Jandruwanda v University of South Australia [2004] FCA 219

FEDERAL COURT OF AUSTRALIA

Jandruwanda v University of South Australia [2004] FCA 219 APPEAL – Leave to appeal from decision of Federal Magistrates Court – appeal grounds untenable Racial Discrimination Act, 1975 (Cth) ss 13, 19, 18A Human Rights and Equal Opportunity Commission Act, 1986 (Cth) ss 46PH(1)(c), 46PO Jandruwanda v University of South Australia [2003] FCA 1456 Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 JENNIFER JANDRUWANDA v UNIVERSITY OF SOUTH AUSTRALIA S 566 of 2003 SELWAY J 15 MARCH 2004 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 566 OF 2003

BETWEEN: JENNIFER JANDRUWANDA

APPLICANT

AND: UNIVERSITY OF SOUTH AUSTRALIA

RESPONDENT

JUDGE: SELWAY J

DATE OF ORDER: 15 MARCH 2004

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT:

1. Leave to appeal from the decision of the Federal Magistrates Court delivered on 2 June 2003 is refused. 2. The application in the second paragraph of the Notice of Motion filed 31 December 2003 seeking leave to institute an action of negligence be dismissed. 3. The application in the third paragraph of the Notice of Motion filed 31 December 2003 seeking leave to institute an action for abuse of the Telecommunications Act be dismissed. 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

BETWEEN: JENNIFER JANDRUWANDA

APPLICANT

AND: UNIVERSITY OF SOUTH AUSTRALIA

RESPONDENT

JUDGE: SELWAY J

DATE: 15 MARCH 2004

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 The issue in this case is whether the applicant should be granted leave to appeal from a decision of the Federal Magistrates Court summarily dismissing the applicant's case alleging that she had been unlawfully discriminated against by the respondent contrary to the Racial Discrimination Act, 1975 (Cth) ("The RDA"). For the reasons given below leave to appeal is refused. 2 On 31 December 2003 the applicant filed a Notice of Motion in these proceedings. One paragraph of the Notice of Motion seeks leave "for action of negligence" in relation to three persons none of whom are parties to these proceedings. Another seeks leave "for action of abuse of telecommunications act" against three persons none of whom are parties to these proceedings. Whatever other objections may be taken to these particular paragraphs of the Notice of Motion, the paragraphs can only relate to the Court's original jurisdiction. However, these proceedings are in the Court's appellate jurisdiction. For this reason alone it is appropriate that these particular paragraphs be dismissed. 3 The Notice of Motion also seeks leave to appeal from the decision of the Federal Magistrates Court delivered on 2 June 2003. The applicant has filed a very long affidavit in support of the Notice of Motion and has also filed an extensive written argument. The relevant paragraph of the Notice of Motion obviously reflects the orders made by me on 12 December 2003 extending the time for seeking leave to appeal from the decision of the Federal Magistrates Court delivered on 2 June 2003 until 31 December 2003. The reasons for that order are explained in Jandruwanda v University of South Australia [2003] FCA 1456. 4 The issues relevant to the granting of such leave were considered by the Full Court of this Court in Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, 398-400. What is involved is a balancing of considerations which include the prospects of success of the proposed appeal and whether there would be substantial injustice if leave were refused. In relation to this latter aspect, it is an important consideration (as in this case) that the relevant decision in fact determines substantive rights. In this case the critical issue concerns the prospects of success of the proposed appeal. 5 There is no doubt that the applicant claims that she was treated inappropriately (to use a neutral term) when she attempted to enrol for a postgraduate course at the University of South Australia. She makes a number of complaints relating to or arising out of her attempts to enrol in the course of her choice. She says that those who dealt with her application for enrolment did so rudely and inappropriately. She says that they did not treat her existing undergraduate degree as a "real" degree. She says that they made disparaging comments about some art work that she had made. She says that when she complained of this behaviour the University did not deal with it adequately. The applicant makes a number of other complaints, but these will serve for present purposes. 6 The applicant says that these various matters, taken individually and collectively, involve "racial discrimination" under ss 9, 13 and 18A of the RDA. 7 She took her complaints to the Human Rights and Equal Opportunity Commission. By notice dated 7 January 2003 the Commission terminated the complaint pursuant to s 46PH(1)(c) of the Human Rights and Equal Opportunity Commission Act, 1986 (Cth)("the HEREOC Act"). In its reasons for decision the Commission noted: 'To substantiate a complaint of racial discrimination under sections 9 and 13 of the RDA, it is not sufficient for a person to show that he or she is of a different race, colour, descent, national or ethnic background and has suffered unfair treatment. He or she must show that the unfair treatment was based on, wholly or partly, or sufficiently connected to his or her race, colour, descent or national or ethnic background. … I have carefully considered all of the documents and information before me and I am satisfied that to date, Ms Jandruwanda has provided the Commission with no or insufficient objective evidence in support of her claim of racial discrimination. Under the circumstances, I have decided to terminate Ms Jandruwanda's complaint on that basis pursuant to section 46PH(1)( c) of the HREOCA.' 8 The applicant sought a review by the Federal Magistrates Court of that decision. The background is discussed in my previous reasons. The Federal Magistrates Court summarily dismissed the application on the basis that there was no alleged link between the behaviour alleged by the applicant and any breach of the RDA. As the learned Federal Magistrate summarised the material before him: '… 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 applicant purported to appeal from the decision of the Magistrate. The respondent sought to strike out that appeal. I did not accede to the respondent's request, but held instead that the order of the Federal Magistrate summarily dismissing the application was an interlocutory order requiring leave to appeal. As already noted I ordered that the time for filing and serving 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. In my reasons I pointed out: '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.' 10 One of the complaints that the applicant makes of the approach of the Federal Magistrate is that the Magistrate did not afford her the opportunity to provide and put before him the further material that she claims would have met these concerns. I do not necessarily accept that that is a proper complaint, or that it is made in the proper form. Nevertheless, the applicant does accept that she has put before me all the material that she says she would have wished to put before the Federal Magistrate. 11 The applicant has identified to this Court in what manner she says that material supports her allegations of unlawful discrimination. She has identified what evidence there is in that material which, she says, shows that she has suffered discrimination contrary to the RDA. I have looked at the material again myself. 12 I am satisfied that there is nothing in this material which provides objective evidence of unlawful racial discrimination. It may suggest that the applicant was treated unfairly. It may even suggest that she was treated rudely. (Although whether or not that could ultimately be established would be a matter of evidence and submission). It does not establish racial discrimination. The applicant went so far as to say that if she, being an Aboriginal person, was treated unfairly or rudely by non-Aboriginal persons this would be enough to establish unlawful discrimination. It is not. One example will suffice. It is clear, on the applicant's own case, that one of the reasons given by the University staff as to why they did not treat her undergraduate degree as being of equivalent standard to other undergraduate degrees was because her degree had been awarded by a TAFE College, rather than a university. Even assuming that this were the true reason why they did not do so it would not in itself establish anything more than that those staff discriminated between the degrees offered by various institutions within the tertiary education sector. Whether that discrimination is valid or appropriate or not is not to the point. By itself it would not establish anything in relation to possible racial discrimination. 13 Undoubtedly the applicant believes that she has been discriminated against on the grounds of her race. The applicant has now been afforded many opportunities before HEREOC, before the Federal Magistrate and before this Court to identify why. The applicant has still not done so. 14 The application made by the applicant to the Federal Magistrate Court required the Magistrate to determine whether or not the respondent had unlawfully discriminated against the applicant: s 46PO of the HEREOC Act. The Federal Magistrate summarily dismissed the application because the applicant was unable or unwilling to identify the nexus between the various complaints that she had and any unlawful discrimination under the RDA. If leave to appeal were granted the issue before the appeal court would not be whether that court would reach the same result, but the narrower question of whether the Federal Magistrate had made some appealable error. Nevertheless, even on the material that is now before me it is clear that the case as explained to this Court by the applicant and as comprised in that material is "so clearly untenable that it cannot succeed": General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130. In my view there was clearly and obviously no error by the Federal Magistrate in his decision summarily to dismiss the application before him. 15 In my view an appeal by the applicant, if leave were granted, would have no prospects of success. In these circumstances leave to appeal must be refused. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway.