Human Rights and Equal Opportunity Commission ("the Commission") and dismissed by the Federal Magistrates' Court. He now appeals to this Court. The critical question on the appeal is whether his evidence, if accepted, would disclose a case of unlawful discrimination. History of Proceedings 2 On 6 July 2000, George Maghiar made a complaint to the Commission against the Western Australian Police Force in which he alleged discrimination contrary to the Disability Discrimination Act 1992 (Cth) and the Racial Discrimination Act 1975. On 22 March 2001, the President of the Commission decided to terminate the complaint on the basis that it was lacking in substance and had already adequately been dealt with by another statutory authority. The termination decision was made pursuant to s 46PH(1)(c) and s 46PH(1)(f) of the Human Rights and Equal Opportunity Commission Act ("HREOC Act"). 3 On 18 April 2001, Mr Maghiar filed a complaint in this Court under s 46PO of the HREOC Act seeking compensation in respect of the subject of complaint to the Commission. The application was referred to the Federal Magistrates' Service by Nicholson J on 3 May 2001. The hearing proceeded on 9 October and on that day Raphael FM dismissed the application upon a submission of no case to answer made on behalf of the State of Western Australia. Reasons for his decision were published on 11 October. Mr Maghiar now appeals to this Court from that decision. The Content of the Complaint 4 Mr Maghiar's original complaint to the Commission was lodged on his behalf by an advocate at the Ethnic Disability Advocacy Centre. It specified his country of birth as Romania and his disability as "lower back problems". His main source of income was said to be disability support payment. He was not employed at the time of the alleged discrimination. He identified the Traffic Police-Camera Section of the Western Australian Police Service as the organisation complained about. He also named two officers and referred to a third unnamed female officer as persons complained about. He indicated that he had already made complaints to the Western Australian Ombudsman and to the Equal Opportunity Commission of Western Australia in relation to the matters the subject of complaint to the Commission. His complaints were of alleged discrimination because of his race and because of his disability. Under the question "What happened to you?" on the form there was a reference to "see attached documents". However nothing appears, from the Court record, to have been attached which set out the actual events constituting the complaint. 5 There was a handwritten list of medical conditions from which he apparently suffered provided by the Ballajura Family Practice. These included diabetes, depression, asthma and back pain. The list also referred to various prescription drugs relating to each of these conditions. In the event, it appears that by the time the matter was finally considered by the Commission and the decision made to terminate the complaint Mr Maghiar was describing his disability as "depression and stress". 6 The Commission referred to two incidents said to have been the occasion of unlawful discrimination. The dates of these two incidents appears to have been the subject of some confusion on the part of the Commission. This was eventually clarified in the proceedings before Raphael FM who identified three events of discrimination alleged by Mr Maghiar in his evidence. The first related to treatment meted out to Mr Maghiar by police when arresting him at his home on 2 July 1999 in execution of a warrant of apprehension issued by the Registrar of the Magistrates Court of Victoria. The warrant was issued in respect of a $165 speeding fine together with court costs of $33.50 and Agency costs of the same amount. On Mr Maghiar's evidence before Raphael FM the arresting police, who were from Ballajura, disregarded his claim that he had a letter to show he was "not guilty". They also disregarded his claim that he was ill. They forced him into their car "like an animal". They drove in a frightening manner. At the lockup they made him take off his shoes and socks and let him stay on icy concrete. He was arrested at 20:35 according to the warrant and the next day he appeared before a magistrate who released him on bail and gave him thirty days to find the allegedly exonerating letter. In the event the letter was produced. It was dated 29 April 1998 and signed by the prosecution officer at the Traffic Camera Office of the Victoria Police. It referred to the penalty notice which had led to the issue of the warrant and said: "I wish to advise you that no further Police action will be taken against you in relation to the abovementioned matter." The only evidence which raised the question of any link between Mr Maghiar's ethnicity and the treatment he received was given in the course of an answer in cross-examination where he said, inter alia: "…I stay on the icy concrete and no socks and no shoes, and very interesting, with me was five Aborigine. (sic) They have socks, they have shoes and other ten Aussies all have socks and shoes and me, ethnic, no socks and no shoes." It was put to him the requirement that he remove his shoes and socks followed an assessment of his risk of self harm. His answer appeared to indicate that he did not know whether such an assessment was done. He then said, however: "Because probably they think I become crazy or animal or who they know? They can do anything." 7 Raphael FM observed that the incident which occurred on 2 July 1999 was evidently not dealt with by the Commission which confused it with one that took place on 16 June 2000. It might have been open to the State to argue that the unlawful discrimination alleged in the application to the Court was not the same in substance as the unlawful discrimination that was the subject of the terminated complaint - HREOC Act s 46PO(3). However, counsel for the State was content to allow the complaint to remain as part of the case pending the outcome of his submission for dismissal on the basis that there was no case to answer. 8 The second incident is said to have occurred on 5 November 1999. Mr Maghiar said that late in October of that year he received a notice indicating that he had been photographed travelling at 92 kilometres per hour in a 60 kilometre per hour speed zone in the Mundaring area on Great Eastern Highway. At the time, according to Mr Maghiar, he had been travelling through an intersection in a vehicle towing a trailer. He was following another vehicle driven by his neighbour, Mr Nistor, who was also towing a trailer. They both knew there was a speed camera at the intersection as they had driven through it earlier. Mr Nistor went through and the light did not flash. However, as Mr Maghiar went through a red car overtook him at speed and the light did flash. Mr Maghiar contended that he was not speeding. 9 When he received the advice of the offence, Mr Maghiar said he went to the Traffic Camera Section of the WA Police Service. He had been told previously that if he wanted to get a copy of the speed camera photograph of his car he would have to pay $11.40. He made an appointment to go in on 5 November 1999. He went there early in the morning with his son. A woman officer told him to pay the cashier $11.40. He did that and brought the receipt back. He was given a photograph in an envelope. He did not open it at the time. However, later on in St George's Terrace he did open it and noticed that the photograph did not show Mr Nistor's trailer although it did show his own. He claimed, in the course of some additional evidence given before Raphael FM in relation to this incident, that he had first visited the Police Traffic Camera Section in October in company with his neighbour and that they had then inspected a photograph which showed Mr Nistor's trailer in front of his, Mr Maghiar's car (transcript p 55). When that trailer did not appear in the photographs he was given in November, he became very annoyed. He returned to the Police Station and accused the police of manufacturing the photograph in Honolulu or Hong Kong. He asked a sergeant there why they had cheated him. An altercation followed. In the event, another police officer or sergeant grabbed him from the back and told him he was sick. He was escorted out of the premises. He went back in. He was then arrested and charged with various offences. He maintained before Raphael FM that the police had conspired to use false evidence and to destroy evidence, namely the negative of the photograph, and furthermore to deny him access to a public building. 10 The third incident is said to have taken place on 16 June 2000 when he was arrested at his home for breach of a restraining order taken out by his wife. He said that while travelling in the police car from his home to the Warwick Police Station the arresting police called him a criminal and a terrible man. He alleges that one of the police made a notice on white cardboard paper reading "I am George Maghiar, I am a criminal" and hung it on his chest before he was photographed. Mr Maghiar said he then sat on a bench, felt ill and lay on the floor. While he was lying on the floor he claimed he was kicked in the ribs, leg and shoulder. He thought he was having a heart attack. He woke up in hospital where a bedside hearing was being conducted. He was released on bail. He claimed that he had had an angina attack on that day and on the subsequent days. He said the officers had danced around him and abused him. 11 Three unsworn witness statements were received in evidence, evidently by consent. One by Elizabeth Maghiar, his wife, referred to his arrest on 2 July 1999 and was broadly confirmatory of his account of his arrest on that occasion. She said however that he was given no time to put his shoes on. She said also he was not allowed to take with him his medication for back and heart problems. A statement by his son, Sorin Maghiar, referred to the visit to the Traffic Camera Section on 5 November 1999 and again was broadly confirmatory of the account given by Mr Maghiar. The third statement by George Nistor confirmed that Mr Maghiar had been following him and that he was going under the speed limit and didn't get flashed and could not see why Mr Maghiar had been flashed by the multi nova camera. The Magistrate's Reasons for Decision 12 In his reasons for decision on the State of Western Australia's no case submission, Raphael FM identified the three incidents of discrimination which were asserted by Mr Maghiar. He accepted that Mr Maghiar genuinely felt that he had been wronged by the Western Australian Police Service. Mr Maghiar could not understand why no investigative authority had agreed with him. He feared a cover up by police. Raphael FM noted that Mr Maghiar blames his current poor health on these incidents. Mr Maghiar said that he had come to the court not because he was ethnic but to see if he had rights in Australia. He claimed that if he were born in Australia his problems would have been fixed. 13 Raphael FM referred to authority in relation to no case submissions in civil proceedings. He concluded that if the evidence offered by Mr Maghiar could do no more than give rise to conjecture about the nexus between the alleged conduct and his accepted disability or racial characteristics he could not find for him. He said in conclusion: "I have heard the evidence and putting it at its highest find no such nexus. It is proper in those circumstances to dismiss the claim." The Statutory Scheme 14 Section 9(1) of the Racial Discrimination Act 1975 provides: "9(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, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life. . . . 9(2) A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention." 15 The Convention referred to is the International Convention on the Elimination of all Forms of Racial Discrimination. Article 5 of the Convention involves the undertaking by the States Parties 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 rights which are then set out in that Article. These include: "(a) The right to equal treatment before the tribunals and all other organs administering justice; (b) The right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual, group or institution; . . . (d) Other civil rights, in particular: (i) The right to freedom of movement and residence within the border of the State;" 16 There does not appear to be any provision of the Disability Discrimination Act which is directly apposite to Mr Maghiar's complaint. Section 24 prohibits discrimination on the grounds of disability in the provision of goods, services and facilities. It may be that this could be said to have some application in relation to the supply of the multi nova photograph. However, the complaint in relation to each of the three incidents is concerned with Mr Maghiar's arrest and the way in which he was treated in that connection. On the face of it, it does not fit within s 24 or any other provision of the Disability Discrimination Act. There is a reference in s 29 of that Act to the administration of Commonwealth laws and programs but not to the enforcement of State law. 17 The complaint to the Commission having been terminated under s 46PH of the HREOC Act, application was made to this Court under s 46PO which provides, inter alia: "46PO(1) If: (a) a complaint has been terminated by the President under section 46PE or 46PH; and (b) the President has given a notice to any person under subsection 46PH(2) in relation to the termination; any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Magistrates Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint." There is a time limit of twenty eight days under s 46PO(2). Then under s 46PO(3) it is provided: "The unlawful discrimination alleged in the application: (a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or (b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint." 18 As has already been noted the incident of July 1999 may not have properly been the subject of complaint before the Commission and it may have been open to the State to argue that the Federal Magistrates' Court could not entertain it. The approach taken, however, was a pragmatic one in the circumstances given the rather broad nature of the original complaint. It also had regard to the requirement of the HREOC Act itself that in proceedings under that Act the Court is "not bound by legal technicalities and forms" (s 46PR) albeit it must respect the substantive directions given in s 46PO(3) - as to which generally see Travers v State of New South Wales [2000] FCA 1565 (Lehane J) and Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573 (Katz J). 19 The powers of the Court to grant relief on an application under the Human Rights and Equal Opportunity Commission Act are specified in s 46PO(4). The orders that the Court may make include: "(a) An order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination; . . . (d) An order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent. . . . (f) An order declaring that it would be inappropriate for any further action to be taken in the matter." Procedure on a No Case Submission 20 There is no rule of the Federal Magistrates' Court which specifically provides for a no case submission. Nor does the Act appear to deal with that topic. The power of the Federal Court to entertain such a submission is said to derive from O 35 r 1 of the Federal Court Rules - ACCC v Amcor Printing Papers Group Limited (2000) 169 ALR 344 at 356-357 (Sackville J). Order 35 r 1 provides: "The Court may, at any stage of any proceedings, on the application of any party, pronounce such judgment or make such order as the nature of the case requires, notwithstanding that the applicant does not make a claim for relief extending to that order in any originating process." 21 If it be the case that the Federal Magistrates' Rules are insufficient to support the power to entertain a no case submission, that Court may rely upon its Rule 1.05(2) which provides that, if in a particular case, its rules are insufficient or inapposite the Court may apply the Federal Court Rules or the Family Court Rules in whole or in part and modified or dispensed with as necessary. 22 It does not appear in this case that counsel for the State was required to elect before making his no case submission. However the requirement for election is a matter of judicial case management - J Corp v Australian Builders Labourers Federated Union of Workers (Western Australian Branch) (No 2) (1992) 38 FCR 458 at 461. Australian authorities favour a flexible approach to the question of election: "Even the general rule that a defendant should be called upon to elect before submitting that there is no case to answer must give way to particular circumstances. The discretion of a court to determine a case at an early stage when appropriate, has been repeatedly asserted." - Stevenson v Barham (1997) 136 CLR 190 at 202 (Mason and Jacobs JJ). See also Rasomen Pty Ltd v The Shell Company of Australia Ltd (1996) 71 FCR 540 and Compaq Computer Australia Pty Ltd v Merry (1998) 157 ALR 1. A flexible approach to the question of election is particularly applicable in proceedings under the HREOC Act where the Court is not bound by technicalities or legal forms (s 46PR). 23 Although counsel for the State was not put to his election in this case, given the nature of his submissions, which went to the sufficiency of the evidence as a matter of law to support the complaints made, there was error in allowing him to proceed in that way. Whether the Learned Magistrate Erred in Dismissing the Application 24 In considering the test to be applied on a no case submission, Raphael FM referred to the observation of Gibbs J in TNT v Brooks (1979) 23 ALR 345 at 349 that: "…it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture…". In the case before him, he translated that test thus: "If I cannot do more than merely conjecture upon the nexus between the alleged conduct and the accepted disability or racial characteristic, I cannot find for the Applicant." His finding went beyond that test for he said, having heard the evidence and putting it at its highest, he found no such nexus. 25 It is sufficient for present purposes to say that if, accepting all of Mr Maghiar's factual allegations, essential elements necessary to establish the relevant unlawful conduct are missing, then there is no case to answer. It is not necessary in these circumstances to consider whether the evidence does no more than give rise to conflicting inferences of equal degrees of probability. The question is sharper and starker than that. Does the evidence, if accepted, disclose as a matter of law, a case of discrimination of the kind prohibited by the Racial Discrimination Act 1975 or the Disability Discrimination Act 1992? 26 In my opinion, the evidence did not disclose such a case. Indeed, neither did the original complaint to the Commission. Accepting Mr Maghiar's evidence at its highest, he alleges, in effect, that he was mistreated by police on three occasions. There is, however, nothing in those allegations to link the alleged mistreatment to his ethnicity as a Romanian nor to his claimed disability whether that be lower back pain or any of the various other conditions from which he is said to be suffering. Indeed, it is not clear what, if any, provision of the Disability Discrimination Act 1992 would be applicable to the case even if it could be said that his treatment was somehow related to his disability. 27 As I said to Mr Maghiar and his friend, Mr Sewell, who appeared in Court to support him, there might be occasions in which mistreatment could be linked to race or disability by circumstantial evidence rather than by direct evidence. But in this case there was nothing, even of a circumstantial character, which would enable that inference to be drawn. In so saying, I acknowledge that Mr Maghiar claimed that when he was placed in the lockup in July 1999 he was the only person not allowed to keep his shoes and socks on. Five Aborigines and ten other people were permitted to keep their shoes and socks on. This evidence, which suggests he was the only person without shoes and socks, does not support a claim of discrimination based on ethnicity. It suggests, if anything, a measure to protect him against the possibility of self-harm. In any event, it does not fall within the category of nullifying or impairing his enjoyment of any relevant human right or fundamental freedom identified in Article 5 of the Convention and incorporated by reference in s 9 of the Racial Discrimination Act. In my opinion the Magistrate was correct. The relevant nexus was not made out and the application was rightly dismissed. Conclusion 28 For the preceding reasons this appeal will be dismissed with costs. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate: Dated: March 2002 Mr G Maghiar appeared in person. Counsel for the Respondent: Mr AJ Sefton Solicitor for the Respondent: Crown Solicitor for the State of Western Australia Date of Hearing: 21 February 2002 Date of Judgment: 15 March 2002