Fonua v Attorney-General of New South Wales & Ors [2000] HCATrans 532 (8 September 2000)

Last Updated: 16 August 2017

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S93 of 1999

B e t w e e n -

LIUFAU FONUA

Applicant

and

ATTORNEY-GENERAL OF NEW SOUTH WALES

First Respondent

STEVE MARK

Second Respondent

CHRIS PUPLICK

Third Respondent

MARGARET BRODIE

Fourth Respondent

KAY JACKSON

Fifth Respondent

Application for special leave to appeal
GAUDRON J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 SEPTEMBER 2000, AT 12.23 PM

Copyright in the High Court of Australia

________________

MR L. FONUA appeared in person.

MS P.A. SHARPE: If the Court pleases, I appear for the first to the fifth respondents. (instructed by the Crown Solicitor for New South Wales)

KIRBY J: Ms Sharpe and Mr Fonua, I should mention that I, as I imagine every judge must do, know Mr Shaw, Mr Mark, and I know Mr Puplick, but I think that would be so of every Judge of the Court. So that I do not believe that my social and professional acquaintance with them disqualifies me, but I feel I ought to put that on the record.

GAUDRON J: Yes, I am in much the same position, although I am afraid I do not know Mr Mark. But I know Mr Shaw and Mr Puplick professionally, although not personally or socially. Yes, Mr Fonua?

MR FONUA: Yes, your Honour, before I move on, I do not want to repeat what I mentioned in the application book, the ground of the application for special leave to appeal. But I would like to rectify Jeff Shaw, under the Act, the Crown is bound by the Act.

GAUDRON J: Under which Act are you talking about?

MR FONUA: The Anti-Discrimination Act 1977.

GAUDRON J: Thank you.

MR FONUA: Section 5 states the “Act binds the Crown”. Because there was no communication with the respondent – I understand that Jeff Shaw has left the ministry, but there was no communication to delete or take his name off. It is up to the respondent, whoever represented the Crown at this point in time - - -

GAUDRON J: Do you wish to change it to the Attorney-General of New South Wales?

MR FONUA: That is what I want.

GAUDRON J: Is that opposed?

MS SHARPE: It is not opposed, your Honour.

GAUDRON J: Yes, the title of the proceedings of the first respondent will be changed to the Attorney-General of New South Wales.

MR FONUA: Yes. your Honour. The other matter about the former president of the Anti-Discrimination Board, there was no discussion or communication from the respondent to delete his name because he was the president of the Anti-Discrimination Board at the time of my complaint, and it is up to the respondent to change the name or whoever the - - -

GAUDRON J: Well, there is no necessity to change those, I do not think.

MR FONUA: All right, your Honour. The application before this honourable Court to apply for leave to appeal, and I already filed an application for leave to appeal. The ground of the appeal, I think I will take a.....in there – what is wrong with the decision of the Appeal Court. I will take the Court to page 37 of the application book. I have been labelled by the respondent and presumably by the Court, as a vexatious litigant.

KIRBY J: I do not think you have been so labelled by the Court.

MR FONUA: Not by the Court, but by the respondents.

GAUDRON J: Well, you won on that issue below.

MR FONUA: That is why I appealed to this honourable Court to have a look at section 84 of the justice of the - - -

GAUDRON J: No, but you won on that point, did you not? You have not been ruled to be a vexatious litigant.

MR FONUA: That is what I mentioned because actually the Court of Appeal, I lodge an application for appeal and then they changed the, whatever, formula or tactic that use to apply for declaration of a right to appeal. That is what my main concern with the decision of the lower Court, of the Court of Appeal, they change the - - -

GAUDRON J: What is it that you say is wrong in the decision of the Court of Appeal?

MR FONUA: What is wrong with the decision of the Court of Appeal? Steve Mark alleges his decision given on the 12th – I am on page 37 - - -

GAUDRON J: The decision of the Court of Appeal is at page 33. What is wrong with this decision?

MR FONUA: What is wrong with the decision of the court? The court failed to mention my allegation that the respondent failed to investigate my complaint. Not mentioning in the decision of the appeal court, they only referred to a general whatever they mentioned, but they did not specifically refer to the failure of the respondent to investigate my complaint according to law.

GAUDRON J: Your complaint had been dismissed?

MR FONUA: The complaint has been dismissed by the Tribunal, the Equal Opportunity Tribunal, but what I raised before that - - -

GAUDRON J: And you tried to appeal from that decision?

MR FONUA: On other racial issues.

GAUDRON J: Exactly. But you cannot go around attacking decisions of the Tribunal in collateral proceedings. You were out of time for that appeal, were you not?

MR FONUA: That is - - -

GAUDRON J: Just answer my question, Mr Fonua. You were out of time, were you not?

MR FONUA: For that issue but not for this matter.

GAUDRON J: No, it would not matter whether it is this matter or not. There was a decision of the Tribunal. The normal course is for you to appeal on questions of law, which you attempted to do, and that matter came here. Now that having been done – and you were refused special leave to appeal by this Court on that matter, were you not?

MR FONUA: This is not about this matter.

GAUDRON J: I know this is not the same matter, but the point is when you have already been through all those procedures, not only had you been to the Court of Appeal with respect to the decision of the Anti-Discrimination Board, but you had been to this Court – and as I understand it, I think you attempted proceedings in the Industrial Commission as well. There is no necessity for a court to deal with questions of that nature.

MR FONUA: Your Honour, the matter before this honourable Court is not about any Discrimination Act; the matter is about the failure of the respondent to investigate my complaints. It was made clear many times before the Tribunal, the Tribunal has no jurisdiction to deal with my complaint against the respondents, so I did not raise that issue in that racial discrimination thing. I went before the Supreme Court and this honourable Court the failure of the respondent to investigate my complaint. There was a cover-up in every way and that issue was not available to me at the time of the Tribunal hearing. All the information was available to me through Freedom of Information. That omission was a cover-up to deny me - - -

GAUDRON J: There was a detailed written judgment delivered by the Tribunal on 13 June 1995. Is that not correct?

MR FONUA: That is correct about the racial discrimination thing, your Honour.

GAUDRON J: Yes, and the Tribunal dismissed your complaint.

MR FONUA: Because the failure to investigate was not taken by the Tribunal. They told me many times, “Do not complain about the respondent, you complain about BHP”, because that is what is available at that time.

GAUDRON J: Yes, I understand. Very well.

MR FONUA: I think I have lodged in my bundle of documents about the denial of natural justice. I invite the Court to have a look at the case of - - -

GAUDRON J: Who do you say denied you natural justice?

MR FONUA: Denial of natural justice - - -

GAUDRON J: Yes, but who do you say denied you natural justice?

MR FONUA: By the first respondent, second respondent, third respondent - - -

GAUDRON J: Well, now, we are concerned with the decision of the Court of Appeal. Do you say they denied you natural justice?

MR FONUA: Yes, they denied me.

GAUDRON J: Very well.

MR FONUA: I invite the Court, if you look at the decision of the Appeal Court, never mention one thing about denial of natural justice. It is a principle of law that must allow me or give me time to respond to whatever the investigation of my complaint. I think I will take the Court to document No 6. I filed it a few days ago. It is not in the application book, but documents.

GAUDRON J: What is that document?

MR FONUA: Document No 6, your Honour.

GAUDRON J: Can you identify it more precisely. Where will I find that? These are the additional documents filed in court below?

MR FONUA: Yes, I think page 39.

GAUDRON J: Page 39 of what?

MR FONUA: Page 39 of the bundle of documents.

GAUDRON J: Thank you.

MR FONUA: I refer and I refer many times before the primary judge and the Court of Appeal that a threat letter to sack the applicant, as agreed to by Kay Jackson, one of the respondents, and Peter Walsh of BHP, was never revealed to me, or gave me a chance to know about that threat letter. They wrote the letter one day before they sacked me. They did not give me on the date of my sacking. I was dismissed without getting anything written at all. Later, probably was still attached to my personal file but BHP has closed it all now. Where is the document? They arranged for someone else to give it to me at a later date. The one who gave me the document was Kay Jackson, one of the respondents.

I will go on to No 7 of that bundle of documents. Kay Jackson, one of the respondents, wrote to BHP to provide any material for the president to consider. Your Honour, I ask what the police do in investigate a criminal matter or any. The police can write to someone else and ask to provide any information - - -

GAUDRON J: Certainly. This is conciliation, that - what was then in process was conciliation proceedings. If you make a complaint about the BHP as you did, I think, the BHP has its rights to respond to them.

MR FONUA: Yes, but I was not given the document. It was available to me under freedom of information. What I seek really about the investigating of my complaining, because the law is stated very clearly, section 89 says that the respondent, or the president, is to investigate the complaint. Not to wait until I was dismissed and after two months of my dismissal, they wrote to BHP to provide any document or any information. It could be is a false statement. I say that every time before the lower court and now to this honourable Court, the statement was false. It was not brought to my attention for a comment. That is a denial of natural justice.

It was up to the respondent and the other party to ask for some information, and on the same date, Kay Jackson recommend the report from BHP. At that time I was already dismissed. What the Tribunal told me at the hearing, “Your complaint about BHP, the president and his officers.....So the issue of failing to investigate the complaints, it was not a matter for the Tribunal to determine. It is a matter for the Supreme Court to determine based on the facts of the case.

I move on to No 8, the BHP report of investigation by McClead and Peter Walsh, both of them they already left the country. It was recommended by Kay Jackson on the same date and that is what the decision of the Tribunal was based. I asked them for any investigation report. They did not give it to me. The first time I saw the report, when it was before the Tribunal. That is a very serious matter for someone who has been authorised by the Act to investigate and not to take sides and ask for someone, “Will you please give me some information?”. On the same date, she recommended and the president, after about six weeks, says, “All right”. That is it.

I ask the Court to have a look at the case of the Minister for Immigration, it deals with denial of natural justice. That is what my main - this argument with the lower court decision. They failed to take into account my dissatisfaction with the investigation of my complaint.

I think before I will say anything further, the same as the BHP case, I will make the same argument again. The decision of the – I think that is all I can say. All the material is before this honourable Court, and I will make a response to whatever the respondents say.

GAUDRON J: Thank you. That is all you wish to say on this application?

MR FONUA: I will sum up because I will refer to some points.

GAUDRON J: Thank you, Mr Fonua. We need not trouble counsel for the respondent.

We are satisfied in this case that there is no reason to doubt the decision of the Court of Appeal. Accordingly, special leave must be dismissed and the matter having been the subject of written submissions, it will be dismissed with costs.

AT 12.43 PM THE MATTER WAS CONCLUDED