FEDERAL COURT OF AUSTRALIA Jandruwanda v University of South Australia [2003] FCA 1456 Appeal – competence – summary dismissal for failure to disclose cause of action – interlocutory judgment – leave required Racial Discrimination Act 1975 (Cth) Human Rights and Equal Opportunity Commission Act 1985 (Cth) s 46PO Federal Court of Australia Act 1976 (Cth) s 24(1A) Federal Court Rules O 52 r 10, 18, 25, 26, 38 Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 56 Dudzinski v Kellor [1999] FCA 1264 In the matter of an appeal by Gaye Alexander Mary Luck [2003] HCA 70 Weatherall v Satellite Receiving Systems (Australia) Pty Ltd (1999) 92 FCR 101 JENNIFER JANDRUWANDA v UNIVERSITY OF SOUTH AUSTRALIA S 566 of 2003 SELWAY J 12 DECEMBER 2003 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 566 OF 2003 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: JENNIFER JANDRUWANDA APPELLANT AND: UNIVERSITY OF SOUTH AUSTRALIA RESPONDENT JUDGE: SELWAY J DATE OF ORDER: 12 DECEMBER 2003 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The respondent's notice of motion is adjourned to 13 February 2004 at 10.30am. 2. The directions hearing is adjourned to 13 February 2004 at 10.30am. 3. The time for the filing and serving of a notice of motion seeking leave to appeal from the decision of the Federal Magistrates Court delivered on 2 June 2003 be extended to 31 December 2003. 4. Costs to date of the respondent's notice of motion to be costs in the cause. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 566 OF 2003 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: JENNIFER JANDRUWANDA APPELLANT AND: UNIVERSITY OF SOUTH AUSTRALIA RESPONDENT JUDGE: SELWAY J DATE: 12 DECEMBER 2003 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 This is an application by the respondent that the appeal by the appellant from the judgment of the Federal Magistrates Court in Jandruwanda v University of South Australia (No 2) [2003] FMCA 233 be dismissed. For the reasons given below I have not acceded to that application. Nevertheless, there are a number of procedural difficulties in the matter that the appellant needs to address and it is appropriate to make orders in that regard. 2 In July 2001, the appellant filed a complaint with the Office of the Commissioner for Equal Opportunity in South Australia alleging that the University of South Australia had discriminated against her by not accepting her enrolment to a particular course. The Commissioner was acting as an agent for the Human Rights and Equal Opportunity Commission ('HREOC'). HREOC considered the appellant's complaint. 3 There is very little information before me respecting the detail of the complaint that the appellant then made, or even that she now makes, against the respondent. However, as the appellant explained to me there seemed to be at least two aspects of her complaint: (a) That the University did not treat her academic qualifications as being 'real' or 'significant' because they were 'Aboriginal courses' with an 'Aboriginal focus' and that consequently the University discriminated against the appellant in not enrolling her for the course that she desired to take; (b) That the University staff responsible for assisting the appellant in her enrolment were prejudiced against the appellant because of her race and that consequently the University discriminated against her in not enrolling her for the course that she desired to take. In relation to the alleged prejudice the appellant pointed to various matters, including that the relevant persons showed disrespect to a painting prepared by the appellant (apparently on the basis that the painting was 'Aboriginal'); that they had lied to her (presumably because she was an Aboriginal person) and so on. True it is that the appellant's written material, at least to the extent revealed to me, does not obviously link the failure of the University to enrol the appellant in her chosen course with any alleged racial discrimination. Indeed, on the face of the written material the appellant seems to be seeking a merit review of the decision of the University, rather than to complain of some act of racial discrimination in breach of the Racial Discrimination Act 1975 (Cth). Nevertheless, in her argument before me the appellant did seek to show that a link did exist between the failure of the University to enrol her in the course and some acts of racial discrimination. Whether such a link can be proved in evidence is, of course, another matter. 4 In January 2003, HREOC terminated the complaint on the basis that it was lacking in substance. 5 On 3 February 2003, the appellant filed an application in the Federal Magistrates Court purportedly pursuant to s 46PO(1) of the Human Rights and Equal Opportunity Commission Act 1985 (Cth) ('the Act'). After amendment, the respondents to that application were the University of South Australia, the Regency Park College of TAFE and the Working Women's Centre. 6 Each of the respondents applied to have the application struck out. In so far as the Regency Park College of TAFE and the Working Women's Centre were concerned they argued that they had not been respondents to the complaint before HREOC and that the application should be struck out as against them for that reason. The learned Federal Magistrate accepted that argument: see [2003] FMCA 205. The appellant sought leave to appeal from that decision. Leave was refused in Jandruwanda v Regency Park College of TAFE [2003] FCA 1455. 7 The argument put by the University of South Australia was necessarily different. Undoubtedly it had been a respondent to the HREOC complaint. And it would appear that the issue raised in the Federal Magistrates Court was substantially the same issue as that raised by the appellant with HREOC. Pursuant to s 46PO of the Act the Federal Magistrates Court did have jurisdiction to hear the matter in relation to the University. Instead the University argued that the application filed by the appellant in the Federal Magistrates Court did not provide any particulars of unlawful discrimination. 8 The learned Federal Magistrate did not immediately accede to the application put by the University. Instead, he ordered that the appellant file and serve an amended application for the purpose of clarifying her claim. That amended application still did not adequately explain the appellant's case. The Federal Magistrate gave the appellant leave to file a further amended claim. Again she did so. The learned Federal Magistrate summarised the material before him as follows: '…particularisation is of a limited nature, and any indication as to the connection between the applicant's Aboriginality and the treatment she alleges she received is totally missing. … A reading of the documents [filed by the applicant] indicates a situation in which improperly followed procedures by the applicant are compounded by misunderstandings on the part of the respondent culminating in suspicion and breakdown of communication. The documents do not indicate or reveal, to my reading, any hint at a causal nexus between the applicant's race and what occurred.' 9 The learned Federal Magistrate summarily dismissed the appellant's application on the basis that it disclosed no reasonable cause of action. 10 The appellant has purported to appeal from that decision. The respondent has applied by notice of motion for orders that the appeal be dismissed with costs. It is with that notice of motion that I am presently concerned. In relation to it the University basically puts two arguments: (a) The appeal is incompetent and should be struck out under O 52 r 18 of the Federal Court Rules('the Rules'). (b) The appeal should be struck out for want of prosecution and for non-compliance with the requirements of the Rules: O 52 r 38. 11 The argument that the appeal is incompetent rests upon the question whether the judgment of the Federal Magistrate was a final or an interlocutory judgment. If the latter then leave to appeal is required: s 24(1A) Federal Court of Australia Act 1976 (Cth). The question whether a judgment is a final or an interlocutory judgment often involves technical and often arbitrary distinctions, although any apparent injustice then arising can usually be ameliorated by the approach that is taken to the grant of leave: see Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 ('Johnson') at 584, at [43]; Dudzinski v Kellor [1999] FCA 1264 at [9]-[10]. 12 In this case the learned Federal Magistrate summarily dismissed the application on the basis that no reasonable cause of action was disclosed. The authorities are clear that this was an interlocutory judgment: see In the matter of an appeal by Gaye Alexander Mary Luck [2003] HCA 70. As French J (with whom Beaumont and Finkelstein JJ agreed) stated in Johnson at [43], 'If a proceeding is dismissed because it is frivolous or vexatious or because no reasonable cause of action is disclosed the decision is treated as interlocutory.' I also note the more detailed analysis of Burchett J in Weatherall v Satellite Receiving Systems (Australia) Pty Ltd (1999) 92 FCR 101 where his Honour reaches the same conclusion. 13 In the absence of the grant of leave the appeal is not competent and can be struck out by a single Judge. This does not mean that it should be struck out. There is another alternative. That is to extend the time for the appellant to file a notice of motion seeking leave to appeal: see O 52 r 10 of the Rules. In this case the appellant is unrepresented. It is hardly surprising that the appellant may not have been aware of the requirement for seeking leave to appeal in cases where the application had been summarily dismissed for failure to disclose a reasonable cause of action. Such an order may have appeared relatively 'final' from her perspective. On the other hand, there is little point in giving such an extension of time if the prospects of success on any appeal are so limited that leave would not be granted in any event. 14 This leads to some consideration of the other ground that the University asks that the appeal be dismissed. The University points to the failure of the appellant to comply with the various rules in relation to appeals. These include the appellant's failure: (a) to file certified reasons of the Federal Magistrate (O 52 r 25(1)(a)); (b) to file a corrected copy of the transcript (O 52 r 25(1)(b)); (c) to file a draft index of appeal papers (O 52 r 26(1)(a)); (d) to file a notice of appeal which particularises the grounds of appeal. Of course, these grounds specifically relate to an appeal, rather than to an application for leave to appeal. Such relevance as they have in this case is because they reinforce the concerns raised by the learned Federal Magistrate. They suggest that the appellant is unable to meet the requirements of the Rules and that she is unable to identify the grounds of her compliant. This is obviously a matter that needs to be weighed in the balance against whatever allowance the appellant should be afforded because she is unrepresented. 15 Taking all things into account I think that the appropriate course is to give an extension of time to the appellant to file and serve a notice of motion seeking leave to appeal. However, in view of the concerns raised by the learned Federal Magistrate, reinforced by the concerns identified in these proceedings thus far, the appellant needs to be aware that unless the application for leave to appeal, and the accompanying affidavit, adequately identifies the link between the alleged prejudice that the appellant says she suffered at the University and the act or acts of racial discrimination to which she says that she was subject, then there is a real possibility that leave will be refused. The appellant has had considerable notice that she has not addressed this issue. She should treat this as possibly her last chance to do so. 16 Of course there is a possibility that the appellant will not avail herself of the opportunity to file and serve a notice of motion seeking leave to appeal. For this reason it is inappropriate to dismiss the respondent's application that the appeal be dismissed. Instead that application should be adjourned to a specified date so that it can be further pursued if it is appropriate to do so. If a notice of motion seeking leave to appeal is issued and it is appropriate that that application be heard by a single Judge it could conveniently be listed for the same time as the respondent's application. 17 Although the respondent has not been successful in its application (or, at least, that it has not yet been successful), it is clear that the appellant has also not complied with the applicable rules and procedures of this Court. In the circumstances it is inappropriate to make an order for costs against the University. Instead costs should be costs in the cause. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway. Associate: Dated: 12 December 2003 Counsel for the Appellant: The Appellant appeared in person Counsel for the Respondent: B Duggan Solicitor for the Respondent: Minter Ellison Date of Hearing: 21 November 2003 Date of Judgment: 12 December 2003