FEDERAL COURT OF AUSTRALIA Hassan v Hume [2004] FCA 886 HUMAN RIGHTS - discrimination and victimisation – universities – doctoral student enrolled at University of New South Wales – enrolment and scholarship cancelled for non-disclosure in application – information of previous enrolment and disciplinary proceedings provided by University of Adelaide – prior complaint to Human Rights and Equal Opportunity Commission against University of Adelaide – complaint to Human Rights and Equal Opportunity Commission about cancellation of enrolment and scholarship by University of New South Wales and provision of information by University of Adelaide – general allegation of discrimination and victimisation – complaint terminated – application to Federal Magistrates Court – application dismissed summarily – no reasonable cause of action – appeal to Federal Court – appeal dismissed – no issue of principle Racial Discrimination Act 1975 (Cth) s 17, s 27 Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 46PH, s 46PO Federal Court of Australia Act 1976 (Cth) s 25(1A) Federal Magistrates Court Rules r 13.7, r 13.10 General Steel Industries Inc v Commissioner of Railways (1964) 112 CLR 125 cited GHALI HASSAN v PROFESSOR ROY HUME AND ANOTHER W 247 OF 2003 FRENCH J 7 JULY 2004 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W247 OF 2003 On Appeal from the Federal Magistrates Court of Australia BETWEEN: GHALI HASSAN APPELLANT AND: PROFESSOR RORY HUME (University of NSW) FIRST RESPONDENT PROFESSOR JAMES McWHA (University of Adelaide) SECOND RESPONDENT JUDGE: FRENCH J DATE OF ORDER: 7 JULY 2004 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondents' 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 AUSTRALIA DISTRICT REGISTRY W247 OF 2003 On Appeal from the Federal Magistrates Court of Australia BETWEEN: GHALI HASSAN APPELLANT AND: PROFESSOR RORY HUME (University of NSW) FIRST RESPONDENT PROFESSOR JAMES McWHA (University of Adelaide) SECOND RESPONDENT JUDGE: FRENCH J DATE: 7 JULY 2004 PLACE: PERTH REASONS FOR JUDGMENT Introduction 1 A former doctoral student enrolled at the University of New South Wales ('UNSW') under a scholarship had his enrolment and scholarship cancelled by UNSW on 23 April 2002. The cancellation was effected because he had failed to disclose on his application form prior enrolments with other universities where he had not completed his degrees. One basis of the cancellation was information provided by the University of Adelaide which related, in part, to disciplinary proceedings taken against the student. 2 The student, Mr Ghali Hassan, subsequently made a complaint to the Human Rights and Equal Opportunity Commission ('HEROC') which was treated as a complaint of racial discrimination and victimisation contrary to the Racial Discrimination Act 1975 (Cth). That complaint was terminated by the President of HEROC. Mr Hassan then made application to the Federal Magistrates Court under the provisions of s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ('the Act'). He named as respondents the Vice Chancellors of UNSW and the University of Adelaide. On the application of the respondents the Federal Magistrates Court dismissed his application on the ground that no reasonable cause of action was disclosed. Mr Hassan has now appealed to this Court against that decision. 3 On 18 February 2004, the Chief Justice determined that the appeal should be heard by a single judge. The determination was made pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth). 4 For the reasons that follow, I agree with the learned Federal Magistrate that no reasonable cause of action was disclosed on the face of the application and supporting affidavit filed in the Federal Magistrates Court and that the application was correctly dismissed. Factual History 5 The factual background to these proceedings is apparent from papers before the Federal Magistrates Court. It was conveniently set out in an outline of submissions filed on behalf of the first respondent, Professor Hume. That history is as follows: 1. On 19 February 2002 Mr Hassan applied for admission to UNSW to enrol as a doctoral student (studying optometry). The application was made in conjunction with an application for a scholarship from the Co-operative Research Centre for Eye Research and Technology (CRCERT), which formed part of UNSW. 2. Section 5 of the application form for admission required him to state his academic qualifications with details of the qualification and the institution from which it was obtained. Section 7 of the application form required him to state details of other courses previously attempted and not listed in s 5. 3. In s 5 Mr Hassan listed two qualifications, namely a Bachelor of Arts and a Bachelor of Science, obtained from the Australian National University in 1996 and 1997. He did not enter, in s 7, any details of courses previously attempted. 4. The application form contained a declaration above the signing clause in the following terms: 'I declare that the information submitted in this application is correct and complete. I authorise the University to obtain official records from any tertiary institution previously attended by me. If any information supplied by me may be considered to be untrue or misleading in any respect, I understand the University may take such action as it believes necessary including the disclosure of the information to any person or body the University considers has a legitimate interest in receiving it and I consent to such disclosure. I understand that the University reserves the right to vary or reverse any decision made on the basis of incorrect or incomplete information.' 5. In March 2002, Mr Hassan gained admission to UNSW as a doctoral student and was awarded the CRCERT scholarship. 6. Subsequently, officers of UNSW became aware that between 1997 and 2001 Mr Hassan had previously enrolled in, but not completed, degrees at the University of Adelaide, the University of Queensland, Macquarie University and the University of Tasmania. After giving Mr Hassan an opportunity to make submissions the Registrar and Deputy Principal of UNSW wrote to him on 23 April 2002 and cancelled his enrolment and scholarship. 7. The stated reasons for the cancellation were as follows: 'I conclude that you have not complied with the University's requirements to declare your previous studies both on the application form and on the Notification of Incomplete Prior Research Studies form. I have therefore determined that your enrolment and your scholarship will be cancelled with immediate effect. In taking this action the University has exercised its right to refuse, vary, reverse, or terminate your enrolment because you supplied untrue, misleading or incomplete information.' 8. On 1 July 2002, Mr Hassan applied to the Administrative Decisions Tribunal of NSW for review of UNSW's conduct under the Privacy and Personal Information Protection Act 1998 (NSW). In that application he claimed that private and confidential information had been used against him. He sought an order requiring UNSW to reinstate his scholarship and status as a doctoral student. Alternatively, he sought compensation for loss and damage suffered as a result of the University's action. 9. The Tribunal dismissed his application as it considered that it was clear on the face of the form for enrolment that the appellant authorised UNSW to collect information about his previous academic record from other universities. 10. On 22 November 2002, Mr Hassan appealed against the Tribunal's decision to the Appeal Panel of the Tribunal. On 31 March 2003, that Panel dismissed his appeal on the ground that UNSW had been authorised to obtain from other universities the material upon which it relied to cancel Mr Hassan's enrolment and scholarship. The present proceedings have their origin in a complaint made by Mr Hassan to HREOC, its termination of that complaint, his subsequent application to the Federal Magistrates Court and that Court's dismissal of his application. The Complaint to the Human Rights and Equal Opportunity Commission 6 On 10 September 2002, Mr Hassan made a complaint to HREOC against Professor Hume, Vice Chancellor of UNSW and Professor McWha, Vice Chancellor of the University of Adelaide. In the complaint Mr Hassan alleged: 'My human rights have been breached by a Federal Government Agency; ... I have been treated unfairly for another reason... Victimisation.' He then said: 'I have been victimised because the UNSW obtained prejudicial personal information from the University of Adelaide (and others) and used the information to terminate my scholarship and enrolment. The University of Adelaide continues to victimise me by disclosing misleading personal information in my complaint to the HR and EOC against the University in 1997.' In answer to the question 'When did this happen? He wrote 'March 2002 UNSW'. 7 Mr Hassan went on in the complaint to elaborate upon his allegations. He said he had applied for a scholarship in optometry at UNSW, which had been advertised in 'The Australian' on 21 November 2001. A prerequisite for the scholarship was an undergraduate degree with honours in a related discipline. He was granted the scholarship on 11 February 2002 and submitted an application for admission to the PhD Degree Program on 15 February 2002. He said he was granted admission to the program on 5 March 2002 and on 11 March 2002 started his research and studied at the School of Optometry. He was paid a fortnightly living allowance by UNSW. 8 He alleged that on or about 18 and 19 March 2002 his course co-ordinator at UNSW began collecting personal and private information relating to him for reasons other than his admission application. She and the Registrar had obtained misleading personal information from other sources without his consent and used it to victimise him and to terminate his PhD candidature and scholarship at UNSW. He complained that the UNSW Registrar terminated his enrolment and scholarship on the pretext that he had failed to complete the application for admission form. This decision was made on 23 April 2002. Mr Hassan said he was denied the right to appeal the decision. 9 Mr Hassan said he had not authorised UNSW to obtain personal information from anywhere which was not disclosed on the application for admission form. He only authorised UNSW to verify information supplied by him on that form for the purposes of his scholarship and enrolment to UNSW. He claimed that personal information obtained by the course co-ordinator included unfounded and false allegations that he was 'abusive and violent'. He said the information was obtained by way of telephone, emails and facsimiles from the University of Adelaide and others. The University of Adelaide had been victimising him since 1997. Its actions could only be justified by racism and victimisation. He said: 'This would not have happened to a student his name was Johns or Smith.' (sic) 10 Mr Hassan said he had lodged a complaint with HREOC in 1997 against the University of Adelaide for abuse and discrimination. He said the University of Adelaide had taken advantage, in 1997, of his English (presumably this was a reference to his accent or his fluency) and cultural background to abuse him and to deny him natural justice and the right to study at that University in the future. He said his complaint was closed in 1998 but the University continued to victimise him by disclosing misleading personal information to other institutions including UNSW. He said: 'I am now unable to study at any other university because of victimisation and violation of my rights by the University of Adelaide and the UNSW.' 11 On 13 February 2003, the President of HREOC issued a notice of termination of his complaint against Professors Hume and McWha pursuant to s 46PH(2) of the Act. In the notice the President said: 'This complaint of victimisation under the Racial Discrimination Act 1975 against the respondents has been terminated pursuant to section 46PH(1)(c) of the HREOCA on the ground that I am satisfied the complaint is lacking in substance.' Reasons for the decision were attached to the notice of termination. The reasons indicated that the allegation was investigated as one raising a possible breach of ss 17 and 27 of the Racial Discrimination Act. The Application to the Federal Magistrates Court 12 Mr Hassan's complaint to HREOC having been terminated, he filed an application on 12 March 2003 with the Federal Magistrates Court of Australia naming Professors Hume and McWha as the respondents. The application was supported by an affidavit. In the affidavit he asserted that private information held by the University of Adelaide and disclosed to UNSW related to a disciplinary matter. He said it was fabricated and misleading information which had nothing to do with his academic record. He said he was at the University of Adelaide for a very short time. When he signed the UNSW application for admission form it was for the purpose of verifying information supplied by him on the form. He had never consented to have his whole life history investigated by UNSW. He claimed to have been denied natural justice and legal representation by the University of Adelaide to challenge the disciplinary action against him there in 1997. He said allegations made against him by the University of Adelaide were malicious and slanderous and constituted defamation. 13 As to UNSW, he complained that it obtained and used personal information relating to disciplinary matters to terminate his PhD scholarship. He said that UNSW had used his failure to notify it of incomplete prior research studies on the application for admission as a pretext for terminating his PhD scholarship. He claimed that UNSW had requested private information about him from different sources for the purposes of victimisation long after it had confirmed his enrolment. He said that he had provided true and honest information to UNSW in relation to his application for a scholarship and admission to the PhD program. 14 The orders sought by Mr Hassan on his application in the Federal Magistrates Court were as follows: '1. Provide compensation as a result of the University of Adelaide's actions. I have suffered great damage, and I am unable to pursue my graduate study and gain scholarship. 2. Deletion of the fabricated and misleading allegations against me hel (sic) by the University of Adelaide. 3. The UNSW must be ordered to provide compensation for its inhumane action to cancel my PhD scholarship.' 15 In their responses, the two Vice Chancellors sought orders dismissing the application pursuant to r 13.07 and alternatively r 13.10 of the Federal Magistrates Courts Rules on the grounds that no discrimination contravening any anti-discrimination legislation was disclosed in the application. For Professor Hume, it was also asserted in support of the dismissal application that insofar as Mr Hassan's application related to UNSW it had been the subject of decisions of the Administrative Decisions Tribunal of that State. The Decision of the Federal Magistrates Court 16 The learned Federal Magistrate referred to the complaint to HREOC noting that Mr Hassan alleged victimisation under the provisions of the Racial Discrimination Act. He set out the substance of the complaint and referred to affidavits filed by the respondents. He summarised Mr Hassan's allegations thus: '. Private information held by the University of Adelaide was disclosed to the University of New South Wales. . The information related to a disciplinary matter. . The information was fabricated or misleading. . The information had nothing to do with the Applicant's academic records. . The Applicant signed the UNSW application for admission form purely to verify the information provided by him and had not consented to his life history being investigated by the UNSW. . The Applicant had never authorised the UNSW to obtain private and confidential information from the University of Adelaide. . The Applicant's PhD enrolment had been confirmed and he had been in receipt of the Scholarship for several weeks when the Registrar informed him of the termination of his enrolment and scholarship.' 17 The learned magistrate observed that upon the most generous view of Mr Hassan's material it appeared that he was relying upon a breach of ss 17 and/or 27 of the Racial Discrimination Act. The latter provision was relevant in that it provided that acts of victimisation are prohibited and that a person shall not intimidate or coerce or impose any pecuniary penalty upon another person by reason of the fact that the other person has made a complaint under the Act. His Honour went on to say: 'It is sufficient to note that whilst there may be some evidence that the UNSW was made aware of a complaint lodged against the UA with the Commission I am unable to determine that there is prima facie evidence of victimisation pursuant to s 27 of the RDA. There does not appear to be any or any sufficient evidence which would persuade the Court that there is even a prima facie case that can be established that information was received by the UNSW it was then acted upon in any way when it decided to terminate the enrolment and scholarship of the Applicant at the UNSW.' (sic) 18 His Honour referred to the criteria for summary dismissal and in particular the judgment of Barwick CJ in General Steel Industries Inc v Commissioner of Railways (1964) 112 CLR 125 at 129. Applying the criteria in that judgment his Honour was satisfied that there was no real question to be determined in the case before him and that Mr Hassan's claim was so obviously untenable that it could not possibly succeed. It was not necessary to determine whether the application was an abuse of process or whether any issue estoppel arose as a result of the proceedings taken by Mr Hassan in the New South Wales Administrative Decisions Tribunal. Nevertheless he was satisfied that the complaint before that Tribunal was substantially the same as the complaint sought to be agitated before the Federal Magistrates Court. He said: 'It would otherwise be undesirable for this Court to embark upon a further enquiry at the risk of there being an inconsistent outcome.' It was sufficient however for the decision which his Honour made that he was satisfied that the application should be dismissed on the basis that the materials did not disclose a contravention of the relevant legislation. Grounds of Appeal 19 In his notice of appeal filed on 15 December 2003 Mr Hassan relied upon the following grounds: 'a. The learned Magistrate erred in denying the Applicant a fair hearing in person knowing that the Applicant representing himself against well-resourced and professional lawyers. b. The learned Magistrate erred in fact and contrary to the evidence in concluding that the denial of education to the Applicant by the Respondents does not constitute a form of victimisation. c. The learned Magistrate erred in law in making findings against the Applicant on the basis that he had not substantiated evidence. d. The learned Magistrate appears to have placed great store on the fact that the allegations against the Applicant were substantiated despite lack of evidence. The Applicant has been denied natural justice by the University of Adelaide to challenge the alleged fabricated accusation at the time. e. The learned Magistrate erred in making order against the Applicant to pay the cost of the Respondents knowing very well the financial state of the Applicant and the hardship faced with if ordered to pay costs. As a result of the University of Adelaide victimisation and continuing discrimination, the Applicant has been unable to finish his education or find employment. f. There was miscarriage of justice such as to constitute a reason sufficient to justify a review of the decision in that the findings and orders of the learned Magistrate were harsh and unreasonable and cannot be supported by the evidence.' Statutory Framework 20 The only provisions of the Racial Discrimination Act referred to in connection with Mr Hassan's complaint to HREOC were ss 17 and 27. Section 17 provides: 'It is unlawful for a person – (a) to incite the doing of an act that is unlawful by reason of a provision of this Part; or (b) to assist or promote whether by financial assistance or otherwise the doing of such an act.' Section 27(2) provides: 'A person shall not – (a) refuse to employ another person; (b) dismiss, or threaten to dismiss, another person from the other person's employment; (c) prejudice, or threaten to prejudice, another person in the other person's employment; or (d) intimidate or coerce, or impose any pecuniary or other penalty upon, another person, by reason that the other person – (e) has made, or proposes to make, a complaint under this Act or the Human Rights and Equal Opportunity Commission Act 1986; or (f) has furnished, or proposes to furnish, any information or documents to a person exercising or performing any powers or functions under this Act or the Human Rights and Equal Opportunity Commission Act 1986; or (g) has attended or proposes to attend, a conference held under this Act or the Human Rights and Equal Opportunity Commission Act 1986; Penalty for an offence against subsection (2): (a) in the case of a natural person - $2,500 or imprisonment for 3 months, or both; or (b) in the case of a body corporate - $10,000.' 21 Part IIB of the Act is entitled 'Redress for Unlawful Discrimination'. It provides, in s 46P(1) that written complaints may be lodged with HREOC alleging unlawful discrimination. Such complaints may be lodged by a person aggrieved by the alleged unlawful discrimination on that person's own behalf. If a complaint is made under s 46P HREOC must refer it to the President of HREOC (s 46PD). There is provision in the Act for the termination of complaints. Section 46PH provides, inter alia: '(1) The President may terminate a complaint on any of the following grounds: (a) the President is satisfied that the alleged unlawful discrimination is not unlawful discrimination; ... (c) the President is satisfied that the complaint was trivial, vexatious, misconceived or lacking in substance.' 22 If a complaint has been terminated by the President under s 46PH(1) the President must notify the complainant in writing of that decision and of the reasons for that decision (s 46PH(2)). It is then open to the complainant to apply to the Federal Court or the Federal Magistrates Court under s 46PO which provides, inter alia: '(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. ... (3) 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. (4) If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect: (a) an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination; (b) an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant; (c) an order requiring a respondent to employ or re-employ an applicant; (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; (e) an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant; (f) an order declaring that it would be inappropriate for any further action to be taken in the matter.' The other subsections of s 46PO are not relevant for present purposes. 23 The Rules of the Federal Magistrates Court provide in r 13 as follows: '13.07(1) This rule applies if, in a proceeding: (a) in relation to the whole or part of a party's claim there is evidence of the facts on which the claim or part is based; and (b) either: (i) there is evidence given by a party or by some responsible person that the opposing party has no answer to the claim or part; or (ii) the defence or reply to the claim discloses no answer to the claim or part. 13.07(2) The Court may give judgment on that claim or part and make any orders or directions that the Court considers appropriate. 13.07(3) If the Court gives judgment against a party who claims relief against the party obtaining the judgment, the Court may stay execution on, or other enforcement of, the judgment until determination of that claim. ... 13.10 The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if it appears to the Court that: (a) no reasonable cause of action is disclosed in relation to the proceeding or claim for relief; or (b) the proceeding or claim for relief is frivolous or vexatious; or (c) the proceeding or claim for relief is an abuse of the process of the Court.' Whether the Application Disclosed Any Reasonable Cause of Action 24 Neither the application to the Federal Magistrates Court nor the affidavit sworn in support of it by Mr Hassan disclosed any allegation of unlawful discrimination pursuant to the Racial Discrimination Act or otherwise. 25 Mr Hassan alleged in his affidavit that the University of Adelaide had provided to UNSW 'fabricated and misleading information' about disciplinary proceedings against him. There was nothing in his affidavit or on the face of the application which disclosed any case against the University of Adelaide of discrimination or victimisation under the Racial Discrimination Act. No racial basis for the conduct complained of was indicated. A fortiori there was nothing alleged against UNSW which fell into that category. The mere use of the words 'discrimination' and 'victimisation' without any relevant allegations or factual matter to support them and their characterisation as conduct in contravention of the Racial Discrimination Act does not meet the requirements of a viable application. 26 The learned Federal Magistrate referred in his reasons to the absence of 'prima facie evidence of victimisation pursuant to s 27 of the RDA'. It is not clear why his Honour made that observation. In seeking dismissal of the application the respondents had invoked r 13.7 and r 13.10 of the Rules of the Federal Magistrates Court. It seems that only r 13.10 was apposite. The requirement for its application is satisfaction of one or more of the criteria set out in pars (a), (b) and (c) of the rule. 27 In the event, the learned magistrate applied the appropriate test under r 13.10 and held that the claim was 'so obviously untenable that it cannot possibly succeed'. In this conclusion he was correct. 28 It is questionable whether any issue of abuse of process arises because of the proceedings in the Administrative Decisions Tribunal of New South Wales. They seem to have related to a distinct issue, namely the breach of privacy legislation. Conclusion 29 For the preceding reasons the appeal will be dismissed with costs. I certify that the preceding twenty nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate: Dated: 7 July 2004 Mr G Hassan appeared in person Counsel for the First Respondent: Mr JA Thomson Solicitor for the First Respondent: Williams & Hughes Counsel for the Second Respondent: Solicitor for the Second Respondent: Mr RL Hooker Norman Waterhouse Date of Hearing: 1 July 2004 Date of Judgment: 7 July 2004