Joinder of Mr Grigor-Scott
66 As indicated above, two issues may arise. The first is whether Mr Grigor-Scott was a respondent to the complaint in the Commission, such that a proceeding lies under s 46PO of the Commission Act. The second is whether, if he was a respondent to the complaint, Mr Jones needs an extension to 27 September 2005 of the time within which to bring the proceeding, which was not commenced until that date.
67 Mr Jones accepts that jurisdictional conditions precedent to the jurisdiction of the Court are contained in s 46PO(1)(a) and s 46PO(1)(b) of the Commission Act. The use of the conditional tense in the introductory words of s 46PO(1) indicates that those conditions precedent must be satisfied before an applicant is empowered to make the application then described in the section. However, while s 46PO uses mandatory terminology in places, it does not use mandatory terminology in respect of the identity of respondents. Mr Jones contends, therefore, that s 46PO contemplates that one or more of the respondents may be identified. He says that the latitude given to an applicant to identify any one or more of the respondents is to be contrasted with the express limitations on the scope of the application to the Court expressed in s 46PO(3).
68 Mr Jones contends that the focus on the subject matter of the complaint, rather than the identification of parties, is consistent with the requirements of a complaint to the Court that are specified in s 46PO(3). Thus, he says, while there is a need for some effective identification of the respondent to the complaint for the purposes of the specific enumerated orders in s 46PO(4), it is not a jurisdictional precondition to the making of an application to the Court under s 46PO of the Act.
69 Section 46PO(1) requires two events to occur before an affected person may bring a proceeding in the Federal Court of Australia or the Federal Magistrates Court alleging unlawful discrimination by one or more of the respondents to the terminated complaint. First, a complaint must have been terminated. Secondly, the President must have given notice under s 46PH(2). If both those events occur, then an affected person, as defined in the Commission Act, may bring a proceeding in the Federal Court of Australia or the Federal Magistrates Court alleging unlawful discrimination against the respondents to the terminated complaint. The section does not authorise an affected person to bring a proceeding against anyone other than a respondent to the terminated complaint. Section 46PO(3) makes it clear that the unlawful discrimination that is alleged in the proceeding must be the same as the unlawful discrimination that was the subject of the terminated complaint or must arise out of the same acts, omissions or practices that were the subject of the terminated complaint. Thus, it is a condition of s 46PO that the application that is authorised by s 46PO be brought against the respondent to the complaint.
70 The primary judge made findings that Mr Grigor-Scott was responsible for publishing on the Website the material about which Mr Jones complained to the Commission. Those findings of the primary judge, to which Mr Jones referred in his written submissions cited above, were not challenged by Mr Grigor-Scott on the hearing of the appeal. Nevertheless, the President did not refer to Mr Grigor-Scott as the respondent.
71 Section 46PO(1) authorises an application to the Federal Court alleging unlawful discrimination by one or more of the respondents to the terminated complaint. The question is whether Mr Grigor-Scott can fairly be described as a respondent to the complaint that was terminated by the President by the notice of 9 February 2005. On a fair reading of the notice and the letter outlining the President's reasons, it cannot be said that Mr Grigor-Scott was ever a respondent to the complaint. It may be that the complaint was never properly constituted. Be that as it may, the President quite clearly did not treat Mr Grigor-Scott as the respondent to the complaint. Rather, the President referred at all times to Bible Believers' Church as the respondent.
72 In his original written submissions on the question of joinder, Mr Jones placed reliance on the decision of the Court in Jones v Toben. That proceeding arose out of provisions of the Discrimination Act that have now been repealed. Section 25ZC relevantly provided that a complainant may commence proceedings in the Federal Court for an order to enforce a determination made under the Discrimination Act. Section 25ZC provided that, if the Court was satisfied that the respondent had engaged in conduct or committed an act that was unlawful under the Discrimination Act, the Court might make such orders as it thinks fit.
73 In Jones v Toben Mr Jones sought to enforce determinations by a commissioner in the following terms:
"1. I find the complaint substantiated.
2. I declare that the respondent Dr Frederick Toben, representing the Adelaide Institute, has engaged in conduct rendered unlawful by section 18C of this Act in the publication of material racially verificatory of Jewish people, on the Adelaide Institute's Internet site…
3. I declare that the respondent Dr Federick Toben, representing the Adelaide Institute, should remove the contents of the Adelaide Institute web site from the World Wide Web and not re-publish the content of that web site in public elsewhere."
74 The significant difference between the determination that was the subject of the proceeding in the Federal Court in that case, on the one hand, and the manner in which the President dealt with Mr Jones' complaint in the present case, on the other hand, is that the President did not at any stage identify Mr Grigor-Scott as the respondent to the complaint lodged by Mr Jones. On the contrary, the President at all times, while acknowledging correspondence from Mr Grigor-Scott, referred to the 'Bible Believers' Church' or the 'Church' as the respondent to the complaint. As indicated above, there is no legal entity known as Bible Believers' Church.
75 In his written submission of 8 February 2008, Mr Jones contends that Mr Grigor-Scott was in fact a respondent to the complaint made to the Commission. He says that the true respondent is to be identified by reference to the subject matter of the complaint. Thus, he says, the complaint was clearly against the person who was responsible for the publication of the material on the Website. Mr Grigor-Scott was identified as being that person and, since there was no legal entity known as Bible Believers' Church, only Mr Grigor-Scott could be considered as the person about whom the complaint was made. Mr Jones contends that the question does not depend on nomenclature used by the Commission at any stage. He says that the Court's function should be to ascertain whether Mr Grigor-Scott's action, in publishing the material, was in fact the subject matter of the complaint to the Commission: if it was, then he was the respondent to the complaint.
76 Mr Jones also pointed to the participation of Mr Grigor-Scott in the conciliation process before the Commission as a further indication that he must be considered to have been the respondent to the complaint. Mr Grigor-Scott attended the conciliation required by the President under s 46PJ of the Commission Act. Mr Grigor-Scott was entitled to be present at such a conciliation only as a respondent to the complaint.
77 It is true, as Mr Jones has argued on the appeal, that Mr Grigor-Scott communicated with the Commission after the complaint was made. However, the complaint was made in respect of the Website. Mr Jones, the Commission and the President treated the complaint as having been made against Bible Believers' Church. No party at any time prior to 21 July 2005 treated the complaint made to the Commission as a complaint against Mr Grigor-Scott. Mr Grigor-Scott was never a respondent to the complaint before the Commission.
78 Since Mr Grigor-Scott was never a respondent to the complaint to the Commission, no proceeding could be brought against him by Mr Jones. That would be enough to dispose of this appeal. However, it is desirable to address the second question also.
79 If Mr Grigor-Scott were a respondent to the complaint made to the Commission, the proceeding under s 46PO(1) needed to be brought against him within 28 days of the date of issue of the notice under s 46PH(2). It was not. The proceeding that was brought against him was brought on 27 September 2005, more than seven months after the President terminated the complaint. Section 46PO(2) does allow for the Court to extend the time within which the application must be made, however, insofar as the application has been brought against Mr Grigor-Scott, no application has ever been made for an extension of time and no order has been made.
80 However, that may not be fatal to the proceeding. Section 46PO of the Commission Act is similar to s 82 of the Trade Practices Act 1974 (Cth). It creates both a right and a remedy. Thus, it is procedural in character, being a condition of the remedy rather than an element of the right. If a proceeding invokes the jurisdiction of the Court under s 86 of the Trade Practices Act, the conduct of the proceeding, including its pleading, is a matter of procedure placed under the control of the procedural rules of the Court. Thus, the Court can allow an amendment to a pleading to raise further contraventions of the Trade Practices Act after the time limited for bringing a proceeding under s 82(2) of the Trade Practices Act had expired (see State of Western Australia v Wardley Australia (1991) 30 FCR 245 at 267-268).
81 However, it is one thing to amend an application to raise further contraventions arising out of the same or similar facts. It is another thing, as in this case, assuming contrary to the above conclusion that Mr Grigor-Scott was a respondent to the complaint to the Commission, to amend to join Mr Grigor-Scott, where the time for bringing a proceeding had already expired and no application was made to extend time to bring the application against him.
82 It is clear, as the affidavit of Mr Jones' solicitor of 21 July 2005, sworn in support of the application to join Mr Grigor-Scott, shows, that Bible Believers' Church, which was named as the respondent in the complaint to the Commission and in the proceeding before the Court, was never capable of being sued. It is not a legal entity and has no legal personality. It may be no more than the name of a website. The proceeding that was commenced on 18 May 2005 named a respondent that does not exist as a legal person and could not be sued. When the order was made on 21 June 2005 extending the time within which to bring the proceeding against Bible Believers' Church, the order again was made in a proceeding in which there was no respondent then capable of being sued. When the order was made on 21 July 2005 giving leave to join Mr Grigor-Scott, the order was made in a proceeding in which there was currently no respondent then capable of being sued. When that order was made, there should have been a further order dismissing the claim against the Bible Believers' Church.
83 The proceeding which was commenced against Mr Grigor-Scott on 27 September 2005 was not brought within the time prescribed by s 46PO(2). No application was ever made to the primary judge to extend time for the bringing of the application against Mr Grigor-Scott. No order should have been made to join him in circumstances where the application had not been brought within the time prescribed in s 46PO(2). It was always open to the applicant to have sought to have time extended but no such application was ever made.
84 Because the section is in the terms that it is, it was necessary for Mr Grigor-Scott to assert that the proceeding was barred by reason of s 46PO(2). This he has done.
85 Mr Jones points out that s 46PO(2) imposes no time limit on the Court's power to extend time. He contends that the order made by the primary judge joining Mr Grigor-Scott constituted an implicit exercise of the power conferred by s 46PO(2).
86 Mr Jones contends that O 6r 11(3) would apply, such that the order joining Mr Grigor-Scott and allowing the amendment of the application had the effect of making him a party from the date of the commencement of the proceeding. Accordingly, he says, no further order under s 46PO(2) is necessary.
87 If such an order is necessary, Mr Jones contends that it could be made now by the Full Court, nunc pro tunc, extending time for joinder of Mr Grigor-Scott to the date of the amended application. He says that there would be no prejudice to Mr Grigor-Scott, given that he participated in the proceeding before the primary judge at all stages on his own account. He says that the power extending time simply flows from the terms of s 46PO(2), which, he says, confer sufficiently broad discretion on the Court to make an order extending time as it sees fit to do justice in achieving the purposes of the Commission Act.
88 Mr Jones contends that, in any event, there is nothing to suggest that the power conferred by s 46PO(2) may be exercised on only one occasion. The power applies to the application to the Court: if the amended application was not a new application, O 6 r 11(3) would operate to make the amended proceeding good and no further order under s 46PO(2) would be needed: if, on the other hand, the amended application constituted a fresh application under s 46PO(1), there is no reason why the power conferred by s 46PO(2) could not be exercised in relation to that application. Mr Jones emphasises that s 46PR of the Commission Act manifests a statutory intention that the Court not be bound by technicalities or legal forms in discharging its functions under the Commission Act.
89 The proceeding has never been competent either against Bible Believers' Church or Mr Grigor-Scott. In those circumstances, the ground of appeal for which leave was given at the hearing of the appeal against the order made by the primary judge joining Mr Grigor-Scott should be allowed. The proceeding must be dismissed as incompetent because Bible Believers' Church is not and never has been capable of being sued. There was no basis for the joinder of Mr Grigor-Scott as a respondent in the proceeding in the Federal Court. The order ought not to have been made and, accordingly, should be set aside.