Gajalakshmi
Paramasivam
23 March 2017
Freedom of Speech v Racial Discrimination or Defamation
[While
some argue that Defamation is at direct conflict with freedom of speech of an
individual, it is important to note that freedom of speech as a fundamental
right is not without limits. The Constitution of Sri Lanka itself, while
granting citizens the right to freedom of
speech, specifically states that this freedom shall be subject to “such
restrictions as may be prescribed by law in the interests of racial and
religious harmony or in relation to parliamentary privilege, contempt of court, defamation or
incitement to an offence.”]
Most complaints of mine, on the basis
of unlawful Racial Discrimination here
in Australia, were dismissed as being ‘frivolous and vexatious’. When a lay
litigant presents her/his case in Court – the meaning of the lay litigant must
be upheld above that of the Judiciary, unless the law defines the word. Without such Equal Opportunity based
controls, lawyers without commitment to their professional standards, takeover the
case and find unethical shortcuts to win – especially in courts were the judge
is weak. When I brought defamation case against relatives by marriage – the NSW
Supreme Court ruled that they did not have jurisdiction. I however, had a major
victory – by speaking the simple Truth as Australian:
After the long presentation by the other side lawyer, the Judge asked me
to make my presentation. I had already responded in writing and therefore said
simply words to the effect:
‘If I
were to be banned as a vexatious litigant – based on the applications by these
Applicants – then I would seriously consider returning to Sri Lanka’
The application by the relatives through
the lawyer to label me as a vexatious litigant was dismissed. I made the
Soul-Connection with the Judge – Australian to Australian – to dismiss lawyers
who had become Vaddukoddai Sri Lankans by presenting their Truth – that by
conduct they were Vexatious in terms of
Tamil cultural laws. The background to this is in Appendix 1.
My own contribution to interpreting ‘frivolous
and vexatious’ provisions – as a committed practitioner of Law is in Appendix 2.
Changes have resulted since then to the laws governing the functions of Human
Rights and Equal Opportunity Commission in relation to Racial Discrimination
Act:
http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights_inquiries/FreedomspeechAustralia
Freedom of speech
in Australia
On
8 November 2016, pursuant to the section 7(c) of the Human Rights (Parliamentary Scrutiny) Act 2011, the
Attorney-General referred to the Parliamentary Joint Committee on Human Rights
the following matters for inquiry and report:
- whether the operation of Part IIA of the Racial Discrimination Act 1975 (Cth) (including sections 18C and
18D) impose unreasonable restrictions on freedom of speech; and
- whether the complaints-handling procedures of the Australian
Human Rights Commission should be reformed.
Terms of Reference
To inquire, and report to the Parliament by 28 February 2017, on the
following matters:
Whether
the operation of Part IIA of the Racial Discrimination Act 1975 (Cth) imposes
unreasonable restrictions upon freedom of speech, and in particular whether,
and if so how, ss. 18C and 18D should be reformed.
Whether
the handling of complaints made to the Australian Human Rights Commission (“the
Commission”) under the Australian Human Rights Commission Act 1986 (Cth) should
be reformed, in particular, in relation to:
the
appropriate treatment of:
trivial or vexatious complaints; and
complaints
which have no reasonable prospect of ultimate success;
ensuring
that persons who are the subject of such complaints are afforded natural
justice;
ensuring
that such complaints are dealt with in an open and transparent manner;
ensuring
that such complaints are dealt with without unreasonable delay;
ensuring
that such complaints are dealt with fairly and without unreasonable cost being
incurred either by the Commission or by persons who are the subject of such
complaints;
the
relationship between the Commission’s complaint handling processes and
applications to the Court arising from the same facts.
Whether
the practice of soliciting complaints to the Commission (whether by officers of
the Commission or by third parties) has had an adverse impact upon freedom of
speech or constituted an abuse of the powers and functions of the Commission,
and whether any such practice should be prohibited or limited.
Whether
the operation of the Commission should be otherwise reformed in order better to
protect freedom of speech and, if so, what those reforms should be.
The
Committee is asked, in particular, to consider the recommendations of the
Australian Law Reform Commission in its Final Report on Traditional Rights
and Freedoms – Encroachments by Commonwealth Laws [ALRC Report 129 –
December 2015], in particular Chapter 4 – “Freedom of Speech”.
In
this reference, “freedom of speech” includes, but is not limited to, freedom of
public discussion, freedom of conscience, academic freedom, artistic freedom,
freedom of religious worship and freedom of the press.
I took my Truth to the Human Rights &
Equal Opportunity Commission which was NOT committed to Truth but functioned
more as an extension of the Executive Government. But I became a true relative
of the Commission and the Government through such actions. As per my experience
– when we contribute to the Sovereignty of a body – we become true relations. Natural
forces of Truth work to accumulate our credit earned but denied and bring us
the returns in higher forms as per our needs. I believe that it was due to such
forces that I successfully bid to own this home-unit – in Coogee. The
developers from Singapore – Prima Ltd. were my employers in Sri Lanka – before I
joined Sri Lanka’s National Carrier – Air Lanka. Likewise, my credits here in
Australia are enjoyed in Vaddukoddai where folks seek me out for advice
regarding their family problems. Truth accumulates through Soul-Power. Hence we
carry the Truth beyond borders of life – through rebirth.
Appendix 1
The Questions I sought to ask Mr. Mahadevan Sritharan
in relation to the Defamation Complaint.
As you
would be aware, an application has been made to this Court, including on your
behalf to Dismiss my Statement of Claim and also to have me listed as a
Vexatious Litigant. Evidence has been produced on your behalf to support this
application.
I have
stated at paragraph 4.80 of my affidavit: I affirm my
belief that my husband and I carried the responsibility to ensure that those
sponsored by us were seen to be part of our family unit and NOT independent
refugees. I confirm that I had/have knowledge of others in our community with
closer relationships to family members than the Defendants had with us, whose
applications were rejected by the Australian Immigration Authorities. I affirm
my belief that I had the social responsibility to demonstrate to wider
community that it was our credit as sponsors that resulted in our family
members being more successful in migrating to Australia, than others who were
known to have suffered more due to the war. I affirm my belief that this helps
promote good & genuine Australian sponsorship which I believe is strongly
needed for Australia to be a successful nation of immigrants. ‘
The
next set of questions I ask you would be to substantiate the above and also to
highlight that I USE the institutions that uphold law and order and that I do
not abuse them.
1) As
you would be aware, even recently, refugees from Sri Lanka arrived in Australia
by boat
2)
Would you confirm to this Court that you were sponsored by my husband and I to
come to Australia
3)
Would you confirm to this Court that when you arrived in Australia, you
initially lived with us at 906/56, Carr Street; Coogee, as part of our family
4)
Would you confirm that my husband and I closely monitored your conduct and
specifically your progress in relation to your education and later your
employment?
5) At
that point in time – would you say you treated us as being of higher status –
for example your guardians?
6)
Would you confirm that I am related to you as per Australian Marriage Law
through which I am the lawful wife of your uncle Mr. Subramainiam Paramasivam
7)
Would you confirm that when you came from Jaffna to Colombo with your uncle Mr.
Sabanathan who is listed in this case as the Second Defendant, your cousin
Nithi refused to accommodate you at her place and you were very upset and cried
over the phone to us saying ‘I have no one to stay with; let the army take me’?
8)
Would you confirm to this court that my husband & I arranged with the
Second Defendant’s sister to find you appropriate ‘paid’ accommodation and that
we remitted funds towards this?
9)
Would you confirm that we were taking over the responsibility of your parents
in doing this for you?
10)
When you said ‘let the army take me’ – were you saying that
they would take you because you as per your knowledge of yourself were a Tamil
Tiger and therefore legally a Terrorist in Sri Lanka or were you saying that
the Army and therefore the Government of Sri Lanka would according to your
assessment - abuse their power and therefore arrest you just because you were a
young Tamil from Northern Sri Lanka?
11) If
latter, do you consider this to be a vexatious statement
against the Government of Sri Lanka considering that you were a Sri Lankan
citizen at that time?
12)
Would you confirm that your parents continue to be legally Sri Lankan citizens
and that they have nominated themselves as the legal Administrators of the
Estate of my brother in law and your uncle – Mr. Subramaniam Yoganathan.
13) As
you would be aware, my husband and I have strongly objected to this nomination
on the basis of our assessment that brothers of the Deceased are the rightful
heirs as per the Laws of Northern Sri Lanka – which include Thesawalamai – the
Customary Law of Tamils.
14) At
paragraph 43, of the Defendants’ Affidavit there is reference to a document ,
marked ‘JL30’ described as an email comprising a letter to Mr.
Keith de Krester as well as the psychiatric report of the Plaintiff (myself)
undertaken by Dr. Rosalie Wilcox following the release of the Plaintiff on bail
after her arrest in 2005. (produce that as exhibit 1). I draw your attention to
the statements by me to Mr. Keith de Krester ‘At first read I felt appalled
that a fellow Sri Lankan would publicly write to a position that is a part of
the highest official position in Sri Lanka. Given that you carry the name ‘Sri
Lanka’ in your current position as President of Help Sri Lanka Inc., you
degrade your own position by trying to degrade the position of President of Sri
Lanka. Until we are driven by Truth – we have the responsibility to work within
the official structures and their positions, through which many outside our
physical circles invest in the common institution – in this instance Sri
Lanka.’
15)
Did you take any action against Mr. Keith de Krester – socially or legally over
his ridicule of the President of Sri Lanka through Sri Lanka’s lawful
representative – the Consul General of Sri Lanka.
16) I
draw your attention to the following paragraphs in that document where I state
: ‘I realized through my direct experiences, that if I had won
legally, I would have set the precedence to others who think they are like
me to ‘use’ the system which is not strong enough to deliver judgment
on racial equality. All our pain and loss could be described in many
forms and to the extent they are based on our belief – they would all be
‘right’ in their appropriate forums. Mine was the wider Australian Public
because I had diligently followed Due Process and matured beyond
administration. Given that majority Australian Tamils did not share my
pain – I concluded that it was the wrong form for them. Like the Tamils of
Ceylon, Australian Tamils are currently seeking to elevate their economic base
and to them the same loss would seem to be part of General Administrative
problem rather than racial. Only those who have contributed strongly to racial
equality would give it racial ‘form’ and rightly so. Others do not have the fundamental
right to take action except within the limits set by their carers. Hence
in this context, what you see as being ‘brazen’ could be seen by me as
commitment to Due Process.’
17) As
per the above, I have confirmed that the Australian Tamil Community which you
are a part of, did not have strong investment in racial equality. Have you made
strong investment in Racial Equality in Australia? Would you as per your
knowledge, say that your investment is stronger than mine?
18) Do
you consider yourself to be of Equal or higher status than I in the world of
Law and Order – high enough to have me listed as a Vexatious Litigant?
19) I
refer to the following paragraph written by me and included in the document
produced by you: ‘Positions are most important because they help us
invest in the ‘common’ family rather than through individuals – some of whom we
may like more than others. Using my Air Lanka training – I would say that
Multilateral agreements are far more global and promote global commonness than
bilateral agreements. The current move by the Australian Government to invest
in a ‘regional processing center’ to manage asylum seekers is an
acknowledgement that they are not able to effectively use global systems. I
discovered this through my own legal actions using our Racial Discrimination
Act 1975 which includes the UN Convention on the Elimination of all
forms of Racial Discrimination. Through the Due Processes that I followed,
I discovered that majority of our judges were not conscious of this global
standard at all and hence hastily applied the general rules that they already
knew – irrespective of whether it was appropriate or not. Thus the base model
itself is flawed. As I said to a Colombo Tamil this morning, when things go
wrong they blame god – even though the system was not structured by god. God’s
system is Nature / Truth. The account in Appendix 2 confirms
what happens in Australia, to believers driven by Truth at the National level.
But we still canonized Mother Mary MacKillop. ‘
20) Do
you identify with my reference to Australians canonizing Mother Mary Mackillop
– as a Saint
21)
Yet – they have declared that I am a mentally ill person – due to my faith in
Hindu Saints?
22) Do
you identify with my statement in the above letter “To blame the highest
position of a nation, you need to have matured ‘beyond administration’ – the
official structure of humans. Have you ever found fault with the head of a
nation through Due Processes? If yes, then you do have the authority to find
fault with the highest position of the nation of Sri Lanka. Otherwise you have
to start using Due Processes which at the current time are UN systems for you
or you have to work through Sri Lankans who have lawful authority to the
protection of Due Process.“
23) Do
you recall that in 1997, just before leaving, Colombo for Chennai in India, I
spoke to the Second Secretary – Australian High Commission in Sri Lanka, to
communicate to her that you were an important member of my family and that it was
a need for us to not lose any more members of our family to the war? Do you
recall knowledge of this?
24) Do
you recall that soon after, you were asked by the Australian High Commission to
produce confirmation of the relationship with my husband Mr. Subramainiam
Paramasivam through production of his birth Certificate. Do you recall ringing
up our daughter Uma at our Sydney home – at 906/56, Carr St; Coogee – to ask
for copy of this document?
25) Do
you recall that we later advised you that our daughter had informed us when we
called her from India and that we had directed her to the files that contained
the Birth Certificate – a copy of which Uma duly forwarded to you for the
purposes of confirmation of family connection to the Australian High Commission
26)
Would you confirm to this court that Mr. Subramainiam Tharmalingam - the 8th
Defendant in this matter and my husband and the late Mr. Subramainiam
Yoganathan are all brothers of your mother Mrs. Sakthidevy Mahadevan – the
Sixth Defendant in this matter.
27) As
per our cultural hierarchy /order – would you say that Mrs. Anandaletchumy
Tharmalingam – the wife of the 8th Defendant in this matter has equal or higher
status than I
28) As
per Legal Order / Hierarchy – would you say that Mrs. Anandaletchumy
Tharmalingam – the wife of the 8th Defendant in this matter has equal or higher
status than I the wife of Mr. Subramainiam Paramasivam
29) At
your workplace, do you perform higher level work than your seniors? If yes,
then do you expect status and/or money reward for such work?
30)
Would you confirm that as per cultural order, I did higher level work for you
than (a)Mrs. Anandaletchumy Tharmalingam ; (b)Mr. Tharmaratnam Sabanathan ;
31)
Would you confirm that as per legal order all of us are Equal?
32) Do
you oblige Mr. Tharmaratnam Sabanathan more than you oblige me?
33)
Would you therefore agree that your demonstrated respect for Mr. Tharmaratnam
Sabanathan is higher than your demonstrated respect for me.
34)
Does this have any legal validity?
35)
Would you confirm that the first Defendant in this matter Mrs. Saraswathy
Sabanathan and your mother are sisters?
36)
Between my husband Mr. Subramainiam Paramasivam and Mrs. Saraswathy Sabanathan,
whom do you oblige more? Would you therefore agree that your demonstrated
respect for Mrs. Saraswathy Sabanathan is higher than your demonstrated respect
for my husband ?.
37) In
terms of Immigration issues, who would you say earned the highest status within
the family - on merit basis ?
38)
What has been your contribution to upholding this status?
39) Do
you have any knowledge at all about refugees arriving in Australia by boats and
that many of them come at the risk of losing their lives?
40) As
per your assessment as independent applicants – are they less deserving than
you to live in Australia due to war related risks in Sri Lanka?
41) Do
you agree that your higher deservedness is due to our legal relationship as
family ?
42) In
paragraph 4.84, I state ‘I affirm my belief that Australians of
Vaddukoddai origin as part of the electorate that gave birth to the declaration
of Separate State for Tamils, which I believe in turn gave birth to the Tamil
Tigers (Liberation Tigers of Tamil Eelam / LTTE) have a greater responsibility
to live as per the values of their sponsors, until they are able to claim with
belief that they are Australians with the natural powers to influence the
Australian social justice system, through everyday life.’ Would you
confirm to this court – that you are of Vaddukoddai origin.
43)
After you became Australian citizen, would you say that as per our legal status
- you and I are Equal Australians, unless known otherwise through merit basis?
44) In
Immigration Administration and Legal matters would you say I am of higher
status than yourself?
45)
Would you confirm that – around 2005 – you approached my husband and I, asking
us to speak to Mr. Balasundaram – whose second daughter you wanted to marry?
46)
Would you confirm that you informed us that you had already spoken to Mr. &
Mrs. Sabanathan and your parents about this and that they had given ‘in
principle’ support for your marriage. You wanted us to speak to Mr. Balasunaram
– so that the marriage could take place without further delay
47) Do
you recall knowledge of me speaking to your father first and then to Mr. &
Mrs. Balasundaram to find out their terms of marriage
48) Do
you accept that this was an arranged marriage and not a marriage of your choice
alone?
49)
Would you confirm that as per the discussions, Mr. Balasundaram promised to
give as dowry the house next door to where he was living?
50)
Would you confirm that we later found out that that house had legal
encumbrances which he did not reveal to us?
51)
Has your wife received that promised dowry yet?
52) Is
dowry part of the Customary Laws of Tamils of Northern Sri Lanka - called
Thesawalamai
53) As
per this cultural system, was your responsibility as a son to your parents,
different to the responsibility of your wife to her parents? Would you say that
as per our cultural system which is confirmed and regulated by the principles
underpinning the law of Thesawalamai – dowry is given to daughters and that
sons inherit wealth after death of parents and that sons have first
responsibility to take care of their parents?
54) As
per Common Law in Australia as well as in Sri Lanka – would you agree that
there is common responsibility without grading? Hence that you did not have a
responsibility to accept dowry as per Common Law?
55)
Would you confirm that when your daughter was born I was the only relative to
be present in hospital to support you and your wife?
56)
Would you confirm that your parents in law had applied for visitors visa to be
with their daughter – but that their application was rejected?
57)
Refer to Annexure 9 – Would you confirm that I represented you and your wife at
the tribunal and gave the undertaking that your father in law would return to
Sri Lanka at the end of the approved period?
58)
Would you confirm that he did not return but instead you and your wife applied
for refugee status for him?
59)
Would you confirm to this court that his wife and your sister in law
subsequently joined them as referred to in paragraphs 4.96 to 4.99 of my
Affidavit dated 17 May 2012:
Note :
Below are the relevant paragraphs in the Affidavit :
4.96.1
I confirm that when I visited Northern Sri Lanka in January 2010, for a
conference at the University of Jaffna – as part of the post-war development
work in war affected areas of Sri Lanka, I had the following interaction with
the mother in law of the 4th Defendant - Mrs. Indrani Balasundaram:
(i)
Mrs. Indrani Balasundaram said that she had applied for migration to Australia
and that she had included her daughter – the sister in law of the 4th
Defendant, who was already living in the UK – (to our knowledge as a student)
in her application to migrate to Australia.
(ii) I
asked Mrs. Balasundaram why she and her husband could not live in Sri Lanka
where they, according to my observations were living fairly comfortably and
Mrs. Indrani Balasundaram said that she was doing it for the sake of her
daughter who was living in the UK at that time.
(iii)
I pointed out that they were cheating the system and were letting down me – the
person who gave the assurance to the Australian Government that her husband
would return after his visit and Mrs. Indrani Balasundaram said words to the
effect ‘you are too strict’. I stated that their actions were totally against
the cultural structures of our Tamil Ancestors according to which their son who
was also as per my knowledge in the UK had the responsibility to take care of
his parents and unmarried sister and not our nephew (4th Defendant) whose
higher education, higher status and higher income , were, according to our
belief, largely due to my husband and I and our work and sharing on the basis
of family belief.
(iv) I
pointed out that it was in breach of our Customary Laws for parents to depend
on daughters after marriage. I said I had emphasized this with her husband
during my previous visits to Jaffna. I pointed out also that they had not given
the dowry as promised by them to their daughter who was dependent on our nephew
(4th Defendant) who as per our directions based on family tradition, was taking
care of his parents (Section 1.2 of Annexure 8). I pointed out that her son in
law’s (4th Defendant’s) mother was given dowry and that that has been the
tradition in my husband’s family as well as our community and that it is in
accordance with Thesawalamai - the Customary Law of Northern Sri Lanka.
(v) I
pointed out that the (Australian Government Migration Review Tribunal) Officer
who heard the appeal in support of her husband’s visitor’s visa application had
expressed serious concern about the ability of the 4th Defendant to maintain
her husband over long period of time. I stated that I read this to be based on
the expectation that as Australians the 4th Defendant and his wife would
maintain certain standard of living which would be seriously eroded if three
new adults were added to that family. I said this would reduce our own status
within the Community.
(vi) I
pointed out to Mrs. Indrani Balasundaram that it would be inappropriate for
these reasons to live in the same house as the 4th Defendant and his family and
Mrs. Indrani Balasundaram said that she had laid down the condition to the 4th
Defendant that she would come to Australia only when he found her a separate
place of residence for her to live in.
(vii)
I pointed out to Mrs. Indrani Balasundaram, that the 4th Defendant’s wife was
not working and that the 4th Defendant’s income would not be enough to cover
two homes and Mrs. Indrani Balasundaram said words to the effect ‘we
have been promised Housing Commission accommodation’. (viii) Mrs.
Indrani Balasundaram said that according to the 4th Defendant, I had
discouraged her daughter (4th Defendant’s wife) from giving out her Resume for
work purposes to a Tiger (LTTE who were listed as Terrorists by some
Governments) supporter whilst I was myself attending the conference organized
by Dr. Noel Nadesan who was anti-Tiger (LTTE). I said that I was there not for
political reasons but to participate in a University Conference organized by
Dr. Noel Nadesan (an Australian).
4.97 I confirm
that our subsequent inquiry revealed that migrants of about the age of Mrs.
Indrani Balasundaram, and parents of young migrants living in Blacktown area,
were being allocated comfortable Housing Commission accommodation and concluded
that the 4th Defendant and his wife were abusing the Australian Welfare system
and were for this reason seeking to separate from us – away from our authority,
towards which they joined forces with the 1st & 2nd Defendants in demoting
our status.
4.98 I confirm
that when I returned to Sydney after the conference mentioned in 4.58 above, my
husband and I sought to meet with the 4th Defendant and his wife Mrs.
Shangeetha Sritharan to discuss the above but that only the 4th Defendant met
with us Annexure 10.
4.99
I affirm that my husband and I felt seriously hurt about the message we saw
through the above indicators - of cheating the welfare system. I affirm that we
saw our sponsorship as part of that welfare system of status sharing and hence
abusing that we believed would lead to abusing the government of the wider
system. We believed that this was due also to the effects of the defamatory
statements and actions by the senior Defendants which seem to have been
willingly followed by the other Defendants.
Appendix 2
Dismissal of the Racial Discrimination Act 1975
Where the two
sides are apparently opposites and they show differences on the basis of
factors that cause unlawful discrimination – for example, race, gender, age and
disability – the judge has the responsibility to balance the minority-majority
gap through his own thinking – by consciously taking the minority as right
until proven otherwise through merit basis. This did not happen at most of my workplaces in Australia nor in the Courts.
Where a judge
fails to ensure this zero base – either through Administrative processes or
through affirmative action in his mind,
to be in the shoes of the
minority side when the majority side uses subjective powers – the risk of
miscarriage of justice is high.
From that zero
base onwards, the subjective powers of a judge need to be used from the side that has demonstrated stronger
practice of that particular legislation. In terms of Racial Discrimination Act 1975 – through which I took my complaints
to court – there was enough evidence before the court to confirm that I was a
much stronger practitioner of the
legislation than the other side which had the institutional responsibility to
show how they had practiced it with me,
through their local / internal procedures. We never got there due to
their applications claiming that I was a frivolous
and vexatious litigant. Given that I knew I was not – the court process
helped me discount the rulings of the courts in all similar matters – by that
falsity so that I would have the experience at the true level.
I Will Not be
TOLD What to do
After the
hearing of the matter Paramasivam v University of New South Wales & ors.
[2006] NSWSC 1189, in the New South Wales Supreme Court I wrote to Mr. Philip
Ruddock, who was then the Attorney
General about my experience. My letter dated
08 November 2006, under the Subject Heading ‘I Will Not be TOLD What to do’
included the following:
‘During
cross examination on Monday, 06 November 2006, of Ms Petra Zlatevska - a lawyer
from the office of the Crown Solicitor, I asked Ms Zlatevska about the criteria
for a matter to be of substance.
During the submission by the lawyer for the University of New South Wales yesterday, his Honour asked whether frivolous and vexatious were different. The lawyer said they were not.
My submission after the three Defendants submitted theirs is as follows and is very important due to the wording of the reasons for Judgment - even though :the Claim was dismissed by his Honour:
‘Your honour, you asked the Defendants as to where to find the definitions of ‘frivolous and vexatious?’ specifically asking whether they were different. I respond as per my work with the Human Rights & Equal Opportunity Commission, which is included as part of the Third Defendant.
‘Frivolous, is an extreme form or irrelevance. I have established that to qualify as frivolous three ingredients are necessary. They do not include the possibility, however strong it may seem, of, loss of benefits that the verdict is likely to deliver. To my mind, the test for frivolous is ‘ownership’ established through 3 criteria:
(1) I ought to have suffered pain/ damage
(2) I ought to have provided facts that could be substantiated - through evidence external to myself - that the Defendants were part of the experience that caused me pain and/or damage.
(3) That I had a lawful relationship with the Defendant.
‘Vexatious claim as per Government policy documents are expressions that criticize government policy and law, outside Due Process. It is not criticism of the person in the position who appears to represent the law.’
Your Honour, you mentioned during the submissions made by the Defendants that I would not be told. That your Honour is the Truth. To the extent I identify the statement made by the person, with my own wisdom in a particular issue and law, I am happy to be ‘told’. I accept such telling as a mark of respect for the position that the person holds. I follow this in my family life - to this day with my mother who often ‘tells’ me what we both know I know.’
Justice Sully wrote in his Judgment ‘Mrs Paramasivam is a litigant in person. It
is clear that she entertains very strong feelings of grievances about things
that have happened as between her on the one hand and each, separately, of the
three defendants, on the other hand.’
The three Defendants were University of New South Wales, State of New South Wales (due to Police
action) and Commonwealth of Australia (which included the Human Rights and
Equal Opportunity Commission).
His Honor stated also ‘It is a matter of concern to me, as a Judge of the Court, and as the Judge rostered in
particular to deal with the present matters, that Mrs Paramasivam has, and has
expressed, some points of view which I find troubling, not least of all because
they are points of view that I have myself encountered from time to time in
recent years when presiding in Court at the hearing of matters one of the
parties o which is a litigant in person…….I do not propose to characterize
these proceedings as “frivolous”. I do that out of what I intend to be a proper
respect for the views which the
plaintiff undoubted holds as a matter of deeply embedded conviction. One can say a lot of things about the course
of litigation pursued by the plaintiff; but I do not think one can fairly say
that her approach to it has been frivolous in the normal grammatical sense of
being insufficiently serious or insufficiently purposeful’.
Then in his own approach towards a closure
for himself Justice Sully stated ‘I have
no doubt, however, that the proceedings are properly to be characterized as
“vexatious”. To bring a fresh set of
proceedings in this Court, after all of their historical antecedents in the
District Court, is almost by definition vexatious and especially so when the
framing of the proceedings that have been commenced in this Court has, in
truth, nothing to distinguish it in any substantive way from the tortuous
District Court proceedings antecedent to the proceedings in this Court.
Further, I am comfortably of the view that this is a case in which the
proceedings can be characterized properly as an abuse of the process of the
Court. I wish to make it clear that I do not imply by that statement any view
that the proceedings have been brought for some sinister or improper collateral
purpose. The material which I have
before me, whatever else might be said about it, cannot, I think, support an
inference of that character. My point is, rather, that there must come a time
when it really does become, in the most literal grammatical sense, an abuse of
the process of the Court to continue to use that process to regurgitate, on a
sixth successive occasion, a pleading not substantially different from
antecedent pleadings which have been held, in the clearest terms, to fall foul
of the relevant provisions of the Civil Procedure Act and its rules. … I order
therefore, that the proceedings commenced in the Court by the statement of
claim filed on 7 February 2006 be dismissed with costs. The exhibits and the items marked for
identification will remain until further order with the Court file.’
Years later, as mentioned in chapter 13 –
as late as 2013, I received claims for costs – with details
that confirmed the lack of commitment to Legal Administration and accuracy
through objectively measurable evidence.
If we wait with forbearance we would identify with the connection – that
they are the vexatious parties and not I.
They become vexatious because they are not ready to use the Racial
Discrimination Legislation with due care – but would rather use their
subjective powers to effectively have it dismissed. What was dismissed through me was the Racial Discrimination Act 1975. What was
wasted was the Public’s Resources – invested in this legislation. Who
benefited? The Judiciary – including lawyers and the Administrators who have
the position power to cover up their deficiencies.
In the same Supreme Court – in the matter PARAMASIVAM v SABANATHAN & 7 Others, the Respondents applied
to have my application struck out on the basis that I was a Vexatious
litigant. In the process they submitted
that I was a mentally ill person. I submitted a 73 page affidavit in response
to their affidavit evidence – which again was my work sent to the Respondents in
the normal course of everyday business.
Back then the younger respondents indicated that they were on my side.
Now after I took steps to block their greed for other people’s earnings – they
also chose to claim through their lawyers that I am a Vexatious litigant. Separation of Powers between family and
national issues is needed in the case of those who are driven by benefits. If those in power fail to uphold the doctrine
of separation of powers between those who execute and those who check their
work – then it filters down o family level – where judgments delivered in
relation to workplace issues are used for family issues to wipe out the good
investments in family relationships. In this instance it also confirms that
there are serious weaknesses in the immigration system – using family reunion.
Who is Vexatious in a Subjective system?
I do accept that they would feel
vexed. But given that this has not been
measured objectively – through independent definition – it is a subjective
decision. In the case against the
University and the Governments – I was in their territory – and given that they
the majority race - developed the structure – I had the obligation to accept
their subjective decision – however much it seemed wrong to me. It like a decision in a family environment –
where one accepts higher authority of
those who made the greater contribution to develop the family. So long as I was within the boundaries
of the family – whether it be my
biological family or that of my husband, I had the responsibility to accept
verdicts that were delivered by those who contributed more than I to that
structure.
To know our common level – I had to go up
to the maximum point I could and my work was towards that and I do believe that
the common level was pushed upwards due to my arduous work in a hostile
environment. This I believe is a naturally cohesive factor that would reduce
the development of the type of attacks
such as 9/11 and Bali bombings.
This kind of
acceptance on the outside to respect my seniors as being above me until known
otherwise - is from my Hindu
culture. Starting with my parents, I did
not protest when they disciplined me and sometimes punished me. I did have disagreements from time to time,
but by finding my own therapy internally for them - especially by reporting to God – I found
closure and this helped me to reduce the disagreements between my children and
I whenever I had the higher subjective
power. With my children, I kept on explaining and explaining –
sometimes well into the night – until I thought they could see from my angle.
Towards this I had to go down to their level and start from zero
advantage. My children in turn did not
act disrespectfully when disciplined by me.
They may also have disagreements with my decisions – but I do feel that
they are less than the disagreements I had with my parents and other family
elders who gave us the family structure.
My son’s ‘certificate in the following paragraph needs to be read
carefully to identify with how they received my discipline and more importantly
– that we support family without calculating rights and wrongs. My son says ‘My mother, Mrs. Paramasivam, has been
uncompromising in maintaining her honesty, and it is disheartening to see her
being punished for this. Whilst, being family, I would blindly support my
mother, in this instance I do not need to be blind, because being aware of the
matter, it is clear that she has been treated unjustly. She has my full
support and admiration, simply because
she has her integrity.’
Our son Pradeep is the least vocal of our
three children. Coming from him – such a
certification is the most honorable one I have ever felt. Blind support for
family is due despite disagreement to that acceptance which naturally allocates
shares in the structure itself. To me
these rewards are far more valuable than any money benefits from my court
actions. Those courts are outsiders to the extent they ordered costs against
me.
