Ugur v NSW Police Service [2005] FCA 48 (20 January 2005)

Last Updated: 18 February 2005

FEDERAL COURT OF AUSTRALIA

Ugur v NSW Police Service [2005] FCA 48

HACI EMIN ORHAN UGUR v NSW POLICE SERVICE

NSD1831 OF 2004





EMMETT J
20 JANUARY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1831 OF 2004

BETWEEN:	HACI EMIN ORHAN UGUR APPLICANT
AND:	NSW POLICE SERVICE RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	20 JANUARY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application of 8 December 2004 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
NEW SOUTH WALES DISTRICT REGISTRY	NSD1831 OF 2004

BETWEEN:	HACI EMIN ORHAN UGUR APPLICANT
AND:	NSW POLICE SERVICE RESPONDENT
JUDGE:	EMMETT J
DATE:	20 JANUARY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an application for an extension of time within which to seek leave to appeal from orders made by Hely J on 6 August 2004. The applicant, Mr Ugur, is in detention at the Villawood Detention Centre. His English is not good, although he is able to communicate in English adequately. His native tongue is Turkish and a Turkish interpreter was present during the hearing. However, it appears that Mr Ugur’s Turkish is somewhat stale and the interpreter has not been able to assist to any great extent. Mr Ugur has preferred to address the Court in English rather than in Turkish through the interpreter.

2 Mr Ugur lodged a complaint against the New South Wales Police with the Human Rights and Equal Opportunity Commission (‘the Commission’). The complaint was lodged under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (‘the Act’).

3 Mr Ugur alleged racial discrimination on the part of the police. That is, he alleged discrimination on the ground of race, colour, descent or national or ethnic origin, contrary to the Racial Discrimination Act 1975 (Cth) (‘the Discrimination Act’). His complaint was that, on those grounds, he was harassed, assaulted, arrested and charged on the basis of false evidence fabricated by the police, even though he had committed no offence. In support of his allegations, he provided to the Commission numerous statements of complaint, copies of police documents and two mini cassette tapes, on which he claimed to have recorded certain comments made by the police officers named in his complaint.

4 On 19 February 2004, the Commission determined the complaint pursuant to s 46PH(1)(c) of the Act, having concluded that the complaint was lacking in substance. In its reasons of 19 February 2004, the Commission summarised Mr Ugur’s allegation in relation to the three incidents that were the subject of Mr Ugur’s complaint. The first incident was alleged to have occurred on 18 August 2002, at Five Dock Health and Squash Club; the second, on 27 December 2002, at Leichhardt Aquatic Centre Car Park; and the third, on 28 December 2002, at Newtown Police Station. The thrust of the complaint under the Act is that, on several occasions, one of the police officers, in respect of whom the complaints have been made, said to Mr Ugur ‘Go back to your country’.

5 In its reasons for determining the complaint, the Commission recorded that the incidents had been the subject of proceedings in the Local Court of New South Wales, where complaints of harassment and assault were expressly rejected by Price DCJ, the Chief Magistrate of the Local Court of New South Wales. It would, of course, be quite unlawful if the police conducted themselves in the way alleged by Mr Ugur. However, whether such unlawful conduct was because of race, colour, descent or national or ethic origin is a different matter. There is nothing in the material before me, or in the reasons of the Commission of 19 February 2004, to suggest any error on the part of the Commission, or to suggest that there has been any contravention of the Discrimination Act.

6 On 20 April 2004, Mr Ugur commenced a proceeding in this Court, naming the Police Service of New South Wales as respondent. The proceeding was an application for an extension of time. On 6 August 2004, Hely J observed that the application did not comply with the provisions of O 81 r 5 and that no affidavits had been filed in support of the application.

7 The matter first came before Hely J on 30 April 2004, when his Honour directed Mr Ugur to file and serve any evidence on which he proposed to rely in support of his application for an extension of time. The matter was adjourned to 9 July 2004. His Honour indicated that, if Mr Ugur did not comply with the direction, his application might be dismissed. On 9 July, Mr Ugur was represented by a solicitor, who sought a further adjournment until 6 August 2004. Hely J agreed to that adjournment on the basis that Mr Ugur’s evidence would be filed and served in the meantime.

8 The solicitor informed Mr Ugur on 16 July 2004 that she was no longer prepared to act for him, and filed an affidavit, sworn on 22 July 2004, informing the Court of the circumstances. The solicitor said that, after the appearance on 9 July 2004, she had a long conference with Mr Ugur, who told her that he did not, at that stage, have any new evidence in relation to the incident at Newtown Police Station.

9 On 21 July 2004, the solicitor wrote to Mr Ugur at Villawood Detention Centre, confirming that she would no longer appear for him. In the letter, the solicitor informed Mr Ugur that she had called Newtown Police Station a number of times in order to establish whether or not they were holding any evidence about his claims. She informed Mr Ugur that his claims against the police were denied.

10 When the matter came back before Hely J on 6 August 2004, his Honour considered that the history of the matter indicated an inability or unwillingness on the part of Mr Ugur to proceed with his application in accordance with the Court’s directions and rules. His Honour, therefore, made an order pursuant to O 10 r 7 that the application for an extension of time be dismissed.

11 Mr Ugur asserts that, within 28 days of the orders being made by Hely J, he forwarded a notice of appeal to the Court. There is material before me that indicates that, by 18 August 2004, the New South Wales Registry had received a document purporting to be a notice of appeal. The grounds of appeal stated in that notice were as follows:

‘I have evidence which has not been submitted because I did not understand directions given in court on 9 July 2004. These directions were not interpreted for me by the solicitor nor the interpreter.’

12 The notice of appeal was rejected, since leave to appeal was necessary and there had been no grant of leave. In any event, even if it were to be treated as an application for leave, the notice of appeal was filed out of time.

13 On 8 December 2004, Mr Ugur filed a notice of motion seeking leave to appeal from the orders of Hely J of 6 August 2004 and an extension of time within which to make the application. That motion was supported by an affidavit sworn on 15 October 2004, which makes the following assertions:

‘In court on 9^th July I did not understand the directions being given. These directions were not explained to me by the solicitor or the interpreter. This is the reason why I did not follow the directions.
On 9^th July I had two copies of my evidence in court, but my solicitor Bernadette Allas did not want to submit this evidence to the court because police had not yet returned my evidence.
I now have evidence that I am innocent of police charges against me in the New South Wales Magistrate’s Court on 25^th July 2003.
I have not been able to present this evidence in court. In July 2003 this evidence was in the hands of the police who had not returned it to me at the end of July 2004, a camera and a tape recorder. When these were later returned to me I was able to prepare the evidence.
What I am looking for is an opportunity to seek justice in my case. I know that I did not do what was charged by the police. I spent six months in gaol for something I did not do.’

14 A copy of the notice of appeal that I have referred to was attached to the affidavit, together with a written submission, which is as follows:

‘My statement and evidence was ready but not given to New South Wales Police and Federal Court of Australia.
I brought two copies of the evidence document and my statements to the court on Friday 6^th August 2004 with me.
I could not serve my statement and the evidence documents to the New South Wales Police and the court before 6^th Aug. 2004. The reason was too little information given to me from my solicitor B. Allas and the interpreter.’

15 The submission refers to two of the three incidents, and to an additional incident on 31 August 2004. It then asserts that the police fabricated lies against Mr Ugur. The submission makes reference to a failure of the solicitor and the interpreter to explain to him what happened on 9 July 2004.

16 The submission also mentions a camera, three cassette tapes and a tape recorder, which were alleged to have been seized by the police. The submission then states that Mr Ugur has strong evidence to support his case, and that he was innocent of the charges brought against him by the police. The submission asserts that Mr Ugur was not aware that he had to serve the evidence on the police before 6 August 2004. However, there was nothing in the submission that refers to any ground that would arise under the Discrimination Act.

17 Having regard to Mr Ugur’s difficulty with the English language, and the fact that he is in detention, the material before me may support an extension of time if there were any material to suggest that there was the slightest substance in his complaint under the Discrimination Act. However, the only material relied upon as indicating that there was any substance in the complaint, is said to be contained in five files summarised in a document headed ‘Contents of Files’.

18 Mr Ugur produced the five files but was unable to refer to any material that could constitute a contravention of the Discrimination Act, other than saying that, on a number of occasions, the police said ‘Go back to your country’. That assertion was recorded by the Commission and taken into account in its determination that Mr Ugur’s complaint lacked substance.

19 I am not persuaded that there is any material that would justify a conclusion that Mr Ugur’s complaint under the Discrimination Act has any prospect of success. The fact that the complaints were dismissed by Price DCJ, might lead to a conclusion that there is no substance. However, I make no observation at all as to whether his complaints against the police have any substance. That is not a question before me at present.

20 For the purposes of the present application, it may be appropriate to assume that there is some substance in Mr Ugur’s complaints of impropriety on the part of the police. However, there is simply no substance at all in his complaint that, if there were any such impropriety, it was because of race, colour, descent or national or ethnic origin. There is no material before me to suggest that Mr Ugur’s complaint of contravention of the Discrimination Act has any prospect of success.

21 I do not consider that there is any prospect of an appeal from Hely J’s orders succeeding. It follows, in my view, that the application for an extension of time within which to file an application for leave to appeal should be dismissed.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated: 18 February 2005

The Applicant appeared in person
Solicitor for the Respondent (with leave):	Mr D Shepherd
Date of Hearing:	20 January 2005
Date of Judgment:	20 January 2005