Clarke v Oceania Judo Union [2007] FMCA 292

"From:

John Buckley

To:

Trevor Kschammer

Cc:

Clare Hargrave

Sent: Sunday, October 30, 2005 12.47PM

Subject: OJU Open World Cup - Anthony Clarke entry

Hello Trevor, I'm afraid I am the conveyor of some bad news.

Unfortunately, the Executive of the Oceania Judo Union has determined that Anthony Clarke cannot be accepted as an entry for the OJU World Cup tournament in Tallebudgera next weekend.

This decision has not been taken lightly, and has been reached only after carefully considering the implications of allowing Anthony to participate. This tournament is an international event, and the executive considers that to allow him to compete would have inevitable effects on other competitors and referees.

I sincerely regret that this decision has been taken. If you wish to discuss, please feel free to contact Clare Hargrave, OJU President (see email address above). She may also be contacted by phone (she is currently in Australia in preparation for the tournament). Her Australian mobile number is 0404 542 886.

Once again, I regret having to be the bearer of this news.

My best regards,

John Buckley

Gen secretary

OJU"

On 1 November 2005 Mr Clarke had a telephone conversation with Ms Clare Hargrave, the President of the OJU. In paragraph 18 of Mr Clarke's affidavit he deposes that Ms Hargrave advised him that his exclusion from the competition was because he was blind. Ms Hargrave was in Australia at the time of the telephone conversation. At [19] of his affidavit Mr Clarke states:

"[19] Our conversation then turned to the subject of the training camp. I asked if I would still be allowed to participate. Ms Hargrave said "Yes". I then sought to confirm that I would need someone to supervise me. She replied "Yes, that's right". When I then asked why, she said "In case you fall over or on someone". I asked for confirmation that I could not attend without a carer and again she said "Yes". The conversation concluded with remarks about my taking legal action under the Disability Discrimination Act."

Mr Clarke complained that the actions of the OJU constituted unlawful disability discrimination and referred the matter to the Human Rights and Equal Opportunity Commission ("HREOC"). The Commission received representations from the OJU and held a conciliation conference in August 2006. That conference was unable to resolve the matter. HREOC terminated the complaint pursuant to s.46PH(1)(i) of the Human Rights and Equal Opportunity Commission Act 1986. On 9 November 2006 Mr Clarke issued proceedings out of this court in which he described his allegations of discrimination in the following way:

"I have been discriminated against by the Oceania Judo Union Inc because of my disability in the decision of its Executive emailed to me on 30 October 2005 whereby:

I was excluded from a sporting activity, the OJU Open World Cup tournament held in Tallebudgera Queensland in November 2005 because I was blind;

I was denied the facilities of the competition to enhance my status as a judo player;

My access to the benefits of membership of the Oceania Judo Union through the affiliation of the Judo Federation of Australia was limited.

I have also been discriminated against the requirement that I have a carer if I was to participate in the training camp following the tournament."

The application gave an address for the OJU as 16 Minnehaha Avenue, Titirang, Auckland, New Zealand and another address of the general secretary, Mr Buckley, at Unit 9, 97 Cabramatta Road Mosman, NSW. The application was served on Mr Buckley on 6 December 2006. The applicant seeks orders under Part 6 Rule 6.08 of the Federal Magistrates Court Rules 2001 permitting service upon the OJU which, it is accepted, was an incorporated association, by way of the service upon its Secretary General. In the alternative the applicant seeks an order for service outside the jurisdiction at the registered office of the respondent in Auckland pursuant to Order 8, Rule 3(ii) of the Federal Court Rules.

As a result of service upon Mr Buckley the respondent had notice of these proceedings and appeared at the first court date on 12 December 2006. It advised the court that it did not accept that the court had jurisdiction in this matter and that it would be filing only a conditional appearance. I made orders on that date for the parties to prepare for a hearing on the issue of jurisdiction on 22 February 2007. Prior to the hearing the Acting Disability Discrimination Commissioner filed an application seeking leave to be joined in the proceedings as amicus curiae pursuant to s.46PV of the HREOC Act. The application was supported by an affidavit of Graham Gordon Innes dated 2 February 2007. The Acting Disability Discrimination Commissioner sought leave to appear as amicus curiae in respect of both the preliminary issue as to jurisdiction and also the substantive issues in the case. Having read the affidavit of Mr Innes and heard the parties I consented to the Acting Disability Discrimination Commissioner being joined as amicus curiae for the purposes of the application then before me in respect of jurisdiction only. The application in respect of the substantive proceedings will be heard if I am of the view that this court does have jurisdiction.

In an action for breach of statutory duty it is not sufficient for a party to have been served within Australia for the matter to be brought before the Australian courts. The courts must have jurisdiction to hear. So in Brannigan v The Commonwealth; Brannigan v Human Rights and Equal Opportunity Commission [2000] FCA 1591, a case involving alleged breaches of the Racial Discrimination Act 1975 ("RDA"), the Sex Discrimination Act 1984 ("SDA") and the Disability Discrimination Act 1992 ("DDA") by the Commonwealth in the treatment of one of its employees in London, the Federal Court held that the Acts had no extra territorial affects and therefore it was without jurisdiction at hear the complaint, even though the Commonwealth had been served. In the instant case no proper service has yet been effected because I would have to "otherwise order" under Rule 6.08 to say that service upon Mr Buckwell was good service nunc pro tunc. As there would be little point in making such an order if the court had no jurisdiction in any event I will consider the issue of jurisdiction first.

Mr Clarke accepts his affiliation with the OJU in his application. The statutes and rules of the OJU are annexed to the affidavit of Ms Hargrave as Exhibit "CKH2". Article 6 deals with the headquarters of the Union and relevantly states:

"6(1) The official Headquarters of the OJU is situated in the country wherein the current President resides.

6(2) The OJU shall be incorporated in the country decided by the Executive and approved by the Congress."

It is not disputed that the Union was incorporated in New Zealand in 1992 and that Ms Hargrave resides in New Zealand.

The Union has two governing bodies, the congress and the executive, of which the congress the sovereign authority. Congress meets once every two years and in the interim decisions of the Union are made by the executive. There are six members of the executive who are described in Article 10 and Articles 10.6 to 10.10 deal with meetings of the executive:

"10.6 As a general rule, the Executive shall meet at least once per year and particularly during the days preceding a Congress. A meeting of the Executive may however be convened by the President each time he judges it necessary, or on the request of a majority of the members of the Executive.

10.7 When for any reason whatsoever a meeting of the Executive cannot take place, necessary decisions may be taken following an exchange of letters, e-mail or other written means of communication which results in all parties retaining a written copy.

10.8 The Executive makes all decisions regarding the activities of the OJU between each Congress, and approves or not any urgent decisions taken by the President.

10.9 In order to be considered valid, any meeting of the Executive must include at least four voting members and be chaired by the President, or in the event of the President's absence by the First Vice President, or in the absence of both those officers by the Second Vice President.

10.10 The Executive makes all its decisions by a simple majority. In the event of an equality of votes, the Chairperson shall have a casting vote in addition to his normal vote."

There is also a Secretary General whose position is dealt with in Article 14:

"[14] The Secretary General is elected by Congress every four (4) years. The Secretary General concerns himself with the work of the secretariat and with relations with the member National Federations of the OJU, and with third parties as directed by the President, and is responsible for the official minutes of all meetings of the OJU. The Secretary General shall aid the President in the discharge of his duties and carry out his orders and the directions of the Executive and Congress."

Finally, the applicable law of the constitution is stated to be the law of the country in which the OJU is incorporated (Article 29). That law is therefore the law of New Zealand.

The respondent argues that judo is an international sport controlled by the International Judo Federation at the international level and divided into regional unions of which the Oceania Union is one. The applicant is associated with the OJU in the manner previously described. The aims of the OJU are set out in Article 4 of its constitution:

"4.1 Among others the OJU has the following aims:-

(a) To promote cordial and friendly relations between its members and to supervise Judo activities in the Oceania region.

(b) To protect the interests of Judo in the Oceania region.

(c) To organise the Oceania Judo Championships at regular intervals and where possible every year, as well as such other international events deemed necessary.

(d) To organise Judo throughout the Oceania region and to develop and spread the techniques and spirit of Judo.

(e) To ensure the observance of the International regulations of Judo within the Oceania region.

(f) To affiliate to, and support the International Judo Federation."

The 2005 OJU Open World Cup could be considered the manifestation of Aim 4.1(c) but the fact that the World Cup was organised in Australia in that year was merely an incident of the OJU's responsibility. The choice of venue was fortuitous. The decision to hold the championship and the organisation that went into it derived from the headquarters of the OJU in New Zealand. This way of looking at the OJU's activities allows for consistency between the member countries of the OJU so that the same rules of participation will apply to each. The respondent argues that the participants, including the applicant, wanted the OJU to run the competition from New Zealand and make decisions about the competition in that country. The respondent argues that any act of discrimination took place in New Zealand because the emails and telephone conversations were instigated from the president's office and the residence of the union is the country where the current president resides.

In her affidavit Ms Hargrave states that the decision to decline Mr Clark's entry into the 2005 OJU open world cup was "made by all six officers of the executive which were from four different countries. Two of the executive are of course from the Australian federation. That decision to decline Mr Clark's application was ultimately made in New Zealand where the OJU is incorporated." The court has not been provided with copies of the emails or telephone conversations that made up the decision. Although the court knows that the decision was communicated by Mr Buckley, the Secretary General to Mr Clark's agent on 30 October, it is not given any further clue as to when the decision was made. It would appear that on 30 October Ms Hargrave was in Australia. I propose to put aside any discussion as to where exactly the decision was made as at the hearing it was submitted by counsel for HREOC that this does not really matter because a proper reading of the DDA, in particular ss.5 and 12(13) would give the court jurisdiction where an applicant was excluded from a sporting event in Australia.

The substantive section of the DDA which the respondent is alleged to have breached is s.28:

"(1) It is unlawful for a person to discriminate against another person on the ground of the other person's disability or a disability of any of the other person's associates by excluding that other person from a sporting activity.

(2) In subsection (1), a reference to a sporting activity includes a reference to an administrative or coaching activity in relation to any sport.

(3) Subsection (1) does not render unlawful discrimination against a person:

(a) if the person is not reasonably capable of performing the actions reasonably required in relation to the sporting activity; or

(b) if the persons who participate or are to participate in the sporting activities are selected by a method which is reasonable on the basis of their skills and abilities relevant to the sporting activity and relative to each other; or

(c) if a sporting activity is conducted only for persons who have a particular disability and the first-mentioned person does not have that disability."

Section 28 must be read in conjunction with s.5 so that sub-section 1 should in fact read:

"It is unlawful for a person because of the aggrieved person's disability to treat or propose to treat the aggrieved person less favourably than in circumstances which are the same or not materially different the discriminator treats or would treat a person without the disability by excluding that other person from a sporting activity."

The respondent argues that the conduct which is the subject of the complaint by Mr Clarke is the decision of the OJU made by its executive not to accept his application to take part in the tournament. It is the decision which treats the applicant less favourably. The applicant was not prevented in Australia from attending the competition. He put his application into the OJU and it was rejected by the OJU before the competition commenced. It followed from the exclusion that Mr Clarke could not take part in the competition but the competition could have been held anywhere and the fact that it was fortuitously being held in Australia was not sufficient to bring the discrimination within Australia so that the Act applied.

Neither the applicant nor the Acting Disability Discrimination Commissioner agree with this analysis. They say that it misconceives the purpose of the provisions. They argue that s.28 is enlivened because there is discriminatory action in Australia (the exclusion from the competition) involving persons or things or matters arising outside Australia (the proposal to treat the applicant less favourably) which invokes s.12(13).

16.

Section 12(13) can best be understood by looking at it together with sub-s.12(14) which would appear to be its mirror image:

"s.12(13) The limited application provisions have effect in relation to discrimination within Australia involving persons or things, or matters arising outside Australia.

s.12(14) The provisions of Division 3 of Part 2 have effect in relation to acts done within Australia involving persons or things, or matters arising outside Australia."

Sub-section 12(14) would clearly apply to a decision made in Australia on the grounds of a person's disability to exclude that person from a competition outside Australia. It seems to me equally clear that s.12(13) would work in the opposite direction. The actions of the OJU which is a foreign corporation are brought within the Act by s.12(9). Regrettably, the explanatory memorandum to the bill does not shine any light on these problems stating:

"This clause provides that the legislation is to apply throughout Australia. The provision is also designed to ensure that all possible commonwealth constitutional power is relied upon to support the various provisions of the Act."

There is likewise no elucidation of sub-clauses 12(13) and 12(14) in the second reading speech.

O'Loughlin J did consider a similar sub-section in the Sex Discrimination Act in Brannigan where he said at [18]:

"There is, in those subsections, an explicit reference by the legislature to persons or things or matters arising outside Australia and hence touching, incidentally upon an issue of extra-territorality. Even so, however, the legislature has limited its application to matters of discrimination, "within Australia"."

If, as is suggested by the Respondent, the act of discrimination is limited to the decision to effect of a discriminatory act then it would follow that provided decisions were made off shore even if they involved, for example, the employment rights of an Australian within Australia, the court would have no jurisdiction. This interpretation would not advance the purposes of the Act.

It follows from the above that the fact that the decision may have been made outside of Australia does not rob this court of its jurisdiction and there is therefore no need for me to go into the vexed question of exactly where this particular decision was made. But the respondent argues that even if I come to the conclusion that the court does have jurisdiction I should not exercise my discretion under r.6.08 to deem service to have taken effect or grant leave for service outside the jurisdiction because it argues that in all the circumstances the most appropriate forum for hearing the case is New Zealand. In his helpful written submissions Mr Dalcin, who appeared on behalf of the respondent, after referring to Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1999) 171 CLR 538 and gave seven reasons for his conclusion:

"25.1 The DDA does not apply to the conduct complained of.

25.2 Mr Clarke has access to the laws of New Zealand.

25.3 The events which are the subject of the complaint occurred in New Zealand.

25.4 A large proportion of the participants in the relevant events reside outside of Australia, and in countries all over the world. The only common State is New Zealand, where the OJU is incorporated and its President resides.

25.5 The officers of the OJU provide their time voluntarily and will be subjected to considerable inconvenience having to travel to Australia to give evidence.

25.6 The OJU is an umbrella sports organisation and not a profit-making business and will be placed at considerable inconvenience having to litigate this matter in Australia.

25.7 The members of the OJU have determined that its rules are to be construed pursuant to the laws of New Zealand. This is an indication that the participants in the sport of judo wish their international arrangements to be governed by the laws of New Zealand."

It will be seen that the first and most important point was that the DDA did not apply to the conduct complained of. I have found that it does. If I was to decline to exercise my discretion and effect a stay upon proceedings in this country it would require Mr Clarke to do one of two things. He would either have to bring his case under the Australian Act in New Zealand or bring his case under the New Zealand equivalent. To require an Australian resident to sue in New Zealand for breach of an Australian Act of Parliament would be inconvenient. If the proper law to be considered is the Australian law then the New Zealand court would have to take evidence upon it, whereas a court in this country can decide upon what the law is or is not. I was not persuaded by the respondent's argument that the courts of Australia would be clearly inappropriate to decide this matter in regard to a foreign corporation whose Secretary General resides in Australia, two of whose executive members reside in Australia and where the evidence that will be given will relate to the manner in which the sport of judo is carried out; that sport being an international one with no less association with Australia than with New Zealand.

If it is suggested by the respondent that Australia is a clearly inappropriate forum because proceedings under the New Zealand Act can be commenced in New Zealand then I would have to consider the nature of the New Zealand Act and the manner in which it is applied in that country. I would also have to look at the balance of convenience in relation to the evidence. I have little evidence about the way in which the New Zealand Act is applied. I have been told that the respondents will pay the airfare of the applicant to fly to New Zealand, possibly with a carer or his assistance dog. I am told that the respondent will not raise any defence under the New Zealand Limitation Acts. But I wonder why the respondent should be put to those disadvantages where the case could be heard under Australian law in Australia and the one witness from New Zealand could fly over herself without the need of any associated persons or animals. In reality Mr Dalcin's argument is that all matters arising from the activities of the OJU should be conducted in New Zealand in order to prevent a fragmentation of the legal responsibilities of the association. I can quite see that the Union would want contractual disputes or disputes involving the interpretation of its constitution to be decided in the country of its incorporation and it has so provided in its articles. But the present case involves breach of a statutory duty and the more appropriate forum would surely be the country whose statute has been breached absent any real argument over convenience. In Oceanic Sun Line Special Shipping v Fay [1988] HCA 32; (1988) 165 CLR 197; 79 ALR 9 Deane J states at (p.44):

"If the action has a significant connection with the territorial jurisdiction of the local court (e.g. domicile of the defendant, locus of the relevant transactions, applicable law) and regularly instituted proceedings in that court involve some legitimate and substantial advantage to the plaintiff (e.g. effective enforcement of any judgment) which would not be available in proceedings in the foreign tribunal which the defendant claims is the appropriate one for their determination, it is difficult to imagine circumstances in which it could properly be held by the local court that it was such an inappropriate forum for the proceedings that their continuance would be oppressive or vexatious to the defendant."

The dicta of Deane J was adopted as the correct approach by the majority in Voth at (p.125). In Voth Mason CJ, Deane, Dawson and Gaudron JJ state at [54]:

"It seems to us that Lee J in Anglo-Australian Foods Ltd. v. Von Planta (1988) 20 FCR 34 and French J in Green v. Australian Industrial Investment Ltd. [1989] FCA 482; (1989) 90 ALR 500 placed too much weight upon the notion that a proceeding regularly invoked provides a prima facie right to have the proceeding continue in that forum. That is not to deny that, in deciding whether it has been established that the chosen forum is clearly inappropriate, the extent to which the law of the forum is applicable in resolving the rights and liabilities of the parties is a material consideration. In this respect Gaudron J stated in Oceanic Sun (at p 266), as a qualification to her endorsement of the view of Deane J, that the selected forum should not be seen as an inappropriate forum if it is fairly arguable that the substantive law of the forum is applicable in the determination of the rights and liabilities of the parties. We agree with Gaudron J that the substantive law of the forum is a very significant factor in the exercise of the court's discretion, but the court should not focus upon that factor to the exclusion of all others."

Cases following Oceanic Sun and Voth have considered the the applicability to the dispute of legislation within the jurisdiction of the local court as a relevant factor in determining which is the most appropriate forum: see, for example, Morgan v Union Shipping (New Zealand) [2001] NSWSC 325 per Sperling J at [51] (approved on appeal, Union Shipping New Zealand Ltd v Morgan [2002] NSWCA 124).

23.

In regard to the other matter raised, I am not satisfied that a large proportion of the participants reside out of Australia. The Secretary General and two of the six executive members reside in the country, as does the applicant and his probable witness Mr Kschammer. I appreciate that the Union is a voluntary organisation but the Australian representatives would have to travel to New Zealand which seems to me at least as inconvenient as the President having to travel to Australia. I have no evidence to back up the assertion of inconvenience of having to litigate in Australia. No such inconvenience was indicated by the helpful intervention of Mr Dalcin. The members may well wish the dealings to be governed by the laws of New Zealand. But if the Union is accused of breaching an Australian statute, then Australia would generally be thought of as the most convenient place to determine whether or not that breach took place. This court can provide relief in the form of costs orders for any inconvenience felt by a vindicated Respondent.

I am not satisfied that the respondent has made out a case for me to decline to allow service outside the jurisdiction or to "otherwise order" in accordance with the Federal Magistrates Court Rules. Given that the respondent received notice of these proceedings through its Secretary General who evidenced an ability to instruct solicitors and counsel I can see no reason to require the applicant to go to the extra expense of serving the process in accordance with the New Zealand requirements. I would therefore propose to dismiss the respondent's application and to order nunc pro tunc that the service of proceedings upon Mr John Buckley on 6 December 2006 shall constitute good service of these proceedings pursuant to Rule 6.08 of the Federal Magistrates Court Rules. The respondent to the substantive proceedings shall pay the costs of the applicant of this application.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Raphael FM.