the Application was filed on 27 January 2010 alleging unlawful racial discrimination and vilification by the respondent;
2. on 5 March 2010 the Court ordered the applicant to file and serve a Statement of Claim by 9 April 2010, the respondent to file and serve a Defence by 7 May 2010, and for the matter to be referred for mediation before a Registrar of the Court before a further directions hearing on 28 June 2010;
[2]
on 9 April 2010 the Court made orders by consent amending the name of the applicant and extending time for the filing of the Statement of Claim to 23 April 2010;
[3]
on 23 April 2010 the applicant filed a Statement of Claim;
2. at a directions hearing, brought on at the request of the respondent, on 7 May 2010 the Court ordered the applicant to file and serve a Statement of Claim "in proper form" by 7 June 2010;
3. on 31 May 2010 the applicant filed a Statement of Claim; and
4. on 16 June 2010 the respondent filed this Application in a Case, in respect of which certain orders were made on 2 July 2010, including listing the Application in a Case for hearing on 5 August 2010.
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.
a court must be satisfied that the applicant has no reasonable prospect of success;
2. the court need not be satisfied that the proceeding is hopeless or bound to fail;
[10]
the legislature's intention in introducing the provisions concerning summary dismissal was to lower the bar for obtaining summary judgment (including summary dismissal) below the level that had been fixed by authorities like Dey v Victorian Railways Commissioners[9] and General Steel Industries Inc v Commissioner for Railways (NSW) & Ors[10] which required that the allegations be quite clearly so untenable that they could not possibly succeed;
[11]
there was not an intention on the part of the legislature to remove the bar completely;
2. the mere presence of a trifling, implausible, tenuous or tangentially relevant factual controversy is not a bar to the exercise of the summary dismissal power; and
3. what is required is a prediction of the outcome of a trial on the
[12]
merits but not an actual adjudication of those merits.[11]
[13]
The Federal Court has also observed as follows in relation to the principles applicable on an application for summary dismissal:
6.Success under s 31A [of the FC Act] does not require a demonstration that the case is hopeless or bound to fail. The following principles are of general application to an application under s 31A:
(a) the Court must be very cautious not to do a party an injustice by summarily dismissing proceedings;
(b) the Court ought not dismiss a claim based on a predictive assessment of prospects, where it is possible that if the claim went to trial, it may succeed;
(c) in a case where evidence can give colour and content to allegations, and where questions of fact and degree are important, the Court should be more reluctant to dismiss a proceeding on the face of a pleading;
(d) it is not Parliament's intention to require the Court to engage in lengthy and elaborate trials on an interlocutory basis for the purposes of determining whether or not a proceeding has no reasonable prospects of success. It may be necessary for the opposing party to provide no more than an outline of evidence, sufficient to show that there is a genuine dispute, to prevent the summary application becoming a trial;
(e) if there is a real issue of fact or law to be decided, and the rights of the parties depend upon it, it is obviously appropriate that the matter goes to trial. It cannot be said that where there is a real factual dispute and that factual dispute must be resolved to determine whether the claim succeeds that there is 'no reasonable prospect of success';
(g) it ought not be used to shut out proceedings where, on a proposition of law, there may be room for doubt. On questions of law, an inquiry as to their merit should not be for the purpose of resolving them and also not simply to determine whether the argument is hopeless, but in order to decide if it is sufficiently strong to warrant a trial;
(h) evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects;
(i) in determining if there are real issues of fact in issue so as to preclude summary judgment the courts must draw all reasonable inferences in favour of the non-moving party.[12]
In Oorloff & Anor v Lee & Anor[13] this Court observed that in unlawful discrimination cases the power to summarily dismiss ought be exercised with exceptional caution, and be sparingly invoked, especially where the applicant is unrepresented, and that there was an onus in a summary dismissal application on the respondent to establish to a high measure of satisfaction that the proceedings were of a character that they ought to be dismissed. Further, the Court observed that in summary dismissal applications the Court was not limited to the arguments put before it, but may look at all of the material to assess independently whether an arguable case based on the material could be made out.[14]
[14]
The Federal Court has observed that:
21.Section 31A [of the FC Act] is not a vehicle for simply striking out parts of pleadings that are deficient. Section 31A allows for "judgment" or nothing. Alternative remedies with respect to deficient pleadings must be found in the rules of Court. In this connection I respectfully disagree with the approach taken by Heerey J in Duncan v Lipscombe Child Care Services Inc [2006] FCA 458 in which his Honour said (at [6]):
Plainly s 31A [of the FC Act] was introduced to establish a lower standard for strikeouts (either of claims or defences) than that previously laid down by the High Court's decisions in Dey v Victorian Railways Commissioners [1949] HCA 1; (1948) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 130, namely that the allegations are "so clearly untenable that [they] cannot possibly succeed".[15]
This Court has previously agreed with the approach taken in Fortron, and adopted those views as applicable to summary dismissal applications under r.13.10(a) of the FMC Rules.[16]
An issue for determination in this Application in a Case is therefore whether the proceeding must be dismissed as a whole, as sought by the respondent, or whether the Court has the power to strike-out the parts of the Second Statement of Claim that have no reasonable prospects of success.
The respondent has not specifically applied in the alternative to strike out parts of the Second Statement of Claim. However, the respondent submitted in argument that various allegations, framed by reference to specific paragraphs of the Second Statement of Claim, ought to be dismissed,[17] thereby effectively applying for those paragraphs to be struck out. Alternatively, the Court may consider whether it can strike out paragraphs of the Second Statement of Claim of its own volition.[18]
In Buckingham v KSN Engineering Pty Ltd[19] this Court discussed the approach it takes in relation to strike out applications, as follows:
15. In considering the approach to be adopted to the strike out application it is necessary to deal with the relevant procedural rules.
16. In considering the relevant procedural rules it is appropriate to note that this Court was not originally a court of pleadings. In Rana v University of South Australia the Federal Court observed that:
b) parties are not obliged to tender all their evidence when the Application and Response is filed; and
c) the Court should be cautious about summarily dismissing a proceeding.
17. In some respects, the role of this Court has changed since the judgment in Rana. The FMC Rules were amended in 2007 to provide that applications might be commenced by the filing of a Statement of Claim or Points of Claim to which a Defence or Points of Defence might be filed in response, and in neither case was there a requirement for the filing of an affidavit ...
18. Because the FMCA Rules are silent in respect of striking out pleadings the Federal Court Rules (Cth) can apply so far as is necessary, because of the insufficiency of the FMCA Rules.
19. ... However, a pleading which discloses no reasonable cause of action or which has a tendency to cause prejudice, embarrassment or delay, may be struck out at any stage of the proceedings, either in whole or in part.
20. The Court recognises that in determining to strike out all or part of a pleading it must exercise a discretion, and that that discretion is one to be exercised with caution having regard to the objects of the Federal Magistrates Act 1999 (Cth) and FMC Rules, and modern case management techniques.[20]
This Court's approach to strike-out applications was discussed in O'Brien v Michel's Patisserie (WA) Pty Ltd[21] as follows:
7. Order 11 rule 16 of the Federal Court Rules relevantly provides that:
16Embarrassment etc
Where a pleading:
(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading;
(b) has a tendency to cause prejudice, embarrassment or delay in the proceeding; or
(c) is otherwise an abuse of the process of the Court,
the Court may at any stage of the proceeding order that the whole or any part of the pleading be struck out.
8. In Guglielman v Trescowthick the Federal Court said:
"Whether a pleading should be struck out depends upon whether, in the particular circumstances, it is necessary to do so in the interests of justice. If the object of pleadings is sufficiently met, the striking out of the pleading will be unnecessary."
9. The modern approach to litigation is to discourage interlocutory applications of the type made here because they are extremely time consuming and costly.
10. A proper pleading must put a respondent on notice of the case to be met and should sufficiently define the issues for decision so that the preparation of the case and hearing can be controlled.
11. The statement of claim must plead the necessary facts for the purpose of formulating a complete cause of action. While it is not permissible to merely state a conclusion drawn from facts not set out in the statement of claim, consideration should be given to whether the conclusionary pleading still achieves the objective of pleadings. A pleading should be allowed to stand if it would be open to the applicant upon the pleadings to prove facts at the trial which would constitute a cause of action.
12. Embarrassment in the context of O.11 r.16 of the Federal Court Rules carries the connotation of a pleading:
a) which is susceptible to various meanings; or
b) which contains inconsistent allegations; or
c) in which alternatives are confusingly intermixed; or
d) in which irrelevant allegations are made tending to increase expense.
13. The Court may protect its processes from abuse by summarily disposing of an action as frivolous or vexatious, but only if it is so obviously untenable that it cannot possibly succeed.
14. The general rules concerning pleadings need to be considered in the context of the FM Act which provides that the objects of the Court are:
In a matter such as this where the Application in a Case for summary dismissal of the Application has effectively been argued on an alternative basis, namely, the striking out of various paragraphs of the Second Statement of Claim, the Court can consider whether to strike out paragraphs of the Second Statement of Claim under O.11 r.16 of the FC Rules.
[15]
The Second Statement of Claim is not a concise or easily understandable document. The respondent has acted as a model litigant ought to and in its Outline of Submissions has distilled the essence of the Second Statement of Claim concisely and comprehensively, so far as that is possible. The Court will therefore adopt the respondent's very helpful outline of the allegations in the Second Statement of Claim for the purposes of the Court's analysis of the respondent's Application in a Case.
[16]
The applicant claims that the respondent contravened s.9 of the RD Act in a meeting between the parties that took place on 30 October 2007,[23] in the following manner:
[17]
the Meeting was held 10 months after the applicant's application for Licence Renewal was lodged,[24] but issues relating to corporate governance and the applicant's Constitution were raised for the first time at the Meeting;
2. the applicant was only given one week's notice of the Meeting;
[18]
the applicant was not provided with an agenda for the Meeting;
[19]
the applicant was told that the purpose of the Meeting was to expedite the Licence Renewal and that the Meeting was to be informal, but in fact the respondent's legal counsel attended the Meeting and issues relating to the applicant's corporate governance were addressed;
2. the attendees who attended on behalf of the applicant felt "ambushed"; and
3. Mr Gavin Oakes of the respondent displayed rude, insulting and inappropriate behaviour towards the attendees who formed part of an ethnic group, particularly those for whom English was not a first language, and instead addressed himself towards an attendee whose grasp of English was better. Mr Oakes continually stated that he was in a hurry and ignored the attendees who did not speak English as a first language, but who were in a best position to answer his questions.[25]
Section 9 of the RD Act relevantly provides as follows:
(1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.
(1A) ...
(2) A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention.
Article 5 of the International Convention on the Elimination of all forms of Racial Discrimination,[26] relevantly provides as follows:
In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:
(a) The right to equal treatment before the tribunals and all other organs administering justice;
[20]
(c) Political rights, in particular the rights to participate in elections - to vote and to stand for election - on the basis of universal and equal suffrage, to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service;
[21]
(d) Other civil rights, in particular:
(iii) The right to nationality;
(vii) The right to freedom of thought, conscience and religion;
(viii) The right to freedom of opinion and expression;
(ix) The right to freedom of peaceful assembly and association;
(e) Economic, social and cultural rights, in particular:
[22]
(vi) The right to equal participation in cultural activities;
[23]
In order to establish a contravention of s.9(1) of the RD Act, the applicant must establish that:
[24]
the respondent did an act;
2. the act involved a distinction, exclusion, restriction or preference;
[25]
the act was based on race, colour, descent or national or ethnic origin; and
[26]
the act had the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.
The respondent submits that merely to direct communications towards a person in a group who speaks the best English in that group cannot be a contravention of the RD Act. There must be a connection between the impugned act and the prohibited ground as opposed to a mere belief that there has been a discriminatory course of conduct.
Setting aside for the moment the alleged conduct of Mr Gavin Oakes at the meeting on 30 October 2007, none of the other matters raised can be said to raise an act based on race, colour, descent or national or ethnic origin, nor can it be said that it was done with the purpose or had the effect of nullifying or impairing rights, in the relevant sense. They are administrative matters relating to the conduct of the meeting, or matters unrelated to any issue of racial discrimination or vilification.
In relation to the alleged conduct of Mr Oakes the Court considers that there is an act, and assuming, for present purposes, that vicarious liability in relation to Mr Oakes' act attaches to the respondent,[27] that act involved a distinction or exclusion of those persons present at the meeting and for whom English was a second language. English was a second language for those persons because of their national or ethnic origin as Portuguese persons and Portuguese speakers. It is arguable that such an act had the effect of nullifying or impairing a relevant right, and in particular, the right to have equal access to public service in Article 5(c) of the Convention and the right to equal participation in cultural activities in Article 5(e)(vi) of the Convention, because the ultimate purpose of the broadcasting licence is to allow the applicant to broadcast in relation to, amongst other things, cultural activities for persons of Portuguese nationality, origin and descent. These matters are sufficiently arguable to give rise to an arguable contravention of s.9(1) of the RD Act, and for the claim with respect to Mr Oakes' conduct not to be struck out of the Second Statement of Claim.
Paragraph 1 will be struck out except for the following words, which will be retained to maintain necessary factual context in the Second Statement of Claim:
(i) "The application for renewal was first lodged in January 2007. However, issues concerning our constitution and corporate governance were only raised at the meeting held in Perth on 30/10/07";
(ii) "Mr. Gavin Oakes (the ACMA representative) arrived with ACMA's legal counsel from Perth, Ms C. Scott."; and
(iii) "The meeting was held at the Radio Station 91.3 FM in Perth (Jandakot). Representatives from the radio were Mr. Manuel Moleirinho (Chairman), Mrs. Elsa Moleirinho (Secretary) of the PCWC and also Mr. Alex Moleirinho as an ordinary committee member and all of whom were volunteers for the radio station. Alex Moleirinho who is Australian born was helping us for the renewal of the radio license application."
Paragraph 2 of the Second Statement of Claim will not be struck out.
[27]
The second allegation in paragraph 3 of the Second Statement of Claim is that the respondent did not afford the applicant natural justice or procedural fairness in relation to the Licence Renewal.
The respondent says that the second allegation:
does not allege unlawful discrimination, but raises administrative law issues;
falls outside of the jurisdiction of the Court by reason of s.46PO(1) and (3) of the AHRC Act which provide as follows:
(1) If:
(a) a complaint has been terminated by the President under section 46PE or 46PH; and
(b) the President has given a notice to any person under subsection 46PH(2) in relation to the termination;
any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Magistrates Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.
...
(3) The unlawful discrimination alleged in the application:
(a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or
(b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.
The respondent says that because the second allegation does not raise any allegation of unlawful discrimination and was not a matter raised by the terminated complaint, it should be summarily dismissed. The respondent also submitted that the applicant had previously made an application in the Federal Court for judicial review of the respondent's Licence Renewal decision, which the applicant later withdrew. There was however no evidence of the Federal Court application before the Court.
There was an allegation dealt with by the AHRC that the respondent did not afford the applicant natural justice and procedural fairness. The respondent's contention that this issue was not raised with the AHRC is not correct. No claim in the Court's associated jurisdiction was raised by the applicant as a result of the facts alleged in this allegation.
Paragraph 3 of the Second Statement of Claim which contains the second allegation is plainly not an allegation of unlawful discrimination, but a complaint that in considering the Licence Renewal the respondent failed to afford the applicant natural justice or procedural fairness. The second allegation does not relate to any recognised head of unlawful discrimination under the RD Act.
It follows that paragraph 3 of the Second Statement of Claim ought to be struck out.
[28]
The third allegation relates to paragraph 4 of the Second Statement of Claim which provides as follows:
All the problems mentioned by ACMA on the final report were due to our Lack of understanding of what was required by ACMA standards. Unfortunately English is not our first language and these problems were caused by linguistic and comprehension difficulties of the English language. At no time did AMCA make any attempt to assist us as an ethnic minority association to comply with their standards.
AMCA refused to issue an undertaking in order for us to rectify the linguistic difficulties in understanding the English language and the concept of corporate governance and compliance, because on their understanding, this would be a waste of time with the ethnic group such as us. This is a contravention to the Convention Article 5 Section (a).
Article 5(a) of the Convention is set out above.[28]
Section 3(1) of the AHRC Act defines "unlawful discrimination" as follows:
Unlawful discrimination means any acts, omissions or practices that are unlawful under:
The respondent argues that the Convention is not an appropriate instrument under which a plea of unlawful discrimination can be made because of the definition of "unlawful discrimination" in s.3(1) of the AHRC Act.
The respondent therefore says that the third allegation has no reasonable prospects of success as it does not allege "unlawful discrimination" as defined in the RD Act.
The first two sentences of the first paragraph of paragraph 4 of the Second Statement of Claim are statements of alleged material facts.
A contravention of s.9(1) of the RD Act can be made out where the human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention.[29] Therefore, to allege a contravention of Article 5(a) of the Convention may be to allege unlawful discrimination under s.9(1) of the RD Act. Paragraph 4 of the Second Statement of Claim ought not therefore be struck out on the basis that it does not allege unlawful discrimination as defined in the RD Act.
No argument was directed as to whether the alleged contravention of Article 5(a) of the Convention could be made out on the basis that the right to equal treatment there concerned was a right "before ... tribunals and all other organs administering justice", and that the respondent was not a tribunal or other organ administering justice. The respondent may however be within the broad scope of "tribunals and all other organs administering justice" because it has as one of its functions the power:
"To conduct investigations or hearings relating to the allocating of licences for community radio and community television services."[30]
Even if the alleged contravention of Article 5(a) of the Convention were not sustainable on the basis that the respondent is not a tribunal or other organ administering justice, the facts on which the allegation rest might nevertheless fall within a broad view of Article 5(c) in relation to the political right of equal access to public service, or Article 5(e)(vi), being the right to equal participation in cultural activities.
As the basis on which the respondent sought to strike out the third allegation in relation to paragraph 4 of the Second Statement of Claim has not been made out, and as the other matters raised were not dealt with by the parties in argument, it is not appropriate to strike out paragraph 4 of the Second Statement of Claim.
[29]
The fourth allegation relates to the first two sentences of paragraph 5 of the Second Statement of Claim, which provide as follows:
Once again because of our ethnic background and not having the same governance and compliance capacity as other associations with better English comprehension, we have been penalized by ACMA.
The allegation is that on 24 January 2008 the respondent contravened s.13(a) and (b) of the RD Act by penalising the applicant for its ethnic background for not having the same governance and compliance capacity as other associations with better English comprehension.
Section 13 of the RD Act provides as follows:
It is unlawful for a person who supplies goods or services to the public or to any section of the public:
(a) to refuse or fail on demand to supply those goods or services to another person; or
(b) to refuse or fail on demand to supply those goods or services to another person except on less favourable terms or conditions than those upon or subject to which he or she would otherwise supply those goods or services;
by reason of the race, colour or national or ethnic origin of that other person or of any relative or associate of that other person.
The respondent submits that:
[30]
it can only be guessed as to what "goods or services" the applicant alleges that the respondent has refused to supply to it;
2. it is not clear by what reason the respondent is said to have refused to supply such goods or services, other than the applicant's "ethnic background" and for not "having the same governance and compliance capacity as other associations with better English comprehension". The respondent says that there is an indication at paragraph 4 of the Second Statement of Claim that the respondent should have assisted the applicant to comply with the radio broadcasting standards or offered to assist the applicant to "rectify the linguistic difficulties in understanding the English language and the concept of corporate governance and compliance";
[31]
if the applicant is referring to the services so described, then those are not services that the respondent provides to the public, or a section of the public, so as to trigger the potential application of s.13 of the RD Act; and
[32]
further, and in any event, the respondent says that the fourth allegation is so vague and general, that it is impossible for the respondent to comprehend the allegation made against it.
It is apparent that this is not a case about the provision of "goods", but rather "services", if anything. A corporation, or an incorporated association, can be the subject of a refusal or failure on demand to supply services.[31]
The question arises here as to whether there has been a refusal to supply "services", and, if so, what those "services" are.
Dealing first with the question of what the "services" are, the RD Act defines "services" as:
... includes services consisting of the provision of facilities by way of banking or insurance or of facilities for grants, loans, credit or finance.[32]
The definition is inclusive not exclusive. Other federal discrimination legislation enacted later than the RD Act contains definitions of services which specifically include - in inclusive and not exclusive definitions of "services" - services provided by a government or a government authority.[33] The inclusion of reference to government services in later enacted federal discrimination legislation does not preclude government services from being included in the inclusive definition of "services" in the RD Act.[34] That the RD Act extends to government services can be implied because:
the RD Act "binds the Crown in right of the Commonwealth";[35] and
"unlawful discrimination" for the purposes of s.3(1) of the AHRC Act means an act, omission or practice which is unlawful under Part II or IIA of the RD Act, which includes "any right of a kind referred to in Article 5 of the Convention".[36] Article 5 of the Convention specifically refers to rights to equal treatment before tribunals and other organs administering justice, which arguably might include the respondent's conduct in relation to, and determination of, the Licence Renewal. Article 5 also allows for "equal access to public service" which, on a broad interpretation of the applicant's argument, might arguably have been refused by the conduct of Mr Oakes on behalf of the respondent in relation to the conduct the subject of the first and eighth allegations. It appears to the Court that it is likely that it is these matters which are referred to as the refusal of "services" by the respondent, but in the context of how other associations (such as the Youth Media Association) have had their licence renewals dealt with, on what the applicant alleges are more favourable terms than those afforded to the applicant. This is a matter which might be further elaborated upon or explained by evidence when the time comes for the filing of hearing affidavits.[37]
The respondent argued that it was not engaged in providing services, but that it was a "regulator". The difficulties in distinguishing between the concepts of service, enforcement and regulation are evident from the analysis of the English and Canadian cases in IW concerning police, taxation and migration,[38] and become increasingly difficult if the matter under challenge extends to administrative decision-making involving discretionary considerations.[39] In this case the issue of whether or not the matter involves a "service", and if so, whether it has been provided or refused is a disputed one which may require the resolution of factual issues, and is therefore best left for determination at hearing.[40]
In the above circumstances the Court, albeit with some hesitation, is not prepared to strike out the first two sentences of paragraph 5 of the Second Statement of Claim.
[33]
The fifth allegation appears to be an allegation contained in the final two sentences of paragraph 5 of the Second Statement of Claim that the respondent contravened part IIA, s.18C of the RD Act in page 7 of the respondent's final report, which it is alleged was based on assumptions, vilification and hatred.
Section 18C of the RD Act provides as follows:
(1) It is unlawful for a person to do an act, otherwise than in private, if:
(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.
(2) For the purposes of subsection (1), an act is taken not to be done in private if it:
(a) causes words, sounds, images or writing to be communicated to the public; or
(b) is done in a public place; or
(c) is done in the sight or hearing of people who are in a public place.
(3) In this section:
public placeincludes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.
The respondent contends that the context provided by s.18C of the RD Act is a legislative intent to render unlawful only acts which fall squarely within the terms of the section, and not to reach to "mere slights" in the sense of acts which, for example, are reasonably likely to cause technical, but not real, offence or insult.[41]
The respondent also contends that it is unclear which "final report" the applicant is referring to, but if it is referring to the respondent's reasons for decision[42] in relation to the Licence Renewal dated 24 January 2008, then it is unclear as to what part of page 7 of the Licence Renewal Reasons reference is being made to. Further, and in any event, the respondent says that this allegation is so vague and general that it is not possible for the respondent to comprehend the allegation made against it and that it discloses no reasonable cause of action.
Page 7 of the Licence Renewal Reasons is part of an assessment by the respondent as to the extent to which the applicant's community broadcasting service meets the existing perceived future needs of the community within the licence area. That assessment starts on page 6 of the Licence Renewal Reasons, and in full the assessment is as follows:
Assessment: the extent to which the service meets the existing and perceived future needs of the community within the licence area
ACMA notes that the methods used by PCRC[43] to identify the needs of the community it serves are somewhat limited. However, in view of the relatively small number of people in the community of the licence area, these would not seem to be inappropriate.
At present PCRC provides programming for the Portuguese communities from Angola, Brazil, Madeira Island and Portugal, as well as a range of general programming in Portuguese. Some communities from Fremantle's Portuguese speaking population appear not to be currently providing programs on PCRC.
In it submission of 6 January 2008 in response to ACMA's preliminary assessment of its licence renewal application, PCRC said:
As far as PCWC is aware, during the term of the Licence all registered associations or clubs that could represent the Portuguese community in the Fremantle area have been represented by or produced a program on PCWC's radio station. The only communities which have not been represented (such as those people from Macau, Azores and Mozambique) do not have an association or club to represent them.
This seems to imply that to present a program on Cockburn Sound FM 91.3 Radio a person must be a member of an association or club that represents the community to which they belong. If this is the case, it would raise some concerns for ACMA about the licensee's ability to adequately meet the needs of its community as a whole. In ACMA's view, individual members of the community that a community broadcaster has been licensed to serve should be able to present a program if they wish to do so (assuming that practical considerations, for example the availability of timeslots and appropriate training, can be dealt with).
In the case of PCRC, there would seem to be no reason why individuals should not be able to provide programming on the service. The population of the different communities of Portuguese speakers in the licence area is very small, so it seems unlikely that there will be great demands placed on the service for timeslots. Further, it would appear that there is plenty of opportunity for additional programs to be provided on PCRC, given existing satellite programming and the programming provided by the Spanish and Greek communities which are not part of its community of interest.
PCRC has not provided sufficient evidence to persuade ACMA to make an unqualified finding about the extent to which individuals from the Portuguese speaking community are able to fully participate in the service.
The service assessment contained in the above extract is not, in the Court's view, an act which is "reasonably likely, in all the circumstances to offend, insult, humiliate or intimidate" a member or group of members of the applicant. Whilst it might not be flattering to them, particularly in relation to the view taken concerning corporate governance and management practices, those are matters which are conceded by the applicant to be at less than an appropriate standard.[45] In any event, and perhaps more importantly, the service assessment is not an act done because of the race, national or ethnic origin of the persons comprising the applicant, or which exhibits racially motivated vilification or hatred, as alleged by the applicant. It is no more than the respondent, in its capacity as a community broadcasting regulator, making findings based on the existing provision of services by the applicant. Whilst the provision of those services is directed at persons of Portuguese national or ethnic origin, the respondent's assessment of them, at least at pages 6-7 of the Licence Renewal Reasons, is not an act based on race, or national or ethnic origins and is not racial vilification or hatred.
In the circumstances, the final two sentences of paragraph 5 of the Second Statement of Claim will be struck out.
[34]
The sixth allegation appears to relate to paragraph 6 of the Second Statement of Claim which alleges that the respondent contravened the Convention Part I Article 1 4. by refusing to take any special measures when dealing with the applicant, "as an ethnic group".
Article 1 4. of the Convention provides that the parties to the Convention have agreed as follows:
4. Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.
For the same reasons that appear in relation to the third allegation the respondent says that the sixth allegation cannot be made out as the Convention is not an appropriate instrument under which a plea of unlawful discrimination can be made. For the same reasons that appear in relation to the third allegation the respondent's contention concerning the sixth allegation must, in that regard, be rejected. That does not however mean that paragraph 6 of the Second Statement of Claim ought not be struck out. All that Article 1 4. of the Convention does is provide that the parties to the Convention have agreed that special measures may be taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring that protection, and that that is not racial discrimination provided those measures:
do not lead to separate rights for different racial groups; and
are not continued after the objectives for which they were taken have been achieved.
Whether such special measures are taken is not a matter for the respondent, but for the Federal Parliament. From time to time the Federal Parliament has enacted special measures, including s.8(2) of the RD Act which precludes instruments conferring charitable benefits on the basis of particular race, colour or national or ethnic origin from being considered racially discriminatory.
The special measures provisions, where given effect to by legislation, act as a shield to protect what would otherwise be unlawful discrimination, rather than a sword enabling an allegation of unlawful discrimination to be made. Paragraph 6 of the Second Statement of Claim cannot therefore succeed as it is misconceived, and must be struck out.
[35]
The seventh allegation is a bare allegation in paragraph 7 of the Second Statement of Claim that the respondent failed to comply with the Constitution, s.9 of the RD Act and Article 5 of the Convention, which reflect Parliament's desire to make special laws for any race when deemed necessary.
The applicant repeats its submissions in relation to the third allegation as to the Convention not being an appropriate instrument under which a plea of unlawful discrimination can be made. For the same reasons as are set out above in relation to the third allegation this contention by the respondent cannot succeed.
In other respects, the respondent says that the seventh allegation is incomprehensible, and does not disclose any reasonable cause of action.
The applicant proceeds under a misapprehension with respect to the seventh allegation when it alleges that ACMA has failed to comply with what the applicant calls the "special laws" provision of the Constitution, but which is commonly known as the "race power". That provision is s.51(xxvi) of the Constitution which provides the Federal Parliament with the power to make laws with respect to:
"The people of any race for whom it is deemed necessary to make special laws."
Section 9 of the RD Act is not a law supported by the race power. In Koowarta v Bjelke-Peterson & Ors[46] the High Court held that a law, such as s.9 of the RD Act, which applied equally to the people of all races, was not a special law for the people of any particular race.[47] In Koowarta one member of the High Court observed that:
"To be within power under par. (xxvi) a law must be special in the sense that it is the particular race, or races, for whom it legislates that gives rise to the occasion for its enactment."[48]
Section 9 of the RD Act is not a law which identifies people of a particular race to whom it applies or with whom it has a specific connection and is not one which has a differential operation in respect of those peoples. Rather, it is a law which applies equally to the people of all races, and is thus not a "special law" under the race power in s.51(xxvi) of the Constitution.
In the circumstances, paragraph 7 of the Second Statement of Claim must be struck out as it discloses no reasonable cause of action.
[36]
The applicant alleges in paragraph 8 (and the associated paragraph 9) of the Second Statement of Claim that in a telephone conversation on speaker phone, with other people listening, that took place on 24 January 2008, the respondent, through Mr Oakes, breached s.18C of the RD Act and Articles 5(e)(v) and (vi) and 2(1)(a) of the Convention, by saying the following:
I don't care where you people came from. We at the ACMA are short of staff and we don't have time for this. If you don't understand the English system don't get involved.
Article 5 of the Convention is set out above.[49] Article 2(1)(a) of the Convention provides as follows:
1. States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end:
(a) Each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation;
The respondent:
[37]
denies that Mr Oakes made the alleged comments;
2. says that those comments were made in the course of a private telephone conversation; and
[38]
says that those words could not be said to have a nexus to the national or ethnic origin of the applicant.
Drawing a "reasonable inference" in favour of the applicant[50] that Mr Oakes made these comments (and it is clear that there is a factual controversy to be resolved at hearing as to whether he did so), there is also a factual controversy to be resolved as to whether or not the comments were made "otherwise than in private" as alleged by the respondent because, on the applicant's case, the statement was made over a speaker phone to a group of people at the applicant's premises.[51]
As to whether the words alleged to have been used by Mr Oakes have a nexus to the national or ethnic origin of the applicant, it is arguable that the use of the words "you people" carries with it a pejorative racial connotation. When, in 1992, the United States Presidential candidate Ross Perot used the phrase "your people" in addressing a National Association for the Advancement of Coloured Peoples audience,[52] a NAACP official observed that:
"When he said 'you people' or 'your people,' it was like waving a red flag in front of a bull," he said. "It's something white folks have used when they don't want to call you nigger, but they don't want to treat you like an equal."[53]
More recently, the Supreme Court of the United States has said that although the use of the word "boy" to an African-American worker by a manager of a poultry plant:
" ... will not always be evidence of racial animus, it does not follow that the term, standing alone, is always benign. The speaker's meaning may depend on various factors including context, inflection, tone of voice, local custom and historical usage."[54]
Thus to allegedly use the phrase "you people" as part of the sentence "I don't care where you people came from" can clearly be argued to have a nexus to the national or ethnic origin of the applicant, or the applicant's members. The nexus is reinforced by the alleged statement that "[i]f you don't understand the English system don't get involved." On the face of it, the alleged comments are made because of the national or ethnic origin of the person or persons to whom they were directed, being a member or the members, of the applicant, and is an act which it is arguable might offend, insult or humiliate a member of the applicant.[55] The words used suggest that race or national or ethnic origin was a factor in the use of those words.[56]
Context is important when considering whether a particular act breaches s.18C of the RD Act. In this case, the fact that the statement is made by a government official charged with investigating and making recommendations in relation to the community broadcasting licence of a voluntary association whose members are Portuguese, does not assist the respondent's argument that the words do not have a nexus to the race or national or ethnic origins of the applicant. These were not words said as part of a jocular exchange between friends in the public bar of a hotel, or as part of a vulgar and in poor taste form of entertainment.[57] In this case, the government official, Mr Oakes, was charged with the performance of serious functions on behalf of the respondent, and it was in that context that the statement was made to a group of people of Portuguese ethnicity concerned about the future of the applicant's community broadcasting licence. In that context, and having regard to the possible meaning of the words as explained above, it is arguable that the words have a nexus to the race, or national or ethnic origin, of the applicant, and its members, and were arguably offensive, insulting, humiliating or intimidating to the people, members of the applicant, to whom they were communicated telephonically.
In the circumstance, paragraphs 8 and 9 of the Second Statement of Claim will not be struck out.
[39]
The ninth allegation in paragraph 10 of the Second Statement of Claim is that the respondent contravened s.18C of the RD Act by making a false and serious statement by allegedly saying that two of the applicant's representatives, specifically Mr and Mrs Moleirinho, were the founders of the applicant.
The respondent submits that it is not clear how a reference to Mr and Mrs Moleirinho being the founders of the applicant, even if mistaken, could constitute a breach of s.18C of the RD Act. The respondent repeats its submissions made in respect of the application of s.18C of the RD Act, set out in relation to the eighth allegation.
There is nothing in the making of this statement, whether correct or mistaken, which, in the Court's view, can constitute a contravention of s.18C of the RD Act. The statement is not one which is "reasonably likely" to offend, insult, humiliate or intimidate Mr or Mrs Moleirinho. If anything, the contrary ought to be the case as Mr and Mrs Moleirinho's long standing association with and involvement in the applicant is, on the evidence, an obvious and understandable source of pride for them.
In the circumstances, paragraph 10 of the Second Statement of Claim will be struck out.
[40]
The tenth allegation is that the respondent contravened s.18B of the RD Act in respect of all of the matters raised in the claim. It is put thus in paragraph 11 of the Second Statement of Claim:
Regarding the Section (18B) of the Racial Discrimination Act 1975, everything mentioned on this claim is a very good reason to make an Act.
Section 18B of the RD Act provides as follows:
If:
(a) an act is done for 2 or more reasons; and
(b) one of the reasons is the race, colour or national or ethnic origin of a person (whether or not it is the dominant reason or a substantial reason for doing the act);
then, for the purposes of this Part, the act is taken to be done because of the person's race, colour or national or ethnic origin.
The respondent says that in light of its response to other allegations this allegation does not disclose any reasonable cause of action. The respondent also says that, assuming that it was meant to refer to s.18B of the RD Act, as opposed to s.18C of the RD Act, it is unclear as to how s.18B is meant to apply, and therefore impossible for the respondent to understand the allegation made against it, and that therefore the Court should be satisfied that the applicant has no reasonable prospect of successfully prosecuting this allegation.
Obviously, s.18B of the RD Act means what it says: if, on the evidence, it is established that a particular act is done for two or more reasons, and one of those reasons is a discriminatory reason, whether or not it is a dominant or substantial reason, then the act is taken to be done because of the discriminatory reason. In this case it is already plain that the various acts complained about by the applicant will be said to have been carried out in compliance with the respondent's statutory obligations under the BS Act or the ACMA Act. However, notwithstanding that, if they are found to be for a discriminatory reason, the BS Act or ACMA Act reason would not, even if it is the dominant reason for the act, prevent a finding of unlawful discrimination if the act were also to be found to have been done for a discriminatory reason. Notwithstanding this, s.18B of the RD Act operates as a matter of law upon the relevant facts as they are ultimately founded by this Court, and, in those circumstances, it is not strictly necessary for it to be pleaded. In those circumstances, paragraph 11 of the Second Statement of Claim will be struck out.
[41]
The eleventh allegation which appears at paragraph 12 of the Second Statement of Claim is that on 18 January 2008 the respondent contravened s.18C of the RD Act when its Chief Executive Officer, Chris Chapman, made an unjustified and serious comment saying that the applicant did not comply with "Local Associations Act Legislation", without finding the "real facts".
The respondent says it does not know what comment was allegedly made by Mr Chapman, to whom it was made and in what context it was made. Further, it says that there is clearly no nexus between any such alleged comment and the national or ethnic origin of the applicant as required by s.18C of the RD Act. The respondent says that the applicant has no reasonable prospect of satisfying the elements of s.18C of the RD Act.
Even if Mr Chapman did make the comment which is attributed to him it is not a comment which has a nexus, alternatively, any sufficient nexus, to the national or ethnic origin of the applicant as required by s.18C of the RD Act. It is apparent, and conceded by the applicant, that there was not compliance by the applicant with relevant associations' legislation. There is, however, nothing in the statement attributed to Mr Chapman, either of itself or in relation to any of the other matters referred to in the Second Statement of Claim, which bring Mr Chapman's statement within the remit of s.18C of the RD Act.
It follows that paragraph 12 of the Second Statement of Claim must be struck out.
[42]
The twelfth allegation in paragraph 14 of the Second Statement of Claim is that the respondent has contravened "Parliament['s] desire by ignoring the Parliament['s] power to make special laws for people deemed necessary" and that this is "a contravention regarding the Constitution, Chapter I(xxvi)."[58]
The respondent says it does not comprehend the twelfth allegation, that it does not disclose any reasonable cause of action, and that it is embarrassing.
The Court assumes that the reference to "Chapter I(xxvi)" is in fact a reference to the legislative powers of the Commonwealth Parliament under s.51(xxvi), which is set out above.[59]
For the same reasons as appear above in relation to the seventh allegation, this allegation cannot succeed. Therefore, paragraph 14 of the Second Statement of Claim must be struck out.
[43]
The thirteenth allegation is that the respondent contravened the Convention Part I Article 1(1) and Part II(9) of the RD Act regarding a Canadian definition of racism by showing "institutional and prejudicial racism".[60]
The definition of "racism" set out in paragraph 15 of the Second Statement of Claim is as follows:
Racism is a set of mistaken assumptions, opinions and actions resulting from the belief that the one group of people categorized by colour or ancestry is inherently superior to racism may be present in organizational and institutional policies and practices, as well as in the attitudes and behaviours of individuals Dept. of Multicultural Studies UBC Canada.
The respondent says that it does not comprehend the thirteenth allegation, and that it does not disclose any reasonable cause of action, and that it is embarrassing.
The quote is obviously incomplete or misquoted as it does not make literal sense. In any event, what matters here is not how racial discrimination is defined in a study by a department of a Canadian university, but rather how it is defined in the RD Act,[61] and how it has been applied by Australian federal courts. It follows that paragraphs 15 and 16 of the Second Statement of Claim should be struck out.
[44]
The fourteenth allegation contained in paragraph 17 of the Second Statement of Claim is that the applicant feels that the respondent has engaged in the practice of making distinctions between people on the basis of prejudicial attitudes and beliefs, which leads to the inequitable treatment of individuals or groups and is discrimination, and that this is a contravention of s.18C of the RD Act.[62]
The respondent says that it does not comprehend the fourteenth allegation, and that it does not disclose any reasonable cause of action, and that it is embarrassing.
Paragraph 17 of the Second Statement of Claim is nothing more than a statement as to how the applicant feels that it has been treated by the respondent. It is devoid of factual content, and it is not apparent from the remainder of the Second Statement of Claim as to what distinctions between people on the basis of prejudicial attitudes and beliefs leading to inequitable treatment of individuals or groups, are being referred to. There is no specification of which "people" the "distinctions" have been made "between" for the purposes of making a practice discriminatory. If paragraph 17 is intended to be a reference to Mr Oakes' statement in paragraph 8, the paragraph adds nothing as it is already alleged that that statement gives rise to a contravention of s.18C of the RD Act.
It follows that paragraph 17 of the Second Statement of Claim will be struck out.
[45]
Paragraph 13 of the Second Statement of Claim is as follows:
A document No. 64 relating to issues of this claim in the ACMA library was picked up by the Google search machine and is now on the website. To do so
[46]
Manifestly, the paragraph is incomplete, and it is not comprehensible. Nor is the relevance of the matter adverted to apparent. The paragraph is embarrassing and will be struck out.
[47]
Paragraph 18 of the Second Statement of Claim notes that a person for the purposes of an application under s.46PO of the AHRC Act may include an organisation. The paragraph goes on to complain that the respondent's actions, and in particular the mention of Mr and Mrs Moleirinho in the Licence Renewal Reasons, has caused them embarrassment, shame, stress and depression, and that they have been wrongly treated by the respondent.
Paragraph 18 of the Second Statement of Claim:
unnecessarily sets out the provisions, and the applicant's interpretation, of s.46PO of the AHRC Act;[63] and
makes a statement concerning the effect of the Licence Renewal Reasons on Mr and Mrs Moleirinho, which is really a matter of evidence, and not appropriate to be put, in the manner that it has been put, in the Second Statement of Claim.
It follows that paragraph 18 of the Second Statement of Claim must be struck out.
[48]
Paragraph 19 of the Second Statement of Claim is as follows:
In my view if this Statement of Claim is to precede these above issues should be clarified.
[49]
The paragraph is plainly unnecessary, and embarrassing, and should be struck out.
[50]
Whether application frivolous, vexatious or abuse of process
[51]
In circumstances where at least some of the allegations in the Second Statement of Claim have been found to give rise to real issues of fact or law to be decided it cannot be said that the Application has been made frivolously, vexatiously, or that it is an abuse of process within the accepted meaning of those terms.
To the extent that the Court has determined that allegations do not give rise to real issues of fact or law to be determined those allegations are not frivolous, vexatious or an abuse of process, as they generally arise from the applicant's lack of knowledge or misunderstanding of the relevant law. In circumstances where the applicant's litigation is essentially being run by volunteer members of a not-for-profit cultural organisation, for some of whom English is a second language, that lack of knowledge and misunderstanding is not to be characterised as frivolous, vexatious or an abuse of process. Even if aspects of the Second Statement of Claim reveal a lack of knowledge and misunderstanding for the reasons set out above, the Court has no reason to doubt that the applicant has endeavoured in good faith to render its allegations in a proper and appropriate form.
[52]
On 7 May 2010 the Court ordered that the applicant file and serve a Statement of Claim "in proper form". The Second Statement of Claim was subsequently filed on 31 May 2010.
The respondent submits that the Second Statement of Claim was not filed "in proper form" as required by the Court's order of 7 May 2010, and that, therefore, the applicant is in breach of r.13.03A(1)(a) of the FMC Rules because it has not complied with an order of the Court in the proceeding, and is therefore liable to an order for summary dismissal under r.13.03B(1)(a) of the FMC Rules.
The respondent says that to the extent that the FMC Rules do not prescribe rules in respect of pleadings, it is submitted that r.1.05(2) of the FMC Rules allows the Court to apply the FC Rules, and that O.11 rr.1, 2(a) and 3 of the FC Rules can therefore apply to these proceedings. In that regard, the respondent submits that the Second Statement of Claim fails to comply, even to a small degree, with those rules and further submits that it has not been drafted in "proper form".
Order 11 rr.1, 2(a) and 3 of the FC Rules provide as follows:
1. Where a pleading alleges or otherwise deals with several matters:
(a) the pleading shall be divided into paragraphs;
(b) each matter shall, so far as convenient, be put in a separate paragraph; and
(c) the paragraphs shall be numbered consecutively.
2. Subject to these Rules:
(a) a pleading of a party shall contain, and contain only, a statement in a summary form of the material facts on which the party relies, but not the evidence by which those facts are to be proved; ...
3. A pleading shall be as brief as the nature of the case admits.
The Court has observed above that the applicant has endeavoured, in good faith, to render the allegations in proper form. Certainly, the Second Statement of Claim is in better form than the original Statement of Claim.
As observed above, the Second Statement of Claim does contain allegations which give rise to real issues of fact and law to be decided. To some degree therefore it can be said to be "in proper form". The Court must also consider the "exceptional caution" that must attend this Court's consideration of summary dismissal applications in unlawful discrimination cases.[64] Finally, the Court must also consider the statutory direction that the Court "operate as informally as possible" and that the parties "avoid undue ... technicality."[65] Having considered the above matters, and notwithstanding the terms of the Court's order of 7 May 2010, the Court does not consider that the Application should be summarily dismissed because the Second Statement of Claim is not "in proper form".
[53]
Does the application arise out of the same or substantially the same acts the subject of the terminated complaint?
[54]
At hearing, the respondent raised the issue of whether the application to this Court arises out of the same or substantially the same acts the subject of the terminated complaint.
By reason of s.46PO(3)(b) of the AHRC Act an applicant is permitted to allege in this Court facts different to those alleged in the terminated AHRC complaint, provided that the newly alleged facts are not different in substance from the formerly alleged facts.[66] These provisions do not limit this Court to considering the initial complaint to AHRC, but rather the complaint ultimately considered by AHRC.[67] No doubt difficulties may arise with a complaint generally expressed or lacking details.[68] Given that complaints will often not be prepared by lawyers, and ought not to be construed as if they were pleadings, this kind of difficulty will be for the Court to determine as to whether the evidence arises out of the same, or substantially the same, acts, omissions or practices that were the subject of the terminated complaint.[69]
The original AHRC complaint was considered under ss.9, 13 and 18A of the RD Act. The Application in this Court as contained in those parts of the Second Statement of Claim which have not been struck out, are founded in ss.9, 13 and 18C of the RD Act. However, they are based on the same acts or omissions that were the subject of the terminated AHRC complaint. Therefore, the remaining paragraphs of the Second Statement of Claim ought not be struck out on the basis that the claim in this Court contravenes s.46PO(3) of the AHRC Act.
[55]
For the reasons set out above the Court has concluded that in relation to the issues of summary dismissal and strike out:
[56]
the Application in a Case for summary dismissal of the Application should be dismissed;
2. paragraph 1 of the Second Statement of Claim should be struck out save for the following words:
* (i) "The application for renewal was first lodged in January 2007. However, issues concerning our constitution and corporate governance were only raised at the meeting held in Perth on 30/10/07".
* (ii) "Mr. Gavin Oakes (the ACMA representative) arrived with ACMA's legal counsel from Perth, Ms C. Scott."
* (iii) "The meeting was held at the Radio Station 91.3 FM in Perth (Jandakot). Representatives from the radio were Mr. Manuel Moleirinho (Chairman), Mrs. Elsa Moleirinho (Secretary) of the PCWC and also Mr. Alex Moleirinho as an ordinary committee member and all of whom were volunteers for the radio station. Alex Moleirinho who is Australian born was helping us for the renewal of the radio license application."
[57]
the final two sentences of paragraph 5 of the Second Statement of Claim should be struck out; and
[58]
paragraphs 3, 6, 7, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19 of the Second Statement of Claim should be struck out.
Although the majority of the Second Statement of Claim has been struck out, that which remains still forms the basis for a case which is sufficiently arguable as to go to hearing. The question arises as to whether the applicant should be allowed to re-plead by filing a further Statement of Claim. In the circumstances, that is a matter which both parties may wish to be heard on, and:
given the nature and length of these Reasons for Judgment, and
in fairness to the applicant (given that it is not presently legally represented), further consideration of the issue can be deferred to a future directions hearing. It may also be a matter affected by the issue of pro bono referral considered below.[70]
[59]
At the outset of the hearing of the Application in a Case Mr Moleirinho sought leave to appear on behalf of the applicant. That leave, restricted to the hearing of the Application in a Case, was granted by the Court, and the Court indicated that it would, in these Reasons for Judgment, explain why leave to appear was given to Mr Moleirinho.
[60]
Section 44 of the FM Act provides as follows:
A party to a proceeding before the Federal Magistrates Court is not entitled to be represented by another person unless:
(a) under the Judiciary Act 1903, the other person is entitled to practise as a barrister or solicitor, or both, in a federal court; or
(b) under the regulations, the other person is taken to be an authorised representative; or
(c) another law of the Commonwealth authorises the other person to represent the party.
Rule 9.04 of the FMC Rules provides as follows:
Except as provided by or under an Act or regulations made under an Act, or with the leave of the Court, a corporation may not start or carry on a proceeding otherwise than by a lawyer.
Section 46PQ of the AHRC Act provides as follows:
(1) A party in proceedings under this Division:
(a) may appear in person; or
(b) may be represented by a barrister or a solicitor; or
(c) may be represented by another person who is not a barrister or solicitor, unless the court is of the opinion that it is inappropriate in the circumstances for the other person to appear.
(2) A person, other than a barrister or solicitor, is not entitled to demand or receive any fee or reward, or any payment for expenses, for representing a party in proceedings under this Division.
Section 46PQ of the AHRC Act is a law of the Commonwealth authorising another person to represent the applicant for the purposes of s.44(c) of the FM Act, "unless the court is of the opinion that it is inappropriate in the circumstances for the other person to appear."[71]
Section 46PQ of the AHRC Act is also an exception provided by another Act in relation to a corporation starting or carrying on proceedings otherwise than by a lawyer.[72]
The Court has discretion under s.46PQ(1)(c) of the AHRC Act to allow Mr Moleirinho to appear as a non-lawyer in these proceedings. The discretion is to be exercised cautiously.[73] The general restriction on appearances, allowing only individuals who are parties or qualified legal practitioners to appear, seeks to ensure that the Court has assistance from:
parties who know their case; or
qualified legal practitioners who:
can make informed submissions;
can assist the Court; and
have duties to their clients and to the Court, which duties unqualified persons do not have.[74]
When deciding whether to exercise discretion to grant leave to allow a non-lawyer to appear on behalf of a party, courts generally take into account the following principles:
[61]
the complexity of the matter;
2. the genuine difficulties of a self-represented party;
[62]
the unavailability of disciplinary measures against, and the absence of any duty to the Court by, lay advocates;
[63]
protection of the client and the opponent from the actions of an unqualified person;
2. whether lay advocates ought to appear in inferior courts and tribunals; and
3. the interests of justice.[75]
[64]
Complexity - the factual allegations and legal claims
[65]
The factual allegations made in this matter by the applicant are not overly complex. They are allegations which are made by, and therefore well known to, Mr Moleirinho in his capacity as President of the applicant. The factual allegations are not so complex as to necessarily require legal representation.
The legal claims are however complex: discrimination law by its nature tends to give rise to complex considerations. Further, in this matter there is the additional overlay of broadcasting and administrative law elements which are intertwined with the discrimination claim, although not the subject of separate claims in themselves. The nature of the legal claims in this matter is such that ordinarily a lawyer would be required to argue the matters. That is certainly the case in relation to any final hearing which requires the Court to ultimately resolve the legal claims which have been made. However, this matter is at a different stage, and albeit that if the respondent's Application in a Case is successful the Application would be dismissed, the legal issues arising on the summary dismissal application, and the strike-out, are not as complex as they will be at a final hearing.
Further, in relation to the Application in a Case the applicant is assisted because factual resolution is generally unnecessary, with all reasonable inferences being drawn in favour of the applicant.[76]
[66]
The applicant has endeavoured to obtain representation in relation to this matter. It instructed a solicitor in the preparation of a Statement of Claim for these proceedings. There does not appear to be any dispute that the solicitors instructed withdrew shortly before the Statement of Claim was due to be filed and after payment of some $3,000 had been made. Again, there does not appear to be any particular dispute that other legal assistance, including legal aid, has been sought, but no assistance has been forthcoming. There is no evidence that community legal groups or pro bono referral under the FMC Rules has been sought. The latter is however a matter which is considered later in these Reasons for Judgment.
The information before the Court indicates that the applicant is a voluntary association run by its members and primarily dependent upon Government grants to run its operations. The cost associated with, and the difficulties in obtaining unpaid legal assistance, mean that there are genuine difficulties for the applicant in obtaining legal representation for the purposes of these proceedings.
Those difficulties are such that, at least at this stage, the applicant's interests are best represented by allowing Mr Moleirinho, in his capacity as President of the applicant, to appear before the Court. Notwithstanding that he is not a lawyer, evidently has little or no experience in appearing in Court, and has some difficulty comprehending the proceedings because English is not his first language, his appearance for the applicant is better than no appearance at all for the applicant.
The Court also observes that from the Court's point of view the lack of legal representation for the applicant is, at this stage of the proceedings, somewhat ameliorated by the very helpful, and generally fair, submissions filed on behalf of the respondent.
[67]
Unavailability of disciplinary measures and a duty to the Court by lay advocates and protection of the client and the opponent
[68]
The Court does not have available to it disciplinary measures (contempt aside) in the event of misconduct by Mr Moleirinho before the Court, and Mr Moleirinho does not owe a duty to the Court as a lay advocate in the same manner that a legal practitioner owes a duty to the Court. However, in this matter, that is not a matter which concerns the Court. Mr Moleirinho has appeared at earlier directions hearings, and it is apparent that whilst, for reasons set out above, he may not be familiar with the judicial process, he is nevertheless respectful of the judicial process and the Court. The Court has no concerns that he is likely to behave improperly or deliberately or negligently mislead the Court. For those reasons, he is also unlikely to do anything which will require the respondent to be protected. Further, for reasons set out above the protection of the applicant, in the absence of legal representation, is, in all the circumstances of this case, best done by the President of the applicant, Mr Moleirinho, appearing at this stage in these proceedings.
[69]
For the reasons set out above, a party appearing in proceedings before a federal court would ordinarily be required to appear by a lawyer. However, the AHRC Act provides for an exception to that, unless it is inappropriate in the circumstances of the case. There is, therefore, a statutory exception, albeit qualified, which allows lay advocates to appear in this Court in proceedings under the AHRC Act in relation to a RD Act claim, unless the Court considers it inappropriate to allow a person who is not a lawyer to appear.
[70]
In this matter the interests of justice include a consideration of some of the issues canvassed above, together with questions of case management.
To deny Mr Moleirinho leave to appear at the hearing of the Application in a Case would have left the applicant unrepresented, and effectively without anyone putting a submission on its behalf, save insofar as written submissions and materials had already been filed and were before the Court. For reasons already set out above, Mr Moleirinho was, for the purposes of the Application in a Case, in the best position to put submissions on behalf of the applicant in response to the application for summary dismissal.
From a case management perspective, for Mr Moleirinho to be denied leave to appear may have resulted in a significant adjournment of the proceedings whilst the applicant sought to find solicitors to be instructed, and Counsel to be briefed, to appear in the proceedings. Furthermore, at that stage, for that reason, it was not in the interests of justice when the matter can, and was, adequately addressed by the parties, particularly with the assistance of the helpful written submissions by the respondent.
The interests of justice in this case, and in particular the interests in having the applicant represented, albeit not legally represented, and preventing delay, warranted Mr Moleirinho's appearance for the applicant, in the Application in a Case.
[71]
For the above reasons, and on balance, the Court considered that Mr Moleirinho ought to be granted leave to appear for the applicant in the Application in a Case. Whilst not without doubt, the Court, having regard to the policy position behind allowing non-lawyers to appear in human rights proceedings in this Court unless the Court considers it inappropriate to do so, and bearing in mind the exceptional caution that the Court exercises in determining whether to allow a non-lawyer to appear, it nevertheless appeared to the Court that in all of the circumstances it was appropriate for Mr Moleirinho to appear for the applicant.
[72]
The Court observes that although the applicant has endeavoured to obtain legal representation it has not been successful in doing so on a pro bono basis. The applicant has not however had resort to the Court's pro bono panel. An issue arises as to whether or not the applicant ought be afforded the opportunity to make an application for referral of this matter to a Registrar of the Court for referral to a lawyer on the pro bono panel in an attempt to obtain legal assistance for the applicant.[77] That is a matter which the applicant might consider, and then address at the next directions hearing.
[73]
The respondent has been named the "Australian Media and Communications Authority" thus far in these proceedings as a consequence of that name appearing on the original application. That name is incorrect, and the correct name of the respondent is "Australian Communications and Media Authority".[78] Accordingly, there will be an order amending the name of the respondent.
[74]
the respondent's Application in a Case for summary dismissal of the Application should be dismissed;
2. paragraph 1 of the Second Statement of Claim should be struck out save for the following words:
* (i) "The application for renewal was first lodged in January 2007. However, issues concerning our constitution and corporate governance were only raised at the meeting held in Perth on 30/10/07".
* (ii) "Mr. Gavin Oakes (the ACMA representative) arrived with ACMA's legal counsel from Perth, Ms C. Scott."
* (iii) "The meeting was held at the Radio Station 91.3 FM in Perth (Jandakot). Representatives from the radio were Mr. Manuel Moleirinho (Chairman), Mrs. Elsa Moleirinho (Secretary) of the PCWC and also Mr. Alex Moleirinho as an ordinary committee member and all of whom were volunteers for the radio station. Alex Moleirinho who is Australian born was helping us for the renewal of the radio license application."
[75]
the final two sentences of paragraph 5 of the Second Statement of Claim should be struck out; and
[76]
paragraphs 3, 6, 7, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19 of the Second Statement of Claim should be struck out;
2. the name of the respondent is to be amended to read "Australian Communications and Media Authority"; and
3. the matter be adjourned to a directions hearing at 9.30am on 1 April 2011.
[77]
The Court will hear the parties as to costs at the directions hearing on 1 April 2011, unless the parties agree costs in the interim.[79]
[78]
I certify that the preceding 147147one hundred147147forty-seveneighty-fourone hundred and forty-seven (147) paragraphs are a true copy of the reasons for judgment of Lucev FM
[79]
[4] "BS Act". See BS Act, ss.5, 6(1), 84, 90 and 91.
[11]George v Fletcher[2010] FCAFC 53 at para.75 per Ryan and Logan JJ; White Industries Australia Ltd v Commissioner of Taxation (2007) 160 FCR 298 at 310 per Lindgren J; [2007] FCA 511 at paras.50-54 per Lindgren J; and paras.99-105 per Marshall J, and in particular para.102; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd[2008] FCAFC 60; (2008) 167 FCR 372 at 387-388 per Rares J; [2008] FCAFC 60 at para.45 per Rares J; Lawrenson Light Metal Die Casting Pty Ltd (in liq) v Cosmick Pty Ltd[2006] FCA 753 at para.15 per Heerey J.
[83]
[12]Dandavan v Harbeth Holdings Pty Ltd[2008] FCA 955 at para.6 per Gilmour J ("Dandaven").
[43] An acronym for the "Portuguese Culture and Recreational Centre", a previous name for the applicant.
[106]
[44] Licence Renewal Reasons, pages 6-7. A footnote in the above quote, which has not been reproduced in the quote, notes that according to 2001 Census figures the total population of Portuguese speakers in the Fremantle licence area is only around 1650.
[47]Koowarta at 186-187 per Gibbs CJ; 210-211 per Stephen J; 245 per Wilson J and 261 per Brennan J.
[110]
[48]Koowarta at 210 per Stephen J. In R French "The Race Power": A Constitutional Chimera" in HP Lee and G Winterton (Eds), Australian Constitutional Landmarks (Cambridge: Cambridge University Press, 2003) at 191 it is said that the "approach ... which has been adopted by the High Court" is one which "... requires identification by the law of people of a particular race to which it applies or with which it has a specific connection and requires also a differential operation of that law in respect of those people ...".
[67]Travers v New South Wales[2000] FCA 1565 at para.8 per Lehane J ("Travers"); Ho v Regulator Australia Pty Ltd(2004) EOC 93-332; [2004] FMCA 62 at para.4 per Driver FM; Hollingdale v Northern Rivers Area Health Service[2004] FMCA 721 at para.10 per Driver FM.
[74]Groundwater FLR at 445 per Brown FM; FMCA at para.40 per Brown FM. See also Reynolds v The Minister for Health & Anor[2010] FMCA 843 at para.7 per Lucev FM ("Reynolds").
[129]
[75] After an extensive review of the authorities these principles were enunciated in Damjanovic v Maley[2002] NSWCA 230; (2002) 55 NSWLR 149 at 162-164 per Stein JA; [2002] NSWCA 230 at paras.69-86 per Stein JA ("Damjanovic"), and have been applied in Groundwater FLR at 445-446 per Brown FM; FMCA at paras.42-46 per Brown FM; Melaleuca of Australia & New Zealand Pty Ltd v Duck[2005] FCA 1481 at para.14 per Bennett J ("Melaleuca"); and Reynolds at para.8 per Lucev FM.
[79] As to costs in interlocutory human rights proceedings in this Court, see Reynolds v The Minister for Health (No 2)[2010] FMCA 910 at para.3 per Lucev FM, and the cases there cited.
Parties
Applicant/Plaintiff:
Portuguese Cultural & Welfare Centre Inc
Respondent/Defendant:
AMCA [2011] FMCA 144
Legislation Cited (11)
Discrimination Act 2004
Communications and Media Authority Act 2005
Human Rights Commission Act 1986
Services Act 1992
Discrimination Act 1992
Court of Australia Act 1976
Magistrates Act 1999
Magistrates Court Rules 2001
Discrimination Act 1975
Discrimination Act 1984
Rights and Equal Opportunity Commission Act 1986
Cases Cited (47)
Portuguese Cultural & Welfare Centre Inc v AMCA [2011] FMCA 144 (18 March 2011)
White Industries Australia Ltd v Commissioner of Taxation (2007) 160 FCR 298; [2007] FCA 571
(2008) 177 IR 427
(2007) 162 IR 17
(2000) 105 FCR 573
(2001) 112 FCR 352
(2002) 55 NSWLR 149
(1949) 78 CLR 62
(2006) 195 FLR 475
(1964) 112 CLR 125
(2004) 183 FLR 437
(1997) 191 CLR 1
(2008) 167 FCR 372
(2004) 207 ALR 421
(1982) 153 CLR 168
(2008) 167 FCR 537
(1948) 78 CLR 62
(2007) 160 FCR 298
a) to enable the Federal Magistrates Court to operate as informally as possible in the exercise of judicial power; and
b) to enable the Federal Magistrates Court to use streamlined procedures.[22]
However, of more significant concern for ACMA are the problems it has found in relation to PCRC's management, and in particular its corporate governance, which are discussed below. In ACMA's view, the management and corporate governance of a licensee association are intrinsically bound up with the way that a licensee association operates, and will directly affect the ability of members of the community to engage with the licensee and the broadcasting service, and the way in which the licensee meets the needs of the community. If these are compromised by poor management practices and corporate governance, it seems likely that this would adversely affect the extent to which the licensee could meet the existing and perceived future needs of the community within the licence area that it has been licensed to serve.
On balance therefore, having regard to the material before it, ACMA has concluded that because PCRC's management practices have provided only limited (and informal) opportunities for the community to engage with the licensee, ACMA is not satisfied that PCRC's service meets, to an adequate extent, the existing and perceived future needs of the community within the licence area that it has been licensed to serve.[44]