Third and Fourth Respondents' motion
17 The third respondent, Dr Armstrong and the fourth respondent, Dr Latham have applied for summary judgment pursuant to s 31A of the Act. Under s 31A, the Court is empowered to give judgment for a respondent to a proceeding where the Court is satisfied that the applicant has no reasonable prospect of successfully prosecuting a proceeding. In considering whether a party has a reasonable prospect of success, the Court need not be satisfied that the proceeding is hopeless or bound to fail (s 31A(2)). In Rana v Commonwealth of Australia [2008] FCA 907 at [49], Lander J said:
Section 31A of the Federal Court Act was enacted by the legislature with full knowledge of the decisions of the High Court in relation to the summary dismissal of proceedings and, in particular, the decision of the High Court in Dey 78 CLR 62 at 91 and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. It may be thought, in those circumstances, that the purpose of the enactment of s 31A was to relax the rigours of the test imposed by the High Court in General Steel Industries 112 CLR 125 as to the necessary circumstances in which a proceeding may be struck out summarily: Jewiss v Deputy Commissioner of Taxation (2006) 65 ATR 222 and White Industries Australia Ltd v Commissioner of Taxation (2007) 160 FCR 298. So much is supported by the Attorney-General's second reading speech on the Migration Litigation Reform Bill 2005 (Cth) which was the legislative vehicle which introduced s 31A. He said:
The bill also strengthens the power of the courts to deal with unmeritorious matters, by broadening the grounds on which federal courts can summarily dispose of unsustainable cases. It is appropriate that this provision is of general application. It will be a useful addition to the courts' powers in dealing with any unsustainable case.
18 Relevantly, s 46PO deals with making an application to the Federal Court alleging unlawful discrimination by one or more of the respondents to the terminated complaint. It is contended for Dr Armstrong and Dr Latham that a plain reading of s 46PO of the HREOC Act makes it clear that as a precondition to the accrual of jurisdiction by this Court, the complaint made in the Court must be limited to persons who were respondents to the terminated complaint before the Commission.
19 Dr Armstrong and Dr Latham were not named as respondents to the complaint in the Commission. It follows, they say, that the Court has no jurisdiction to hear Dr Reading's application against them.
20 In Grigor-Scott v Jones [2008] FCAFC 14, the Full Court observed at [18]-[20]:
18. Section 46PO does not provide for a general statutory cause of action available to anyone who may have been at any time affected by the unlawful discrimination. The statutory cause of action is only available to those who made the complaint or on whose behalf the complaint was made. It only lies in respect of the subject matter of the complaint to the Commission. Importantly, for the purpose of this appeal, it only lies against the respondents to the terminated complaint. Also importantly, the application commencing the proceeding upon the cause of action must be brought within 28 days after the date of issue of the s 46PH(2) notice, or such later time as the Court allows.
19 The intention is to limit the complaint which is to be brought to the Court to the same complaint as was made to the Commission by the same complainants and against the same respondents. It is easy to understand why that is so. The intention is to ensure that the Commission is always the filter for claims of unlawful discrimination before they are brought to the Courts, unless the President is satisfied that the complaint involves a matter of public importance that should be considered by the Federal Court or the Federal Magistrates Court. In acting as that filter, the President attempts to conciliate every complaint of unlawful discrimination which is not lacking in substance and which has not been otherwise adequately dealt with or cannot be effectively dealt with by another statutory authority: s 46PH(1).
20 The provisions briefly summarised above clearly assume that there is a respondent to the relevant complaint. Under s 3 of the Commission Act, respondent in relation to a complaint means the person or persons against whom the complaint is made. Clearly enough, therefore, when a complaint is lodged pursuant to s 46P of the Commission Act, the complaint must be against a person. A person, of course, may be an individual or some other entity that has legal personality. That is to say, there must be someone to respond to the complaint, being the person whose acts, omissions or practices are said to be unlawful under, relevantly, the Discrimination Act. That is not surprising having regard to the requirements of s 46PF that the President attempt to conciliate the complaint. The President must be able to identify a legal person who could participate in such a conciliation. (emphasis added)
At [69] it was said:
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. (emphasis added)
21 As observed by the Full Court at [19], the intention is to ensure the Commission is always the filter for claims for unlawful discrimination before such claims are brought to the courts.
22 The notice and letter terminating the complaint and giving the President's reasons make it clear that Dr Armstrong and Dr Latham were not respondents to the complaint before the Commission. Most doctors were not referred to in the way that Dr Toben was referred to in Jones v Toben [2002] FCA 1150 on which the Full Court in Grigor-Scott [2008] FCAFC 14 at [73]-[74] said:
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."
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.
23 Dr Reading herself acknowledges in her claim, Dr Armstrong and Dr Latham left the practice in April 2006 and were certainly not members of the Partnership at the time Dr Reading brought the complaint before the Commission in December 2006.
24 The proposition raised by Dr Reading, however, is that by naming WDP as the respondent in the Commission, she effectively encompassed Dr Armstrong and Dr Latham even though at the time of lodging her complaint they were no longer partners of WDP.
25 Order 42 of the Rules would permit the action to have been commenced against WDP. The extent to which, if any, joint and several liability may or may not apply as between parties would then be determined by substantive law including legislation governing the dealings of partnership in the context of potential liability, inter alia, under the HREOC Act. It is true that one who sues partners in the name of their firm is in reality suing them individually just as much as if the names of the partners were all set out: Western Bank of City of New York v Perez, Triana & Co [1891] 1 QB 304 at 314 per Lindley LJ. In Jadwan Pty Ltd v Middletons (A Firm) [2007] TASSC 74, Evans J observed at [20]:
A partnership is not a distinct legal entity. The members of the partnership do not form a collective whole, distinct from the individuals who make up the partnership, Rose v Federal Commissioner of Taxation (1951) 84 CLR 118 at 124. So as to avoid the difficulty of naming all the members of a partnership that sues or is sued, court rules commonly provide that a partnership may sue or be sued in its firm name, and that when a partnership is so sued, the service of one partner shall be the service of all partners.
26 However, Dr Armstrong and Dr Latham were not members of WDP at the date of the complaint. The surrounding facts appear to make it clear that the complaint was against the members of the Partnership as it was constituted at the date of the making of the complaint rather than against previous partners of the firm against whom (in the case of Dr Armstrong and Dr Latham), no specific complaint was raised. It had always been open to Dr Reading to join such retired partners by name if it was intended that the complaint should be raised expressly against them but she did not do so.
27 Dr Reading submits that because complaints to the Commission included incidents which date from mid-2005 to December 2006, Dr Armstrong and Dr Latham are responsible for any unlawful character of those incidents as they were partners at the time. It is contended that in effect Dr Armstrong and Dr Latham were respondents of the Commission claim even though they were not named in that capacity. She relies in effect upon two matters to support that contention. First, Dr Reading relies on a number of documents referred to in her affidavit of 24 June 2008 in which references are made to Dr Armstrong and Dr Latham. One is a letter from Dr Reading's then solicitors dated 27 November 2006 to the Partnership. In that letter can be found references to Dr Armstrong and Dr Latham. Apparently a letter in similar terms was made available to Dr Armstrong and Dr Latham. That reference, in my view, does not, without more, amount to those persons being respondents in the Commission. In Dr Reading's complaint lodged with the Commission electronically on Sunday, 31 December 2006, she describes circumstances which had ensued over a period of time saying that the events being complained about were 'long standing last 2-3 years' and 'worse this year January to December'. Again there is no specific reference to Dr Armstrong and Dr Latham in this letter but Dr Reading would rely on the fact that the period in respect of which the complaints were raised, encompasses in part a period in which they were members of the Partnership. In another document, an email dated Tuesday, 31 October 2006 the position is the same. There is no specific reference to Dr Armstrong and Dr Latham in that email but the complaints which it raises, while not descending to specifics in any detail, does make reference to her long period of tenure as a partner.
28 The other general proposition advanced by Dr Reading is that Dr Armstrong and Dr Latham assisted with the investigation by the Commission of her complaints after the complaint was lodged. Again however, answering the Commission's questions, giving assistance and providing information do not amount to the same thing as being a respondent to the complaint.
29 It is clear in my view that the communications to which I have referred above including Dr Reading's email of 31 October 2006 and the letter sent on her behalf on 27 November 2006 were directed to the then current members of the Partnership. Not only had Dr Armstrong and Dr Latham ceased to be members of that Partnership in April 2006, but it was contended for them, without objection, that they were never parties to the Partnership Deed which is referred to in the 27 November 2006 letter.
30 Dr Armstrong and Dr Latham point to the fact that even if the complaint filed in the Commission was intended to be directed to Dr Armstrong and Dr Latham as well as WDP, there is no suggestion that they were served with a copy of the complaint, that they instructed the firm of solicitors representing WDP (they have instructed other solicitors), that they accepted any responsibility for or paid any contribution to WDP's legal expenses or otherwise participated or had any involvement in opposing the complaint.
31 In my view there is no basis for a conclusion that Dr Armstrong and Dr Latham were individual respondents to the Commission proceedings. Indeed, the conclusion can only be to the contrary.
32 Dr Reading has proposed in recognition of the fact that WDP alone was the respondent in the Commission that she would amend her application in this Court so as to delete the reference to the individual respondents. In doing so, she makes it clear that she apprehends that they would remain personally liable but acknowledges that the proceedings in this Court may be issued only as against the respondent in the Commission. The proposal she raises to remove Dr Armstrong and Dr Latham from the list of individual respondents in these proceedings does not address the fundamental jurisdictional point of whether or not they, as individuals, were respondents to the Commission complaint and thus whether they are now amenable to the jurisdiction of this Court in these proceedings. They were not respondents. The only appropriate solution is to allow the application of Dr Armstrong and Dr Latham for the proceedings against them to be dismissed pursuant to s 31A of the Act.