FEDERAL COURT OF AUSTRALIA Jin v State of South Australia [2016] FCA 1065 Appeal from: Jin v State of South Australia [2016] FCCA 986 File number: SAD 135 of 2016 Judge: WHITE J Date of judgment: 6 September 2016 Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal from a decision of Federal Circuit Court to dismiss the proceeding pursuant to s 17A(2) of the Federal Circuit Court Rules 2001 (Cth) – application dismissed – no error of the Federal Circuit Court Judge shown Legislation: Australian Human Rights Commission Act 1986 (Cth) Federal Circuit Court of Australia Act 1999 (Cth) Racial Discrimination Act 1975 (Cth) Evidence Act 1995 (Cth) Federal Circuit Court Rules 2001 (Cth) Cases cited: Décor Corporation Pty Ltd v Dart Industries (1991) 33 FCR 397 Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 Rawson Finances Pty Ltd v Deputy Commissioner of Taxation [2010] FCAFC 139; (2010) 81 ATR 36 Republic of Croatia v Snedden (2010) 241 CLR 461; [2010] HCA 14 Webster v Lampard (1993) 177 CLR 598 GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (1990) 20 NSWLR 15 Prentice (as trustee of the property of Cummins (a bankrupt)) v Cummins [2003] FCA 1002; (2003) 134 FCR 449 Cheers v El Davo Pty Ltd (in liq) [2000] FCA 144 NMFM Property Pty Ltd (formerly National Mutual Property Services (Australia) Pty Ltd) v Citibank Ltd (formerly Citibank Savings Ltd) (No 8) [1999] FCA 266; (1999) 161 ALR 581; Moore v Wilson [2006] FCA 79 Chung v University of Sydney (2001) FMCA 94 Nokia Corporation v Cellular Line Australia Pty Ltd [2006] FCA 726 Date of hearing: 18 August 2016 Registry: South Australia Division: General Division National Practice Area: Employment and Industrial Relations Category: Catchwords Number of paragraphs: 39 Counsel for the Applicant: T Bourne Solicitor for the Applicant: Bourne Lawyers Counsel for the Respondent: A Wells Solicitor for the Respondent: Crown Solicitor's Office ORDERS SAD 135 of 2016 BETWEEN: MING JIN Applicant AND: STATE OF SOUTH AUSTRALIA Respondent JUDGE: WHITE J DATE OF ORDER: 6 SEPTEMBER 2016 THE COURT ORDERS THAT: 1. Judgment be entered for the Respondent against the Applicant. 2. The Applicant is to pay the Respondent's costs fixed in the sum of $1,756.00 Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT WHITE J: 1 The Federal Circuit Court (the FC Court) summarily dismissed the application of the applicant under s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act): Jin v State of South Australia [2016] FCCA 986. The primary judge considered that the applicant had no reasonable prospect of successfully prosecuting his application and exercised the power pursuant to s 17A(2) of the Federal Circuit Court of Australia Act 1999 (Cth) and r 13.10 of the Federal Circuit Court Rules 2001 (Cth) (FCCR) to dismiss the application. 2 Section 17A(2) provides: (2) The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is defending the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. 3 Rule 13.10 of the FCCR provides (relevantly): The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that: (a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or … 4 The applicant now seeks leave to appeal against the decision of the FCC Judge. The principles upon which this Court acts in determining an application for leave to appeal are well settled. The decision of the primary judge must be attended by sufficient doubt to warrant it being considered by an appellate court and the court must be satisfied that there will be substantial injustice to the applicant if leave is refused, assuming for this purpose that the primary decision is wrong: Décor Corporation Pty Ltd v Dart Industries (1991) 33 FCR 397 at 398-400; Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 at [26]-[30]. These considerations are cumulative, so that leave to appeal is not granted unless both limbs are established: Rawson Finances Pty Ltd v Deputy Commissioner of Taxation [2010] FCAFC 139; (2010) 81 ATR 36 at [5]. 5 It was common ground on the hearing of the application for leave that, in considering whether the applicant had a reasonable prospect of successfully prosecuting his claim, the FCC Judge had regard to the applicant's amended application filed on 21 July 2015, the further and better particulars of the application which the applicant had filed on 24 March 2015, and three affidavits of the applicant made on 5 January 2015, 9 December 2015 and 2 February 2016. These affidavits contained the applicant's evidence in chief for the trial. 6 The respondent (the State) had also filed affidavits from the witnesses from whom it intended to adduce evidence if the matter proceeded to trial, but it does not seem that the content of those affidavits was regarded as being material to its summary judgment application. 7 The applicant's material indicated that he is of Chinese national and ethnic origin and descent. He was born in China in 1972 and came to Australia in September 2005. He is now an Australian citizen. In 2005, he commenced employment in the Public Service of the State of South Australia, and in particular, with Service SA (which was formerly a division of the Department of Transport, Energy and Infrastructure but is now part of the Department of Premier and Cabinet). 8 In 2009, and again in 2010, the applicant lodged complaints with the Australian Human Rights Commission (the AHRC) against the State alleging that he had been subjected to racial discrimination in his employment, in contravention of the Racial Discrimination Act 1975 (Cth) (the RD Act). Neither the applicant's pleadings nor his affidavits indicated more particularly the content of those complaints or their outcome. 9 In the proceedings in the FC Court, the applicant alleged unlawful conduct by his superiors and fellow employees at the Modbury Custom Service Centre of Service SA. In particular, he alleged contraventions of ss 9, 15 and 27 of the RD Act and of s 26 of the AHRC Act. Section 9 of the RD Act is a general prohibition on discrimination on the grounds of a person's race. Section 9(1) provides: (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. 10 Section 15 of the RD Act proscribes some forms of discriminatory conduct on the grounds of race by employers. Section 15(1) provides: Employment (1) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer: (a) to refuse or fail to employ a second person on work of any description which is available and for which that second person is qualified; (b) to refuse or fail to offer or afford a second person the same terms of employment, conditions of work and opportunities for training and promotion as are made available for other persons having the same qualifications and employed in the same circumstances on work of the same description; or (c) to dismiss a second person from his or her employment; By reason of the race, colour or national or ethnic origin of that second person or of any relative or associate of that second person. … 11 Section 27 of the RD Act (as in force at the relevant time) proscribes forms of adverse conduct against a person by reason that that person has made a previous complaint under the RD Act or the AHRC Act of discrimination. Section 26 of the AHRC Act contains a counterpart proscription. 12 In his application in the FC Court, the applicant alleged that the conduct of his fellow employees or supervisors in five separate incidents (or series of incidents) contravened one or other of these provisions: (a) the conduct of Ms Dixon and Ms Kneebone (the Acting Assistant Manager and the Manager at the Modbury Custom Service Centre respectively), relating to a direction by Ms Dixon on 13 February 2013 to the applicant to cancel the registration of a trailer which he had processed earlier that day, for a reason which the applicant considered to be incorrect. The applicant reported this matter to Ms Kneebone who declined to investigate his allegation against Ms Dixon and instructed him to cancel the registration of the trailer. The applicant then reported the conduct of both Ms Dixon and Ms Kneebone to Ms Lindsay (the Associate Director HR Strategy). On 12 April 2013 Mr Oerman (the Executive Director of the Government Services Group) dismissed the applicant's allegations against Ms Dixon and cautioned him about his failure to comply with the directions of Ms Dixon and Ms Kneebone concerning the cancellation of the registration of the trailer; (b) the conduct of Ms Dixon on 28 May 2013 in directing the applicant to "call a ticket" (ie, to call the next customer in the queue to his counter) at a time when there were no customers waiting. The applicant claimed that Ms Dixon had yelled at him. He reported Ms Dixon's conduct to Ms Feist, a coordinator, and later made a written complaint to Mr Balacco, a Manager. On 12 June 2013, Mr Oerman cautioned the applicant in relation to his failure to follow Ms Dixon's direction to "call a ticket" and the manner in which he had spoken to Ms Dixon. (c) conduct occurring on 7, 8 and 9 August 2013 in relation to the ordering of new forms to be used in the Modbury Office. On 7 August 2013, Ms Dwyer, a fellow Customer Service Officer, spoke to the applicant about ordering a supply of new forms. The applicant told her that he had already ordered the forms and that they were in the storeroom. Later that day, the applicant complained to his Assistant Manager, Ms Barrett, about the manner in which Ms Dwyer had spoken to him. Another incident occurred on 8 August 2013 when the applicant "placed" a small bundle of forms on Ms Dwyer's desk. On the following day, Ms Dwyer complained to Mr Balacco about the manner in which the applicant had spoken to her and about the manner in which he had "placed" the bundle of forms on her desk on 8 August. (d) the conduct of the State by Mr Oerman on 28 August 2013 in suspending the applicant from his employment while the State investigated allegations of misconduct. The investigation arose from complaints made by Ms Dwyer about the conduct of the applicant towards her on 7 and 8 August 2013; (e) the conduct of the State by Mr Oerman on 7 November 2013 in upholding Ms Dwyer's allegations of misconduct and in imposing forms of disciplinary action (a reprimand, a reduction in remuneration for a period of one month and the reassignment of the applicant to a different position). 13 In his reasons, the FCC Judge summarised in more detail the applicant's allegations and proposed evidence regarding each of these incidents. He was able to do so by reference to the affidavits which the applicant had filed containing his proposed evidence in chief. It was evident that the applicant did not propose calling any other witness to give evidence at the trial, although he had signalled a wish to cross-examine the State's foreshadowed witnesses and others. 14 The FCC Judge accepted that the applicant's foreshadowed evidence indicated that he was "greatly aggrieved" by the conduct summarised in para 12(d) and (e) above and that he had felt "personally humiliated insulted and offended" by that conduct, at [67]. However, the FCC Judge considered that the applicant's proposed evidence would not establish a causal connection between the conduct of which he complained, on the one hand, and his ethnicity, on the other. The requirement for the causal connection is indicated by the terms "based on" in s 9(1) of the RD Act, the term "by reason of" in s 15(1) of the RD Act and the terms "by reason that" in s 27 of the RD Act and s 26 of the AHRC Act: see Republic of Croatia v Snedden [2010] HCA 14 at [22]; (2010) 241 CLR 461. 15 On the hearing of the application for leave to appeal, counsel for the applicant accepted that such a causal relationship had to be shown. He also accepted that the applicant had neither pleaded nor deposed to any words or actions by his fellow employees in the Modbury Service Centre or by his Managers, which might have indicated that their conduct was in any way attributable to his ethnicity. 16 Reduced to its essentials, the applicant's claim that the conduct of his managers which he impugned had been actuated by a proscribed reason rested on the following series of assertions: (a) the applicant is of Chinese ethnicity; (b) the applicant has suffered detriments in his employment; (c) other employees who are not of Chinese ethnicity have not suffered those detriments; (d) apart from the difference in ethnicity, there are no other material differences between the applicant and the fellow employees; (e) accordingly, it should be inferred that he suffered the detriments by reason of his ethnicity. 17 Put even more simply, the applicant contends that he showed reasonable prospects of success by his mere assertions that he, being of Chinese ethnicity, had suffered detriments which those who were not of Chinese ethnicity had not when, on his assertion, there were no other distinguishing features between them. 18 The FCC Judge did not consider that reasoning of this type gave rise to a reasonable prospect of success. He held: [64] In this context, it is not sufficient for Mr Jin to apply the following course of reasoning: I am of Chinese ethnicity; I have suffered consequences, which I consider are adverse to me, which consequences emanate from Mr Oerman and other persons at the Modbury Customer Service Centre; Mr Oerman and those other persons do not share my ethnicity and are aware of my Chinese ethnicity; therefore the motivation for their conduct against me is my ethnicity and accordingly I have been subject to racial discrimination. 19 Later, at [68], the FCC Judge held that the applicant had not indicated an intention to adduce evidence suggesting that there was "an objective connection between [his] emotional reaction to what ha[d] occurred to him and his racial characteristics". By the term "objective connection", I understand the FCC Judge to have been referring to the need for some evidence pointing to the requisite causal relationship which was in addition to the evidence of the detriment and the evidence of the applicant's ethnicity. 20 The FCC Judge took the view that this was particularly so given that, on the applicant's own foreshadowed evidence, there were readily available alternative explanations for the conduct of which the applicant complained which, on their face, were plausible. For example, in relation to the cancellation of the trailer registration incident the FCC Judge considered that the dispute which had arisen between the applicant, on the one hand and Ms Dixon and Ms Kneebone on the other, had its genesis in the difference of views about whether Mr Jin's conduct in registering the trailer had been correct, and not in his ethnicity. The FCC Judge also noted that the applicant's foreshadowed evidence indicated that the Modbury Customer Service Centre was not a harmonious workplace and that the relationship between Mr Jin and Ms Dwyer was strained, with each complaining, from time to time, about the other's rudeness. The FCC Judge noted in this respect that the applicant had not deposed to any matter indicating that the rudeness had an overt racial component. 21 The FCC Judge then concluded: [74] … In my view, Mr Jin has not been able to provide any evidence to establish that any actions taken by the respondent were based on any aspect of Mr Jin's ethnic origins. [75] Rather the outcome adverse to him, of which Mr Jin complains, arose because of incidents in the workplace, in which Mr Jin had cause to challenge the chain of command applicable to him, as a consequence of the difference of opinion relating to the trailer. I can find no evidence to support any assertion that these various actions were based on Mr Jin's racial background. [76] In addition, I can find no evidence that the particular unhappiness, which arose between staff at the Modbury Customer Service Centre, emanated from any issue related to Mr Jin's ethnicity. Whatever was the genesis of the conflict in the workplace, there is no evidence to indicate that it was objectively based on any individual's racial or ethnic origins. [77] Accordingly, in my assessment, Mr Jin has provided no causal connection between his ethnicity and racial background and the behaviour of which he complains. For these reasons, I have reached the view that his application discloses no reasonable prospects of being successfully prosecuted. 22 Having reached that stage in his consideration, the FCC Judge then addressed an alternative claim made by the applicant. That claim was contained in a document entitled "Further Amended Application" filed in the FCC on 2 February 2016. It is not clear however that the applicant had been granted leave to amend the application, but nevertheless the FCC Judge dealt with it in his reasons. 23 By the alternative claim, the applicant sought to invoke s 27 of the RD Act and s 26 of the AHRC Act by asserting that the impugned conduct constituted victimisation which occurred by reason of his having previously made complaints against the State to the AHRC. The FCC Judge considered that this alternative claim suffered from the same shortcomings which he had identified in relation to the applicant's existing claims. Furthermore, the Judge noted that the applicant had not pleaded any facts nor provided any evidence indicating that there may be some connection between the making of the previous complaints and the conduct of the employees in the Modbury Service Centre of which the applicant complained. In particular, the FCC Judge considered that it was not sufficient for the applicant merely to point to a circumstance which could provide a reason or motive for the conduct which he impugned. 24 On the hearing of the application for leave to appeal, there was no suggestion that the FCC Judge had not acted in accordance with established principles relating to applications for summary judgment. Any such suggestion would have failed in any event as the Judge did refer to a number of authorities indicating that the power to order summary dismissal of an application is to be "exercised with exceptional caution", at [45]-[46] citing Webster v Lampard (1993) 177 CLR 598 at 602. The Judge has also accepted that even greater care is needed when the applicant is a self-represented litigant, at [47]-[48]. 25 Counsel for the applicant emphasised that discriminatory conduct will often not be overt and its existence established only after a close examination of the conduct of all involved. This had the effect, so he submitted, that Courts should be particularly slow to uphold a respondent's submission that a claim has no reasonable prospect of success merely because an applicant is unable to point to any particular overt conduct suggesting that the impugned conduct is racially based. I accept that that is an appropriate caution. 26 Nevertheless, the absence of any foreshadowed evidence by the applicant of overt conduct by any of his fellow employees in the present case is stark. That is especially so given the number of fellow employees whose conduct the applicant impugns. It is theoretically possible that all were actuated by the same proscribed reason but that seems improbable. The applicant did not allege any conspiracy or common purpose. Another relevant feature in the present case is the evident pre-existing ill-feeling between the applicant and Ms Dwyer which would appear to be a much more obvious explanation of, at least, Ms Dwyer's conduct. 27 Having regard to all these circumstances, I am not persuaded that the conclusion of the FCC Judge is attended by sufficient doubt to warrant it being reconsidered on appeal. The matters on which the applicant relied were not sufficient to indicate that the applicant has a reasonable prospect of establishing his claims. 28 I add that the applicant argued other matters but counsel acknowledged on the hearing of the application for leave that, if the applicant's primary argument did not succeed, these additional matters would not avail him. In that circumstance, I will address the additional matters shortly. 29 The applicant submitted that the FCC Judge had erred by denying him the opportunity to cross-examine the witnesses foreshadowed by the State. He submitted that a litigant has a "fundamental right" to test the evidence against him through cross examination". 30 I do not consider that submission has merit in the present context. It may be accepted, of course, that a litigant has an interest, commonly regarded as a "right", to test evidence which is adverse to him or her through the process of cross-examination. It is not necessary for present purposes to consider the nature or conduct of the "right", but see GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (1990) 20 NSWLR 15 at 22 and 25 (GPI Leisure); Prentice (as trustee of the property of Cummins (a bankrupt)) v Cummins [2003] FCA 1002; (2003) 134 FCR 449 at [25]-[28]; Cheers v El Davo Pty Ltd (in liq) [2000] FCA 144 at [9]-[12] and NMFM Property Pty Ltd (formerly National Mutual Property Services (Australia) Pty Ltd) v Citibank Ltd (formerly Citibank Savings Ltd) (No 8) [1999] FCA 266; (1999) 161 ALR 581 at 584-5; cf Moore v Wilson [2006] FCA 79 at [76] where Mansfield J questioned whether the position discussed in GPI Leisure survives in light of s 27 of the Evidence Act 1995 (Cth). 31 Even if there be a "right", that "right" arises at the time that the adverse evidence is led. The FCC Judge was concerned with an antecedent stage in the litigious process, namely, the determination of whether the proceeding should be brought to an end summarily (and not proceed to trial) because the applicant had no reasonable prospect of successfully prosecuting it. No "right" to cross-examination by an applicant or a respondent's foreshadowed witnesses arises at that stage. Further, even if the application for summary judgment had failed and the matter proceeded to trial, the applicant would still not have had the right to cross-examine the witnesses foreshadowed by the State until they were actually called to give evidence. Accordingly, I do not consider it reasonably arguable that the FCC Judge erred in the way contended for by this submission. 32 Next, the applicant contended that the FCC Judge erred by regarding as a relevant consideration the protection of the applicant from himself and, in particular, from an adverse costs order which would result should his application be unsuccessful. 33 The applicant referred in this respect, to passages in the FCC Judge's reasons after he had expressed his conclusion that summary dismissal of the proceedings was appropriate. The Judge said at [85] that he was satisfied that summary dismissal was appropriate "notwithstanding my view that Mr Jin himself remains deeply upset by his perception of how he has been treated by the respondent". 34 The FCC Judge then addressed the State's application for costs and said: [88] I am conscious that Mr Jin has represented himself in the proceedings and, as I indicated above, holds a genuine belief about the misconduct of the individuals named by him in these proceedings, all of whom are or were previously employed as public servants by the State of South Australia. [89] In this regard, I accept that Mr Jin feels passionately that he has been grievously wronged by the State of South Australia. This feeling is reflected in the lengthy documents, which he has prepared and the correspondence he has forwarded to those interested in his case. 35 Then the FCC Judge referred to Chung v University of Sydney (2001) FMCA 94 at [27]-[28] in which the then Federal Magistrate did take into account, in deciding that summary judgment was appropriate, the interests of protecting Mr Chung from himself. The FCC Judge said that that consideration was apposite in the present applicant's case. 36 On its face, therefore, there is some support for the applicant's contention that the FCC Judge had taken into account a protective consideration and that in doing so he had, without evidence, assumed that the applicant was of limited means. However, in my opinion, this submission fails to read the reasons as a whole. I accept, as counsel for the State submitted, that these impugned passages in the FCC Judge's reasons occurred after he had already indicated that summary dismissal of the applicant's claim was appropriate. It appears that the FCC Judge felt some solicitude for the applicant in this context and that he considered saving the applicant from an exposure to a costs liability was a factor pointing to the exercise of the discretion under s 27A(2) and r 13.10. 37 In this respect it is noted that the exercise of the FCC's power under each of s 17A(2) and r 13.10 involves, strictly speaking, a two stage process: Nokia Corporation v Cellular Line Australia Pty Ltd [2006] FCA 726 at [46]. First, the FCC being satisfied that the applicant has no reasonable prospect of successfully prosecuting the action and, secondly, the exercise of the power to dismiss summarily. It is plain that the FCC Judge considered the protective interest of the applicant only after he had reached the requisite stage of satisfaction as to the applicant's prospects of success. That decision is not accordingly affected by the FCC Judge's consideration of an irrelevant consideration, assuming for present purposes that the protective interest is of that character. 38 It will be an exceptional case, if any, in which a Court which decides that an applicant's case has no reasonable prospects of success but nevertheless allows it (or at least the relevant part of the case) to proceed to trial. The present case was not of an exceptional kind. Rather, I consider that the Judge's reference to the protective interest reflected his solicitude for the applicant in light of the disappointment which he understood his decision would cause the applicant. No error by the FCC Court Judge is shown. 39 For the reasons given above, the application for leave to appeal is refused. I will hear from the parties as to costs. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White. Associate: Dated: 6 September 2016