Pham v University of Queensland [2002] FCAFC 40; [2002] FCA 203 (1 March 2002)

Last Updated: 6 May 2002

Pham v University of Queensland [2002] FCAFC 40

Pham v University of Queensland [2002] FCA 203

NOTE: CHANGES TO THE MEDIUM NEUTRAL CITATION (MNC)

The Federal Court adopted a new medium neutral citation (FCAFC) for Full Court judgments effective from 1 January 2002. Single Judge judgments will not be affected and will retain the FCA medium neutral citation.

The transitional arrangements are as follows:

* All Full Court judgments delivered prior to 1 January 2002 will retain the FCA medium neutral citation.

* All Full Court judgments delivered between 1 January 2002 to 30 April 2002 have been assigned parallel medium neutral citations in both the FCA and FCAFC series.

* All Full Court judgments delivered from 1 May 2002 will contain the FCAFC medium neutral citation only.

FEDERAL COURT OF AUSTRALIA

Pham v University of Queensland [2002] FCA 203

APPEAL - discretion of judge to dismiss action due to non-appearance of the appellant at trial under O 32 r 2(1)(c) - litigant in person with chronic medical disability - whether evaluation of merits of case by trial judge is required - whether trial judge was biased - whether there was discrimination - application of s 46PR Human Rights and Equal Opportunity Commission Act 1986 (Cth)

Human Rights and Equal Opportunity Commission Act 1986 (Cth), s 46PR

Racial Discrimination Act 1975 (Cth), ss 9 and 10

Disability Discrimination Act 1992 (Cth), ss 5 and 6

Federal Court Rules, O 10 r 7(1)(a) and O 32 r 2(1)(c)

House v The King [1936] HCA 40; (1936) 55 CLR 499 applied

CHARLES PHAM v UNIVERSITY OF QUEENSLAND AND COMMONWEALTH OF AUSTRALIA (AUSTRALIAN DEFENCE FORCE)

V 865 OF 2001

DRUMMOND, MARSHALL AND FINKELSTEIN JJ

1 MARCH 2002

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 865 OF 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	CHARLES PHAM APPELLANT
AND:	UNIVERSITY OF QUEENSLAND FIRST RESPONDENT COMMONWEALTH OF AUSTRALIA (AUSTRALIAN DEFENCE FORCE) SECOND RESPONDENT

JUDGES:	DRUMMOND, MARSHALL AND FINKELSTEIN JJ
DATE OF ORDER:	1 MARCH 2002
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay each respondent's costs of and incidental to the appeal to be taxed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 865 OF 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	CHARLES PHAM APPELLANT
AND:	UNIVERSITY OF QUEENSLAND FIRST RESPONDENT COMMONWEALTH OF AUSTRALIA (AUSTRALIAN DEFENCE FORCE) SECOND RESPONDENT

JUDGES:	DRUMMOND, MARSHALL AND FINKELSTEIN JJ
DATE:	1 MARCH 2002
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1 DRUMMOND J: This is an appeal from an order of Heerey J dismissing the appellant's action pursuant to O 32 r 2(1)(c) the Federal Court Rules, ie, because of the non-appearance of the appellant at the trial. The action was commenced in September 2000. By his application, the appellant comes to this Court under s 46PR the Human Rights and Equal Opportunity Commission Act 1986 (Cth). The allegations at the core of the action are of unlawful discrimination against him by the University of Queensland and the Royal Australian Navy; racial discrimination - the appellant is of Asian origin - and disability discrimination - the appellant unfortunately has developed a chronic psychiatric condition - are alleged.

2 The factual background to the claim, so far as it appears from material available to the Court, is that the appellant, a young man, after obtaining a bachelor of science with honours degree from the University of Melbourne, enrolled in 1993 as a dental student at the University of Queensland. He progressed through the first four years of his dental course and during it, in 1996, he was appointed to a probationary rank in the Royal Australian Navy ("RAN") under something equivalent to a scholarship scheme whereby the RAN apparently undertook to support him during the remainder of his dental course in return for the appellant undertaking to serve the RAN on graduation as a dental officer.

3 Unfortunately the appellant, who completed all earlier years of his dentistry course at the University of Queensland, failed his final fourth year exams in the 1996 academic year. He repeated that year in the 1997 academic year, but again failed. The consequence was that the University excluded him from the dental school and the RAN terminated his probationary appointment.

4 The appellant took action to try to remedy the difficult situation that it would appear his developing medical condition had put him into. He invoked the appeal procedures within the University of Queensland, ultimately unsuccessfully, and he also appealed the RAN decision terminating his probationary appointment to the Commonwealth Defence Ombudsman, again unsuccessfully.

5 The appellant subsequently brought proceedings before the Human Rights and Equal Opportunity Commission, alleging the kinds of discrimination which, as I understand it, are at the core of his action in this Court. In August 2000, the Commission issued a notice of termination on the basis that it was of the view that the appellant's complaints of racial and disability discrimination were without substance. Hence the action in this Court.

6 Given the basis upon which the judgment appealed from was made - dismissal for non-appearance by the appellant at the commencement of the time appointed for trial - it is necessary to refer to the chronology of the litigation. I take this chronology from the written submissions of the second respondent which I have had checked for accuracy.

7 In September 2000, as I have said, the proceedings were commenced in this court. The first directions hearing was held on 13 December. The appellant was present and was given leave to file a statement of claim. Orders were then made for the appellant to file his evidence affidavits by 22 January 2001 and for the respondents to file their defences and affidavits by 26 February 2001. The next directions hearing took place two months later on 12 February 2001. On this occasion, on an application by the appellant, the time that had earlier been fixed for him to file his evidence affidavits was extended from 22 January to 26 February 2001 and it would appear in consequence of that extension, the time earlier fixed for the respondents to file their material in answer was extended to 6 April. The matter was listed for further directions two months later on 9 April. On 9 March however, the appellant requested an adjournment of the 9 April directions hearings and it was adjourned on that request by the appellant to 30 April 2001.

8 On 6 April, in the meantime, the second respondent served its defence and one evidence affidavit together with a notification to the appellant of its intention to file a number of other affidavits from named deponents. On 24 April the second respondent filed those foreshadowed additional affidavits. When the directions hearing appointed for 30 April came on, the second respondent sought and obtained leave from the court to file some supplementary evidence affidavits by 14 May 2001. On that occasion, the appellant being present, the matter was listed for hearing, the hearing to commence on 30 July 2001 and two days were appointed for the trial.

9 Within the time allowed, that is, on 11 May 2001, the second respondent served the foreshadowed supplementary affidavit. On 17 July 2001, that is, a couple of weeks before the trial was due to commence, the appellant requested an adjournment of the hearing by letter to the court. The respondents indicated they were not prepared to consent to the adjournment of the hearing fixed for 30 July. On 20 July at the instigation of the appellant, a further directions hearing was convened and the appellant requested an adjournment of the trial fixed to commence on 30 July on a number of bases. The court declined to grant that adjournment but gave the appellant leave to subpoena five witnesses, which he indicated at that directions hearing he wished to call.

10 It is apparent from this chronology that the appellant was at all relevant times well aware that the trial would proceed on 30 July.

11 When the matter was called on on that date, the appellant was not present. But between 20 July, when the appellant unsuccessfully sought to adjourn the trial, and that later occasion, correspondence passed between the appellant and the Court and the appellant and the legal representatives of the respondents. This correspondence is summarised in the learned primary judge's judgment. It is appropriate to refer to it briefly.

12 I have already mentioned that on 20 July a directions hearing was held at which the appellant unsuccessfully sought to adjourn the trial from 30 July. On 26 July he sent a facsimile to the District Registrar referring to a deterioration in his medical condition and asking the District Registrar to advise what date the trial would be adjourned to. Copies of the material were sent by the Court to the solicitors for the respondents. His Honour noted that this facsimile was sent from a telephone at an address at 102 Elizabeth Street, Richmond.

13 On the same day, 26 July, the District Registrar sent a facsimile to that same telephone number at that address, pointing out that the request to adjourn the trial made on 20 July had been refused, that the docket judge, ie, the judge responsible for controlling the trial, had been consulted and that the trial would remain listed for 30 July. The District Registrar also advised the appellant in that facsimile that if he wished to apply for an adjournment of the hearing he would need to appear and he would need to have his doctor at Court for the purpose of giving evidence.

14 That facsimile produced a response from the appellant on 27 July. In it, the appellant raised a number of matters. But he took up the advice of the Deputy Registrar about the need to have a doctor at Court and said in his response of 27 July that:

"Dr Arumugam will be asked to be present at the later court date as a matter of the court proceedings."

15 It is apparent from the content of the appellant's facsimile of 27 July that he was responding to the matters raised by the District Registrar in his facsimile of the previous day and therefore that the appellant undoubtedly received the District Registrar's facsimile to him of 26 July, directed as it was to the telephone number at the Richmond address from which it appears the appellant's own earlier facsimile of 26 July had been sent.

16 A copy of a report from Dr Arumugam was received by the Court on 27 July, obviously at the instigation of the appellant. Dr Arumugam, in this facsimile, stated:

"Mr Pham is suffering a marked exacerbation of anxiety symptoms due to the performance pressures associated with his impending court case.

Given his perfectionistic tendencies, high expectations and the perception that the court case is a do or die situation, I believe that in the absence of legal representation he would not be able to adequately represent himself and cope with the stressors. Therefore I recommend that he seeks an adjournment of his court case for at least 2 weeks."

17 The text of that facsimile is set out in full in the learned primary judge's decision. He plainly had regard to it in arriving at the decision under appeal.

18 On the morning of 30 July another facsimile emanating from the telephone number at the Richmond address already referred to was received by the District Registrar from the appellant. He expressed certain concerns about the hearing and, in the body of that facsimile, appears, in effect, to have sought that the trial be put off.

19 As the learned primary judge also noted, the solicitor for the first respondent sent by express post a letter dated 26 July to the appellant enclosing a copy of the District Registrar's letter of 26 July reiterating that the trial was set to proceed on 30 July and that the respondent would insist that it go ahead; the solicitor told the appellant that if there was to be an adjournment, there would have to be an application made by the appellant and the respondent required the doctor who might be relied on by the appellant to attend for cross-examination.

20 It was on this set of factual circumstances that his Honour determined to dismiss the action on the non-appearance of the appellant, saying:

"I am satisfied that this proceeding should be dismissed. The applicant has been given every opportunity to present his case on the merits or explain properly why the case should be adjourned. The application will be dismissed pursuant to O 32 r 2(1)(c) of the Federal Court Rules."

21 His Honour also ordered that the applicant pay the respondent's costs of the proceedings.

22 This Court's role in these appeal proceedings is limited to the correction of errors of fact or law. The power under O 32 r 2(1)(c) is discretionary. We have therefore to determine if the discretion miscarried, ie, whether any of the well-established grounds for overturning the exercise of a trial judge's discretion set out in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504 and 505 have been made out.

23 I cannot see any error in the learned primary judge's exercise of the discretion against the appellant to dismiss the action. In the course of oral argument counsel for the appellant identified two errors said to vitiate the judgment. The first was that the discretion should be taken to have miscarried because the appellant was a litigant in person and moreover a litigant with a chronic medical disability. It was said that the trial judge should have given him a further chance to bring his case before the Court by granting an adjournment.

24 There is, in my opinion, no sufficient basis for thinking that any such error of law sufficient to vitiate the judgment is made out for these reasons: the appellant, as I have pointed out, complied with the various directions that were given to him in the course of the Court taking the usual action to have the matter prepared for trial. He realised the need for medical evidence to support claims for an adjournment, but failed to put the relevant evidence before the Court. His counsel frankly conceded that the appellant could not afford the fee demanded by the specialist psychiatrist to attend Court. Moreover, such medical evidence as was before the Court in the form of the report from Dr Arumugam does not provide any reason in itself for thinking that an adjournment would have served any purpose. All the psychiatrist suggested was that the trial should be adjourned for a further two weeks or so, without indicating that there was any basis for thinking that that or a similar short adjournment would leave the appellant in any different position from that which he was in when the doctor gave his report on 25 July.

25 As I understand the second error, it can be put in this way: there was an incorrect exercise of the discretion to terminate the action because there was no evaluation by the trial judge of the merits of the case, something that the trial judge could have done by referring to the evidence filed by the parties, including the appellant, in accordance with the directions given. That suggestion was developed into an associated suggestion that this Court should allow the appellant at this stage to develop the point because, as I understand it, he has a strong case on the merits of his claims to having been discriminated against.

26 But O 32 r 2(1)(c) does not require the trial judge, confronted with the non-appearance of an applicant, to embark upon any investigation of the merits of the absent applicant's claim. The procedure for dismissing an action under that particular rule is available only when the trial is called on, ie, only at the point in time when all the preliminary steps, including finalisation of pleadings and marshalling of evidence, have been completed.

27 The procedure available under O 32 r 2(1)(c) should be contrasted with that under O 10 r 7(1)(a) which empowers the Court, if a party fails to comply with an order of the Court directing that a party take a step in a proceeding, to dismiss the proceeding if the default in complying with that order is by an applicant. That procedure can be invoked at any stage of an action, even before pleadings have been closed, and it has been held that where a respondent seeks to dismiss an action under that particular rule the respondent has the obligation of going into the merits of the case, but that is not required under the rule on which the learned primary judge relied.

28 In the material filed by the appellant by way of what is described as a supplementary notice of appeal, and in an affidavit supporting that, the allegation is raised that the trial judge's judgment was flawed with bias. This was developed at some little length in oral submissions by counsel for the appellant. The nub of the complaint, that the trial judge was biased and hence his judgment should be set aside on that ground, was based upon the directions the trial judge gave, some of which gave extensions of time to the respondents to file material and upon the judgment itself dismissing the proceedings brought by a person with a medical disability.

29 In oral argument, counsel for the appellant sought leave to inspect the transcripts of the directions hearings. It emerged that that request was sought not because there was any ground which counsel could state for thinking that the transcripts would contain evidence supporting a case of bias, but simply because it was thought that examination of the transcripts might turn up some such evidence. That amounts to nothing more than a request to fish for a case. The request was therefore declined. But, so far as the appellant challenges the judgment on the ground of bias because of the directions given and because of the dismissal order itself, it is appropriate to note that no complaint for bias has been made until the matter was raised in the material filed in support of the supplementary notice of appeal.

30 There is in my opinion no substance in the challenge based on bias.

31 There is nothing in the material before the Court to indicate that this action took anything other than a common course or that the directions given were other than those commonly given in the ordinary course of proceedings in this Court to bring an action to a state of readiness for trial.

32 The material filed in support of the supplementary notice of appeal also asserts that the decision to dismiss the action constituted unlawful discrimination on this same factual basis as the bias claim now made. For the same reasons that the bias challenge must fail, based as it is on the directions and the judgment, there can, in my opinion, be no foundation for saying that there is discrimination within either ss 9 or 10 the Racial Discrimination Act 1975 (Cth) or ss 5 and 6 the Disability Discrimination Act 1992 (Cth).

33 There is another matter raised in the material relied on by the appellant in support of his supplementary notice of appeal and touched on in argument, namely that the judgment should be set aside because it is said the trial judge failed to comply with s 46PR the Human Rights and Equal Opportunity Commission Act 1986 (Cth). This reads, so far as is relevant:

"[T]he Federal Court [is] not bound by technicalities or legal forms."

34 In my opinion, that provision has no application to the present proceedings and can provide no basis for questioning the judgment. The learned primary judge did not dismiss the action on any technical basis. Rather did he dismiss it by exercising a power conferred on him by the rules of court after investigating whether it was appropriate, because of the appellant's non-attendance in circumstances where he had notice of the trial, to bring the proceedings to an end. As I have observed, the appellant long knew the trial would proceed on 30 July. His attempt to have it adjourned on 20 July failed.

35 On the evidence before the Court, he thereafter sought in writing requests to have the trial adjourned, but failed to take the action he was told was necessary in the way of bringing medical evidence before the Court in support of any renewed adjournment application. He was reminded in the subsequent correspondence of the trial proceeding on 30 July.

36 An application was made in the course of the hearing of this appeal by the appellant for this Court to receive his affidavit challenging whether he had in fact received the correspondence from the court and the solicitor for the first respondent after 20 July referred to in Heerey J's reasons and which I have summarised.

37 The affidavit also challenges the view formed by the trial judge on the basis of the correspondence from the appellant received by the court, that it was in fact sent from the Richmond address. That is as far as that affidavit goes. The Court declined to receive that material because the appellant, quite apart from any correspondence that passed between him and the court and the respondents after 20 July, well knew the trial was fixed to commence on 30 July. Even if the court were to be persuaded as to the matters sought to be raised by tender of the affidavit, that could not affect the absence of any error in the exercise by the learned trial judge of his discretion to dismiss the action.

38 For these reasons I would dismiss the present appeal.

39 MARSHALL J: I agree with the reasons for judgment of the learned presiding judge.

40 FINKELSTEIN J: I agree with the reasons for judgment of Drummond J and with the orders that he proposes. I would only add one additional point. In substance, the appellant says that he was unable to attend at trial because of his medical condition. He makes that contention in support of his general assertion that he has suffered serious injustice by reason of the dismissal of the proceeding. In order to make that point good, it would have been necessary for the appellant to tender some medical evidence establishing that he was truly unable to attend at trial because of his medical condition. There being no such evidence, it is not possible to say that there has been any injustice occasioned to the appellant.

41 DRUMMOND J: The order of the Court therefore will be the appeal is dismissed.

I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond, the Honourable Justice Marshall and the Honourable Justice Finkelstein.

Associate:

Dated: 18 March 2002

Counsel for the Appellant:	Mr L Lindon
Solicitor for the Appellant:	Michael Lumsdem
Counsel for the First Respondent:	Mr E de Zilwa
Solicitor for the First Respondent:	Sparke Melmore
Counsel for the Second Respondent:	Mr PJ Ginnare
Solicitor for the Second Respondent:	Australian Government Solicitor
Date of Hearing:	1 March 2002
Date of Judgment:	1 March 2002