Paramasivam v Juraszek [2002] FCAFC 141 (21 May 2002)

Last Updated: 22 May 2002

FEDERAL COURT OF AUSTRALIA

Paramasivam v Juraszek [2002] FCAFC 141

GAJA LAKSHMI PARAMASIVAM v MILENA JURASZEK

N 1009 of 2001

O'LOUGHLIN, WHITLAM and MARSHALL JJ

21 MAY 2002

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1009 of 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	GAJA LAKSHMI PARAMASIVAM APPELLANT
AND:	MILENA JURASZEK RESPONDENT
JUDGES:	O'LOUGHLIN, WHITLAM and MARSHALL JJ
DATE OF ORDER:	21 MAY 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The appellant is to pay the respondent's costs (including the costs of her motion, notice of which was filed on 27 July 2001).

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	N 1009 of 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	GAJA LAKSHMI PARAMASIVAM APPELLANT
AND:	MILENA JURASZEK RESPONDENT

JUDGES:	O'LOUGHLIN, WHITLAM and MARSHALL JJ
DATE:	21 MAY 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT

1 This is an appeal from a judgment dismissing with costs an application under s 46PO of the Human Rights and Equal Opportunity Commission Act 1986, in which the appellant, Gaja Lakshmi Paramasivam, alleged unlawful discrimination by the respondent, Milena Juraszek.

2 The background to that proceeding may be quickly sketched. A temporary employment agency provided Mrs Paramasivam's services to a government business enterprise called Health Services Australia Limited ("HSA") for a period commencing on or about 7 February 2000. Ms Juraszek commenced employment with HSA on 14 February 2000. Her duties included supervision of Mrs Paramasivam. On 12 April 2000 Ms Juraszek arranged with the employment agency for Mrs Paramasivam's services to be withdrawn at the end of that week. Mrs Paramasivam complained to the Human Rights and Equal Opportunity Commission that Ms Juraszek took this action because of "my Asian background" and that it was unlawful under Pt II of the Racial Discrimination Act 1975. The President of the Commission terminated the complaint on the ground that she was satisfied that it was lacking in substance.

3 Evidence was given at the hearing in the Court below by both parties and by another employee of HSA. Mrs Paramasivam appeared there in person (as she has done before us). A transcript of oral evidence has not been included in the appeal papers. However, the trial judge's reasons contain an obviously careful analysis of the evidence touching upon both Mrs Paramasivam's work performance and events leading up to her services being withdrawn. After setting out that evidence, his Honour described the case presented to him by Mrs Paramasivam this way:

"The case for the applicant is that the objective circumstances do not establish a proper basis for terminating her services on the grounds of incompetence and that, in the absence of any other rational explanation, it should be inferred that the real reason for the applicant's dismissal was because of her racial characteristics. Indeed, the applicant did not suggest, either in cross examination of the respondent or in her final address, that any discrimination that might have occurred on that basis was conscious or deliberate on the part of the respondent."

The trial judge went on to make the following crucial findings:

"In my view, the respondent was motivated in what she did by concern both as to performance and as to disruption caused by the applicant in the circumstances and that she took the view she was entitled to do this in view of the temporary nature of the applicant's placement. In my opinion, these views were genuinely held and held on a reasonable basis by the respondent. It is not necessary, nor even open on the evidence, to attribute another cause for what took place. There was no hint in the evidence of any actual racial antagonism towards the applicant by the respondent."

His Honour concluded:

"Whilst I do not doubt that the applicant has a genuine sense of grievance as to what happened and may attribute it to racial discrimination, in my opinion there was no racial discrimination operating in the circumstances of this case."

4 The notice filed by Mrs Paramasivam to institute the present appeal did not specify any grounds of appeal but, instead, reproduced verbatim the terms of a long letter which she had apparently written to the trial judge after he gave judgment. Ms Juraszek's solicitors wrote to Mrs Paramasivam informing her that, unless she amended her notice of appeal so as to specify grounds of appeal, an application would be made to have the appeal struck out as an abuse of process. Mrs Paramasivam refused to amend her notice, and on 27 July 2001 Ms Juraszek filed notice of a motion for summary dismissal of the appeal. At the Full Court callover that motion was fixed for hearing by us. However, the day after the callover, an order was made by a Deputy District Registrar of the Court, by consent and without prejudice to Ms Juraszek's motion for summary dismissal, giving Mrs Paramasivam leave to file an amended notice of appeal within seven days. Pursuant to that leave Mrs Paramasivam filed an amended notice specifying her grounds of appeal as follows:

"I believe that [the trial judge] acted in breach of Article 5 (a) and e (v) of the International Convention on the Elimination of All Forms of Racial Discrimination. I believe that [the trial judge] was prejudiced against me because I am from a lower position in society compared to Ms Juraszek. I believe also that [the trial judge] failed to uphold that Ms Juraszek did discriminate against me. Instead [the trial judge] has focused on the `reason' for discrimination. There is clear evidence that Ms Juraszek lied under oath when she stated that I was dismissed due to lack of skills - for Ms Juraszek revealed during cross-examination that when she came to talk to me on the day she dismissed my services - she had not made up her mind and that if I had told her I would be obedient in style she would have retained my services.

I believe that [the trial judge] acted in breach of section 13 (b) of the Racial Discrimination Act 1975 by providing me with his services on less favourable terms that [sic] his services to Ms Juraszek. I paid for the services of [the trial judge] when I paid my taxes. When accepting his job His Honour entered into contract with me to provide his Services on Equal basis as to any other citizen.

I believe that [the trial judge] looked only at the last chapter of the story and could not connect the act of discrimination to the first chapter - the Anti Discrimination Law. I believe that [the trial judge] concluded that the Earth was flat because he saw the start and the finish and the short line that connected them. If he had undertaken the full journey through out minds as he is required to do - he would have realised that the Earth was indeed round - that the root cause of my dismissal was my Ethnic Origins which required me to work in a lower position than Ms Juraszek even though my knowledge was at a higher level - as was acknowledged by [the trial judge]."

The letter to the trial judge earlier referred to was then again reproduced in the amended notice of appeal.

5 The notice of appeal and the amended notice of appeal were not in proper form. They gave no intimation of any legal grounds upon which the judgment appealed from was to be challenged. Neither document should have been accepted for filing in the Registry. Furthermore, the contents of Mrs Paramasivam's letter to the trial judge reproduced in each notice were in part quite scandalous. For example, her letter concluded: "Your Honour has just proved that you see White better than you see Black." Ms Juraszek was in all the circumstances left with no course but to seek to have the appeal dismissed as vexatious and an abuse of process.

6 Nonetheless, when the appeal was called on for hearing, counsel for Ms Juraszek did not press for an order of summary dismissal. Counsel had earlier remarked, quite accurately, in his written outline of submissions to be made on Ms Juraszek's behalf on the appeal that it was not easy to divine the grounds of appeal. This had elicited a written response from Mrs Paramasivam, in which she said: "The respondent claims that it is not easy to define [sic] my grounds of appeal. It is Judicial Bias - for in my opinion, His Honour [the trial judge] upheld Cultural Practice as the Law." Counsel for Ms Juraszek told us that he was content to meet such a case and that, in respect of his client's notice of motion for summary dismissal, he now sought only a costs order.

7 In her short address to us Mrs Paramasivam said that she did not wish to add to her written submissions. These comprised three and a half pages dated 19 November 2001 and two and a half pages dated 27 November 2001. It is regrettably necessary to observe at the outset that the language employed by Mrs Paramasivam in these submissions is in part grossly intemperate and offensive. For example, she criticizes the findings of the trial judge reproduced in [3] above with the prefatory statement "if his Honour had been honest". Such a disgraceful slur, when it is entirely unsupported (as it was here), excites deep suspicion about the genuineness of any allegation of bias against the trial judge.

8 Unsurprisingly Mrs Parmasivam's submissions do not acknowledge the two different bias contentions recognised by Australian law, actual bias and apprehended bias. No particulars are there given of any matter that could constitute either type of bias. However, when the purported notices of appeal are read together with the submissions, it is possible to discern a vague charge of ineradicable cultural prejudice based on the fact that the trial judge is not a Tamil born in Sri Lanka. It may be confidently stated that, by itself, such a fact cannot give rise to a reasonable apprehension of bias: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 75 ALJR 277. (Recently Mason P of the NSW Court of Appeal has written extra-judicially about the unconscious prejudice of judges: (2001) 75 ALJ 676.)

9 On the other hand, it may be that Mrs Parmasivam's charge of "bias" is just her extravagant way of expressing disagreement with the findings and approach of the trial judge. If so, we may simply say that we agree with those findings for the reasons given by his Honour. One specific matter of which Mrs Parmasivam complains in her submissions is that the trial judge wrongly required what she calls "gross proof" of a racist motive. If by this expression she means evidence of an admission by Ms Juraszek of such a motive, it is clear that the trial judge did no such thing, as is shown by the reference in the passage reproduced at [3] above to the way in which "the real reason for the applicant's dismissal" needed to be "inferred".

10 Mrs Paramasivam has failed to make out any ground for allowing her appeal, which will be dismissed with costs. She must also pay Ms Juraszek's costs in respect of the notice of motion for summary dismissal.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Court.

Associate:

Dated: 21 May 2002

The appellant appeared in person.

Counsel for the respondent:	J E Griffiths SC
Solicitors for the respondent:	Chamberlains
Date of hearing:	28 November 2001
Date of judgment:	21 May 2002