FEDERAL COURT OF AUSTRALIA Barnes v Northern Land Council [2002] FCA 901 RODNEY BARNES v NORTHERN LAND COUNCIL and AUSTRALIAN AGRICULTURAL CO. LTD and NORTHERN TERRITORY POLICE and ABORIGINAL & TORRES STRAIT ISLANDER COMMISSION and CENTRAL AUSTRALIAN ABORIGINAL LEGAL AID SERVICE D.7 of 2002 MANSFIELD J 31 JULY 2002 ADELAIDE (HEARD IN DARWIN) IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY D.7 OF 2002 BETWEEN: RODNEY BARNES APPLICANT AND: NORTHERN LAND COUNCIL FIRST RESPONDENT AUSTRALIAN AGRICULTURAL CO. SECOND RESPONDENT NORTHERN TERRITORY POLICE THIRD RESPONDENT ABORIGINAL & TORRES STRAIT ISLANDER COMMISSION FOURTH RESPONDENT CENTRAL AUSTRALIAN ABORIGINAL LEGAL AID SERVICE FIFTH RESPONDENT JUDGE: MANSFIELD J DATE OF ORDER: 31 JULY 2001 WHERE MADE: ADELAIDE (HEARD IN DARWIN) THE COURT ORDERS THAT: 1. The application is refused. 2. The applicant pay to the respondents costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY D.7 OF 2002 BETWEEN: RODNEY BARNES APPLICANT AND: NORTHERN LAND COUNCIL FIRST RESPONDENT AUSTRALIAN AGRICULTURAL CO. LTD SECOND RESPONDENT NORTHERN TERRITORY POLICE THIRD RESPONDENT ABORIGINAL & TORRES STRAIT ISLANDER COMMISSION FOURTH RESPONDENT CENTRAL AUSTRALIAN ABORIGINAL LEGAL AID SERVICE FIFTH RESPONDENT JUDGE: MANSFIELD J DATE: 31 JULY 2002 PLACE: ADELAIDE (HEARD IN DARWIN) REASONS FOR JUDGMENT 1 This is an application under O 52 r 15(2) of the Federal Court Rules for an order extending the time within which the applicant may appeal from a decision of a Federal Magistrate given on 10 April 2002 reported as Barnes v Northern Land Council & Ors [2002] FMCA 54. The magistrate summarily dismissed an application by the applicant against each of the respondents made on 17 August 2001 under r 13.10 of the Federal Magistrates Court Rules, the parallel rule to O 20 r 2 of the Federal Court Rules. The magistrate also ordered the applicant to pay costs of the application to the respondents. 2 An appeal lies from a decision of a Federal Magistrate to the Court: s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth). Under O 52 r 15(1) of the Act, an appeal must be instituted within 21 days of the date of the decision from which the appeal is brought. In this instance, the time within which the applicant could appeal expired on 1 May 2002. The applicant did not institute any appeal by that time. Subsequently, when presenting his proposed notice of appeal to the Court out of time on 10 May 2002, it was necessary for him to obtain an extension of time within which to file and serve his proposed notice of appeal under O 52 r 15(2) of the Federal Court Rules. He made the application on 10 May 2002. Although the appeal is to the Full Court, unless the Chief Justice directs otherwise: s 24(1)(d)and 25(1A), an application for an extension of time to appeal may be heard by a single judge: s 25(2)(b) of the Federal Court of Australia Act. 3 Order 52 r 15(2) of the Rules provides "Notwithstanding anything in the preceding sub-rule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal." The nature of special reasons was discussed by the Full Court in Jess v Scott (1986) 12 FCR 187 at 195. 4 In this matter, given the relatively short period of delay, provided the applicant could demonstrate some arguable basis upon which the decision of the magistrate might be shown to be wrong, I would be disposed to extend the time within which the applicant may appeal to the Court. There is no suggestion that any delay on his part has caused prejudice to any of the respondents. Each of the respondents has contended simply that an extension of time should not be granted because there is no possible basis upon which the proposed appeal could be successful. 5 I am mindful also of the fact that the applicant is acting in person, and as he himself said in the course of submissions in support of his application, is not legally trained. It is a matter where it is appropriate to be as sympathetic to the applicant's position as the law permits. Nevertheless, in my judgment, it is necessary to carefully consider the proposed appeal to determine whether there is any prospect of success upon the proposed appeal before granting the extension of time sought. the original complaint 6 The applicant complained to the Human Rights and Equal Opportunity Commission (HREOC) by statement dated 5 June 2001 and apparently lodged with HREOC on 12 June 2001. His complaint alleged discrimination against him by each of the respondents, contrary to s 9 of the Racial Discrimination Act 1975 (Cth). In broad terms the alleged discriminatory conduct was in relation to his treatment by each of the respondents concerning his attempts to live on part of the land which comprises Brunette Downs Station occupied by the second respondent, Australian Agriculture Co. Ltd. Section 9(1) of that Act provides: "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." 7 On 19 July 2001 HREOC issued a notice of termination pursuant to s 46PH(2) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (the Act) terminating the applicant's complaint of racial discrimination against each of the respondents. 8 As against the respondent Northern Territory Police, HREOC terminated the complaint because it was satisfied that the complaint had been adequately dealt with by the Ombudsman of the Northern Territory: s 46PH(1)(c) of the Act, and because the complaint was lacking in substance: s 46PH(1)(d) of the Act. As against the respondents Northern Land Council and Australian Agricultural Co. Ltd, the complaint was terminated because HREOC was satisfied that the complaint was lodged more than 12 months after the alleged unlawful discrimination took place: s 46PH(1)(d) of the Act. In relation to the complaint concerning racial discrimination alleged against the respondents Aboriginal & Torres Straight Islander Commission, Central Australian Aboriginal Legal Aid Service and Australian Agricultural Co. Ltd, the complaint was terminated because HREOC was satisfied that the complaint was lacking in substance: s 46PH(1)(c) of the Act. Detailed reasons for that decision were provided. the proceedings in the federal magistrates court 9 On 17 August 2001 the applicant applied to the Federal Magistrates Court of Australia for orders against each of the respondents, again alleging contraventions by each of them of s 9 of the Racial Discrimination Act. In his application to that Court, he alleged: "I was discriminated against by being deprived of my occupation of my traditional home on my ancestral, traditional land. I have been treated as vagrant who was no right to my traditional land." He claimed to be: "An aboriginal deprived of traditional living space and discriminated against by the above." 10 In support of his application, the applicant filed an affidavit which read as follows: "(1) That the respondents have for the last six years acted to prohibit myself and my family from gaining access to my traditional land. (2) They have taken steps to have me removed from my shelter on my traditional land. They have destroyed my shelter on my traditional land and stolen my personal belongings from my destroyed shelter. (3) Discrimination in obtaining jobs and housing, harassment towards me and my children." On 17 September 2001, that Court directed the applicant, inter alia, to file and serve on each of the respondents by 8 October 2001 an affidavit setting out in detail the specific allegations on which he relied. No affidavit was filed in accordance with that direction. On 12 November 2001, a direction in similar terms was given, fixing 21 December 2001 as the date by which any such affidavit should be filed and served. Again, no such affidavit was filed and served within that time. No further affidavit was filed in support of that application in that Court. 11 The applicant provided to that Court, and presumedly to each of the respondents, on 27 December 2001 a letter dated 17 December 2001 repeating his general assertions of racial discrimination on the part of each of the respondents, without providing detailed specific allegations in accordance with the directions, and he did so again by a further letter provided to the Court on 21 February 2002 and dated 15 February 2002. 12 The learned magistrate at first instance referred to the applicant's detailed letter of complaint to HREOC, including quoting it in full. His Honour also referred to the applicant's original statement to HREOC, and to the two handwritten letters. He described those documents as being: "… full of inchoate complaints made by the applicant but lacking in specific details. The applicant makes many allegations that the NLC and ATSIC have refused to assist him in respect of claims he may have to land at Brunette Downs Station. He does not specify the basis of his claims or give particulars as to why the NLC and ATSIC have discriminated against him". 13 Each of the respondents applied pursuant to r 13.10 of the Federal Magistrates Court Rules for an order dismissing the application in so far as it respectively concerned each of those respondents on the ground that no reasonable cause of action was disclosed in the material presented by the applicant. Those applications were heard on 6 March 2002. Judgment was given on 10 April 2002 when, as I have noted, those applications were successful. It was ordered that the application filed on 17 August 2001 be dismissed with costs. Detailed reasons for the decision were published at the time. the magistrate's reasons for decision 14 The learned magistrate identified as best he could, from a careful consideration of the materials which the applicant had provided to HREOC and had filed in the Court, the nature of the complaints. He then observed that the applicant had not provided specific details as to how he said any of the respondents had discriminated against him on the basis of his race. The applicant asserted generally that each of the respondents had acted in concert against him, but the general complaints did not descend to any particularity concerning any individual respondent or any individual incidents. The learned magistrate observed: "However the genesis of his grievances against the various organisations seems to stem from his failure to be granted a living area on Brunette Downs Station pursuant to the Community Living Areas Act (NT) or some other piece of legislation; his failure to be granted legal aid in respect of claims in respect of this matter; the subsequent issue of a trespass notice against him by the manager of Brunette Downs Station and general claims of harassment by the Northern Territory Police." 15 The learned magistrate then identified an issue critical to the determination of the application. He said: "Clearly the connection of any of these matters to any act taken or not taken by any of the respondent organisations on the basis of the applicant's racial origin is essential to the success or otherwise of the propagation of his claim. It is the position of each of the respondents that on the material so far put forward by the applicant that there is no such sufficient connection between the complaints as made by the applicant and any action that each of them has or has not taken in respect of the applicant and certainly nothing to indicate that any of them has taken any action on the basis of his racial origins." 16 In considering the respondents' applications to have the applicant's claim dismissed, the magistrate was mindful that the jurisdiction to dismiss a claim on the basis that it discloses no reasonable cause of action is to be sparingly exercised: see e.g. per Weinberg J in MacKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409 at 415-417. The magistrate directed himself that the claim should only be dismissed on that ground where it may properly be described as unarguable and almost incontestably bad. 17 He then addressed therefore the question whether, on the basis of the material put forward by the applicant in the proceedings or upon the basis of any material including that provided by HREOC, there was any arguable case for the applicant upon which his claims could be made out. The magistrate concluded: "In my view, the applicant has failed in either his affidavit filed in support of his application or in any of the letters or other particulars provided by him, to disclose any evidentiary foundation for the claim that any of the respondents have discriminated against him on the basis of his race. Mr Barnes is disappointed at his failure to be granted a living area on Brunette Downs Station. In my view, on the material to hand, there is no plausible argument that the applicant's failure to get what he wants is due to any action on the part of any of the respondents and further and most importantly as a result of any discrimination by them against Mr Barnes on the basis of his race. The position is that in the material on which he relies, Mr Barnes broadly asserts that he has been the victim of discrimination. He is unable to support his allegation of discrimination by the provision of any specific details of it. His allegations seem to be based solely on his perception of events and that at the end of the day he has not received the result that he would have wanted. The applicant has been given several opportunities to provide specific details as to how he says each of the respondents have discriminated against him on the basis of his racial origins. He has been unable to provide these particulars. In those circumstance [sic], in my view, it is unfair to each of the respondents to put them to the expense and difficulty of defending such general allegations. I have no reason to doubt the strength of Mr Barnes' feelings in the matter. He believes that he has been hard done by in respect of his application to live at Brunette Downs. It seems that he believes each of the respondents has conspired against him to defeat his claim. However, it is not the function of the Court to allow proceedings to continue merely on the basis of such suspicions. Suspicions cannot replace evidence or assertion replace fact." 18 Thus the learned magistrate at first instance dismissed the application against each respondent principally on the basis that no reasonable cause of action is disclosed either in the applicant's material or in any other material before the Court. There was, the magistrate found, no material upon which the applicant might make out that any conduct of any of the applicants of which he complained was based upon the applicant's race, so as to enliven s 9 of the Racial Discrimination Act. It also appears from his Honour's reference to the Tribunal's observations about unfairness to each of the respondents, that the learned magistrate may also have dismissed the proceeding against each of the respondents as an abuse of the process of the Court, on the basis that the applicant was simply unable to identify his complaints with sufficient particularity to ensure that each of the respondents was able to know the allegations against it so as to be able to have a fair trial, and so should not be exposed to the proceeding ongoing. consideration of application 19 As I have indicated, in my view, having regard to the short period of time in respect of which an extension of time is sought, and the applicant's personal circumstances, the Court should grant an extension of time if there is any arguable basis upon which an appeal from the magistrate's decision might succeed. Those factors, together with an arguable ground upon which he might succeed in having the decision of the learned magistrate overturned, would in my view constitute "special reasons" for granting the extension of time. 20 The proposed notice of appeal identifies as the ground of appeal: "Racial and social discrimination as above." There is no other reference to such discrimination except in the section containing the orders sought, namely: "That a hearing is continued regarding my complaints against those respondents named, … (and) that my complaints are upheld." 21 The application for extension of time was accompanied by an affidavit, the only relevant part of which asserts: "That the Court proceed to hear out my complaints and is dealt properly against the respondents." Those references do not indicate any possible ground of appeal. In addition, I endeavoured in the course of the applicant's oral contentions on this application to identify with precision the alleged error or errors on the part of the magistrate of which he complained. His contentions included gratuitously offensive assertions against the learned magistrate, the respondents, and Court staff. It is not necessary to repeat them, unless they might possibly indicate a ground of review of the magistrate's decision. 22 As best I can discern from the applicant's contentions, he asserted: · that his complaint had never been honestly dealt with, · that the learned magistrate had simply ignored his complaints, and · that the learned magistrate had decided in advance that he would dismiss the complaints and so did not approach them with a mind open to persuasion. 23 To the extent to which those contentions involve an assertion of bias or apparent bias on the part of the learned magistrate, there is simply no foundation for them at all. It is apparent from the reasons for decision that the learned magistrate was at pains to endeavour to identify the nature of the applicant's complaints, and to identify from the discursive material which he had filed what facts if any he was seeking to assert upon which it might be established that any of the respondents had discriminated against the applicant on the ground of his race. As the learned magistrate found, his general allegations did not provide any basis to identify a particular fact or facts which, if true, might demonstrate discrimination on the part of any of the respondents against him on the grounds of his race. The learned magistrate further pointed out that even if the applicant's perceptions as to how he had been treated were accepted as correct, they did not demonstrate, nor could such facts as he had identified demonstrate, that the treatment of which he complained was treatment by any of the respondents for reasons of his race. 24 In my view, the magistrate's reasons show he had gone to pains to provide the applicant with the opportunity to provide more specific information upon which the applicant might show, if that information were accepted as true, discrimination on the part of any of the respondents by reason of his race. The applicant had not responded to directions to do so, except by providing further general discursive and assertive letters without particularity of any facts which might enable the applicant to succeed. The learned magistrate, in my judgment, carefully considered such material as the applicant had presented, or as was available from HREOC, to determine whether any facts were alleged within that voluminous source material upon which the applicant might show discrimination on the grounds of race. There is no basis upon which it could possibly be shown to the Full Court that the learned magistrate had a mind foreclosed to acceptance of the applicant's claim, or a mind fixed upon dismissing his claims in that process: see e.g. Ebner v Official Trustee in Bankruptcy (2000) 75 ALJR 277; [2000] HCA 63. 25 Upon my questioning, the contention that the learned magistrate "ignored" the applicant's complaints was explained as being a complaint that the magistrate had ultimately decided to dismiss the application rather than to uphold the complaints. It was asserted that the magistrate had been wrong to do so, but no reasons were given as to why such error on his part existed in reaching that view. As I have noted above, the proposed grounds of appeal, and the affidavit in support of the application for an extension of time do not identify any such ground. 26 I have also independently addressed the magistrate's reasons for his decision. In my judgment, there is nothing which might indicate that the magistrate misdirected himself as to the relevant legal principles to be applied in determining whether to dismiss the applicant's claim summarily on the ground that it disclosed no reasonable cause of action. The magistrate was conscious that he should only do so in the very clearest of cases. His approach is consistent with the decisions of the High Court in General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128-129; Munnings v Australian Government Solicitor (1994) 118 ALR 385 at 388-389. 27 Nor, in my judgment, has the applicant pointed to anything which might conceivably demonstrate error on the part of the learned magistrate in considering whether there was, on the material which was before him, any basis upon which the complaint of racial discrimination under s 9 of the Racial Discrimination Act might be made out. I have set out the magistrate's conclusions in [17] above. It is plain that, to contravene s 9 of the Racial Discrimination Act, it is necessary that any discriminatory conduct must be based on race, colour, descent, or national or ethnic origin, and must have the purpose or effect of nullifying a human right or fundamental freedom of the applicant. It was appropriate, as the learned magistrate found, to see whether any fact asserted by the applicant in his material could, if accepted and proved, demonstrate discrimination based on his race. In my view, nothing has been presented by the applicant which might show the learned magistrate erred in law in identifying the legal test to be applied to the material presented on the application. Nor has anything been identified which might show that the magistrate erred in the application of the law to the facts, or that he failed to have regard to any relevant material or that he had regard to any irrelevant material. To the extent to which the decision was a discretionary decision, nothing has been identified which might show that he erred in any way in his consideration of the application. In my view, the learned magistrate has not been shown to have taken any step in his reasoning which arguably might involve error in deciding that the action should not be permitted to proceed on the material before the Court. He correctly asked whether it was apparent that the application, on the material before him and assuming it to be true, must fail. 28 Consequently I have reached the view that there is simply no arguable error on the part of the magistrate at first instance which would warrant the attention of the Full Court of this Court. That being the case, in my judgment he has not shown special reasons for extending the time within which he may appeal to the Full Court and I refuse to grant an extension of time within which he may do so. The application is dismissed. No reason was put forward as to why the normal rule as to costs should not apply. I order that the applicant pay to the respondents costs of the application. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Dated: 19 July 2002 Counsel for the Applicant: The applicant appeared in person. Counsel for the First Respondent: Mr J Hughes Counsel for the Second Respondent: Mr M Grove Solicitor for the Second Respondent: Ward Keller Counsel for the Third Respondent: Mr G MacDonald Solicitor for the Third Respondent: NTPFES Legal Services Counsel for the Fourth Respondent: Mr J Lee Solicitor for the Fourth Respondent: Australian Government Solicitor Counsel for the Fifth Respondent: Mr D Schild Date of Hearing: 8 July 2002 Date of Judgment: 31 July 2002