Racial Discrimination Act 1975

Human Rights and Equal Opportunity Commission Act 1986 ss.3, 46PF, 46PH(2), 46PO(1), 46PR

Federal Court Rules 2001 O.4, Rules 4(1)(b) and 7.01.

Speirs v Darling Range Brewing Co Pty Ltd & Anor [2002] FMCA 126

IW v City of Perth & ors (1996-7), 191 CLR 77

Arnold v Queensland & Anor [1987] FCA 148; (1987) 73 ALR 607

Commonwealth v Sex Discrimination Commissioner [1998] FCA 1607; (1998) 90 FCR 179

ROYAL FLYING DOCTOR SERVICE EASTERN GOLDFIELDS WA SECTION INC

(1) The Applicant be granted leave to amend nunc pro tunc the name of the Applicants by deleting "the Ninga Mia Christian Fellowship and the Wongutha Birni Aboriginal Corporation" and inserting "Patricia Ranger, Wendy Ranger, Prudence Scott, Bruce Scott, Janice Scott, Noreen Scott, Bruce Scott, Margaret Wallam, Annette Stokes, Mark Stokes, Vicki Stokes, Bradley Stokes, Kellie-Jo Bolton, Duncan Bilson, Edward Johnston, Stella Wicker, Samuel Stokes and Marnette Jennings" in lieu thereof.

ROYAL FLYING DOCTOR SERVICE EASTERN GOLDFIELDS WA SECTION INC

1. In this application the named Applicant, Geoffrey Stokes, on behalf of the Ninga Mia Christian Fellowship (the Fellowship) and the Wongutha Birni Aboriginal Corporation (the Corporation) has made application arising from a complaint which had been before the Human Rights and Equal Opportunity Commission (the Commission) and which had been the subject of a termination notice issued by the Commission on 26 November 2002.

2. The complaint, in brief terms, arises from an event which is said to give rise to alleged claims of discrimination under the Racial Discrimination Act. It is not necessary for me to recite in detail the nature of the complaint save and except that it is a complaint that relates to an alleged incident that occurred on 13 April 2002 in Kalgoorlie, where it is said that the First Respondent, the Royal Flying Doctor Service, had conducted or held a festival referred to as Rhythms of the Outback Festival (the Festival). The complaint relates to what are alleged to be circumstances said to confront a group of Aboriginal persons who were then, it is said, a group who were the subject of the complaint lodged by Mr Geoffrey Stokes.

3. It should be noted that Mr Stokes had lodged a complaint with the Commission and did by electronic format - that is, email - and in that electronic communication had completed on the complaint a number of responses. In particular, the email format, which as I indicated during the course of exchange with counsel, refers to the issue of whether the complaint is made on behalf of someone else and he has answered "Yes". In that electronic complaint he inserts the name of the Fellowship to which I have referred and the Corporation.

4. The format of the complaint does nothing more than provide in writing a complaint in accordance with the provisions of the Human Rights and Equal Opportunity Commission Act (the HREOC Act). There is no prescribed form and the electronic format is simply a means by which it could be said that a complaint is lodged in writing to comply with the provisions of the Act.

5. When the application was made before me, I made orders on

5 February 2003 which provided that the Applicant should file an amended application, amongst other things, on or before 7 March 2003. I had further made orders that the Second Respondent, if it chose to do so, should file and serve any application for summary dismissal by a certain time and that that matter would be heard this day.

6. When the amended application was filed on 18 March 2003, it became clear that in addition to amending the content of the application a further amendment was sought to change the identity of the Applicants before this court. Rather than the Applicant being Geoffrey Stokes on behalf of the Ninga Mia Christian Fellowship and the Wongutha Birni Aboriginal Corporation, the Applicant now seeks leave to in fact alter the name of the Applicant to read Geoffrey Stokes, Patricia Ranger and a number of other named individuals. It is common ground that effectively what is now being sought in addition to the order that was granted by me on 5 February 2003 is to in fact substitute in the named Applicants those other persons in addition to Mr Geoffrey Stokes and to delete reference to the Fellowship and Corporation.

7. The application to amend the name of the Applicants is opposed by both the First Respondent and the Second Respondent. I have heard submissions and received submissions in writing from all parties. The First Respondent has opposed the amendment - that is, the amendment to include the names to which I have referred. It has opposed it on the grounds that those persons now sought to be named in this application were not persons named as parties to the original complaint and, perhaps more significantly, did not participate in the complaint proceedings before the Commission.

8. There is no statement, it is said, of any complaint or the nature of the alleged racially discriminatory act put to the First Respondent in the original complaint by any of the now new named individuals except for two of those persons - namely, Geoffrey Stokes and Duncan Bilson. It is submitted that the new named Applicants do not have standing to bring these proceedings on their own behalf because they were not parties to the original complaint and did not participate in the HREOC proceedings. It is further submitted they are not affected persons for the purposes of section 3 of the HREOC Act and are not entitled to institute proceedings pursuant to section 46PO(1) of that Act.

9. This is not a case where the provisions of the HREOC Act would enable this court to amend in order to substitute parties to the proceedings. Whilst there are written submissions to suggest that there was insufficient before the Commission to suggest that Mr Geoffrey Stokes brought the complaint on his own behalf, it seems clear to me throughout the course of submissions that that matter is now not vigorously or strenuously pursued.

10. Lest there be any doubt, it seems clear to me on the material before me that Geoffrey Stokes at all material times was a person aggrieved or a person affected and a person who had brought the complaint, at least on his own behalf. In my view, there can be no issue that he remains properly an Applicant before this court. The real issue is whether or not the court should permit the Applicant to delete the reference to the Fellowship and the Corporation and insert the names of the other individuals.

11. In response to the application I should add that the Second Respondent likewise opposes the amendment and does so on similar grounds to those raised and referred to by me in relation to the First Respondent. Again I indicate that it does not seem now to be significantly pursued that Mr Stokes could not possibly be a person who could bring this application on his own behalf, and that much in my view appears very clear from an interpretation of section 46PR of the HREOC Act. The main thrust of the opposition to this application is that the individuals now named were individuals who were not able to actively participate in the proceedings before the Commission.

12. The process of allowing amendment to add new parties is a process which is available to all courts, including this court. The rules of this court by its Rule 7.01 certainly provide a general power to amend. It is not necessary for me to add that indeed the court has a power to amend in such a way as to add new parties. It is however appropriate that I note that in a matter of this kind where the application to this court is effectively an application which I would describe as being triggered by a termination notice by the Commission pursuant to section 46PH(2) of the HREOC Act, it is important to note that the complaint before this court has to be the same or substantially the same as that before the Commission.

13. It is equally important, in my view, for the reasons I stated in the matter of Speirs v Darling Range Brewing Co Pty Ltd and Ors [2002] FMCA 126, that parties who are before the Commission on a complaint ought to be given the full opportunity to participate in the inquiry by a President pursuant to section 46PF of the HREOC Act, and more importantly perhaps to participate in or have the opportunity to participate in conciliation.

14. I have no doubt that the conciliation process in the Commission is significant and I otherwise adopt what I had said in paragraphs 38 and 39 of the Speirs case. In that case the Applicant had sought, however, to add new individuals who had not been named as part of the complaint before HREOC. They had not been part of the conciliation process or, indeed, identified with any degree of particularity in that process, save that their names were mentioned as part of the factual background and as individuals, but they were not parties to that complaint.

15. There is no doubt that in the present case the complaint which I have referred to that was lodged electronically by Mr Stokes was then said to be a complaint lodged on behalf of someone else. There is further no doubt that he then lodged that complaint on behalf of the Fellowship and the Corporation to which I have referred.

16. When one reads, however, the reasons for the complaint, it is clear to me that at all material times the complaint related to a complaint by a group of Aboriginal people and it is equally clear to me that they were people who belonged to one or other of the organisations on whose behalf it was said the complaint was made. In support of the application to amend an affidavit has been filed by the Applicant sworn by Geoffrey Donald Stokes on 24 April 2003. In that affidavit Mr Stokes states:

"All of the individuals named as applicants to the amended application were at the time of the Rhythms of the Outback Festival and Parade the subject of these proceedings members of the Ninga Mia Christian Fellowship and/or the Wongutha Birni Aboriginal Corporation. All such individuals took part in the parade and as such were part of the group on whose behalf I made an online complaint of racial discrimination to the Human Rights and Equal Opportunity Commission, HREOC, on 13 April 2002."

"I refer to the details of the complaint provided to HREOC under the section What happened on page 3 of the online complaint form dated 13 April 2002. The individual applicants of the amended application are amongst the 120 people referred to in that description of the complaint group."

18. Relying upon this affidavit I conclude that the nature of the complaint has not altered. The nature and extent of the persons on whose behalf the complaint was originally lodged has not altered. While some argument has been pursued by the Second Respondent's representative that what is now suggested is identification of a subset of the group or a subset of the two named organisations, that is, the Fellowship and the Corporation, I am satisfied that effectively all that has occurred is that individuals are now named as part of the group, they form a group in their own right and, for the present purposes, form a group which could properly be regarded as that group who were involved in the precise activity which was the subject of the complaint and, in accepting the affidavit of Mr Stokes for the present purposes, are all part of the group sufficiently identified in that complaint, that is, at the relevant time all persons who were part of either the Corporation or the Fellowship. More importantly they are now said to be identified as those persons part of the group who participated in the parade and who are now said properly to be those persons who were aggrieved who in my view I am entitled to conclude were likewise persons aggrieved and part of the group of the complaint that was before the Commission.

19. It would be unduly technical in my view and inappropriate to impose in a matter of this kind, particularly arising out of human rights legislation, an unduly technical interpretation of either corporate identity or identity of the group. I have been referred to what His Honour Kirby J said in the High Court decision of IW v City of Perth & ors (1996-7), 191 CLR at page 77:

"First, the fact of corporate personality should not be applied to subvert the purpose of the legislation designed, as it is, to protect individuals against discrimination. Secondly, in apply rights-protective legislation, such as the Act, courts will look to the actual effect of the alleged discriminatory conduct rather than only to its formal legal impact."

20. His Honour then refers to the judgment of Stephen J as follows:

"While it is not certain that when he refused approval of the transfer the Minister knew of the existence of Mr Koowarta, he clearly knew that the property was to be occupied by Aborigines. That was the very ground for his refusal...It is not, I think, to the point that, as a matter of form, what the Minister withheld was approval of a transfer to the Aboriginal Land Fund Commission. The Minister's reasons for refusal disclose that he regarded approval as involving use of the property by Aborigines and refusal of approval as preventing that use."

"Now apply the foregoing to the present circumstances. In the case of an incorporated association such as PLWA, acting on behalf of its members, all of whom were necessarily `impaired', it requires no surgery to treat the refusal to provide them to the members. Difficulties could certainly arise where there was not such an exact identity between the members and the corporate applicant."

22. Applying the principles set out in His Honour's decision to the present case, effectively all that has occurred in the present complaint is that Mr Stokes has identified two formal groups which provided sufficient identity in the present case to at least indicate the group of Aboriginals who were claimed to be persons affected by the alleged discrimination and/or persons who could properly be said to be aggrieved by that alleged discrimination.

23. I was further referred to the decision of the Full Court of the Federal Court in the matter of Arnold v Queensland & Anor [1987] FCA 148; (1987) 73 ALR 607. In particular, I was referred to page 613 of the decision of Wilcox J, where His Honour says:

"In a case where the members of a firm or an unincorporated association are numerous it is customary to name one or more of the members as a representative of them all. This was not done in the present case; possibly because, there being no provision for costs of the hearing before the tribunal and no question of the enforcement of any order of the tribunal against the Association or any of its members, it seemed unnecessary so to do. But in this court there is no provision for litigation by unincorporated associations otherwise than by a representative."

24. His Honour refers to O.4 Rule 4(1)(b). I should interpolate here that in the absence of a specific rule in this court, the rules of the Federal Court apply, with appropriate modifications. His Honour goes on to say, at page 613, the following:

"There being no question of prejudice to others, it is appropriate to accede now to the application made on behalf of the applicant and to order that the title to the notice of appeal and to all documents subsequently filed in the matter, be amended nunc pro tunc by substituting for the name of the applicant as thereon shown the words Jane Suzanne Arnold on behalf of Australians for Animals."

25. I was further referred to the decision of Her Honour Branson J in the matter of Commonwealth v Sex Discrimination Commissioner [1998] FCA 1607; (1998) 90 FCR 179. At page 188 Her Honour in that case said the following:

"A complaint under section 50 of the act is not to be equated to a criminal complaint or information, nor to a pleading in a civil legal proceeding."

26. It is fair to say in the present case that both Counsel for the Respondents conceded that this statement of the law as it applied in that case appears to be correct. What, of course, is submitted for and on behalf of the Respondents is that in the present case this is not merely a matter of adjusting a pleading or the nature of a complaint but is more substantive in the sense of introducing what is submitted to be new Applicants who were not part of the complaint before the Commission. Brown J further states in relation to the identity of a Respondent:

"In many cases a complainant may not be in the position to do this; that is, to accurately name the person or entity against whom the complaint is made. However, in my view whether by name, description or necessary deduction from such details of the allegedly unlawful act as is set in the complaint, the complainant must identify the respondent party or parties to the complaint."

27. As I pointed out during the course of submissions made by the parties, this application is somewhat different to applications which have otherwise been dealt with and obviously in particular the matter of Speirs to which I have referred and indeed the judgment of Branson J to which I have just referred.

28. In the present case, it is my view that the application does no more than to identify with greater specificity the individuals who are now said to be part of the group which is said to be the subject of the complaint for discrimination. In my view, at all material times Mr Stokes pursuant to the relevant provisions of the HREOC Act to which I have referred is able to bring the claim not only on his own behalf but on behalf of this group. It is not necessary to name each and every member of the group affected. It is sufficient in my view to name a representative number of that group and indeed it is not even necessary that each be represented but, rather, that each were part of the group. I accept for the present purposes, relying on the affidavit of Mr Stokes, that that is the case.

29. The identity of those persons was sufficiently referred to in my view in the complaint as it was drafted in the electronic form by Mr Stokes, given that each and every one of them was said to be at all material times members of either the Fellowship or the Corporation to which the complainant then referred. I can see no prejudice in the present case in allowing the amendment. It seems to me that it is somewhat artificial to suggest that because those persons were not individually named in the complaint before the Commission, they have not participated in the conciliation process and that that in a sense has undermined what otherwise I have held to be an appropriate opportunity for all parties to participate in; namely, the process of trying to resolve matters in accordance with the conciliation provisions of the HREOC Act.

30. In the present case, I am satisfied that at all material times the person who lodged the complaint for and on behalf of this group, albeit changing the precise identity of those now sought to be named, has had the opportunity to participate in the conciliation proceedings and likewise the Respondents have also had the opportunity to fully participate.

31. By naming the individuals now in this application, there is no significant or substantive alteration to the identity of the group. It is simply naming individuals as part of that group. Ironically it might provide indeed some advantage to the Respondents, rather than have a representative action which could perhaps have been brought by Mr Stokes on his own behalf and as a representative of individuals by now at least naming individuals who of course are individual Applicants, each of whom may well be subject to any potential adverse order, including any order for costs. Therefore, rather than there being a prejudice, there is indeed ironically a potential benefit to the Respondents in allowing the application. For those reasons, the application for amendment will be allowed.

32. In this matter I have permitted the Applicant to amend the application and specifically the issue before the court was the name of the Applicants to be added in lieu of the reference to the Fellowship and Corporation to which I have referred. The Applicants claim that having regard to the duration of the hearing on this issue and the matters raised for and on behalf of both Respondents, the Applicants should be permitted to have the benefit of an order for costs. That application is opposed by both Respondents. It is submitted by Ms McKenzie on behalf of the First Respondent that it would be inappropriate to make an order for costs, particularly in circumstances where the affidavit material of Mr Stokes was filed on 29 April 2003.

33. The court, in reaching its decision on allowing the amendment has relied significantly on that affidavit material. It has further been submitted that in any event the requirement for an amendment is a requirement brought about by what is described as an inaccurate or at least an inappropriate name on the original application, with that name now being required to be amended by the insertion of the other individuals.

34. In my view, there is some force in what is said by Ms McKenzie, adopted by Mr Harben, in regard to the affidavit evidence. It seems to me that in a sense the amendment both sought and now allowed may on one interpretation of events have been unnecessary but in the circumstances what it has done is to at least avoid the necessity of there being an argument now in relation to issues of corporate identity and in particular has in a sense removed the need for there to be debate in relation to at least one aspect of what is still a pending application for summary dismissal.

35. To that extent, the application now granted has assisted the administration of justice. This is an application where the court has exercised its discretion and granted and indulgence to the Applicants. It is in my view correct to say that a great deal of reliance had to be placed upon the recent affidavit of Mr Stokes.

36. In weighing up all those factors and exercising the discretion I undoubtedly have in relation to costs, it is my view that the correct order is the order sought by Ms McKenzie; that is, that there be no order as to costs in relation to this application for amendment.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of McInnis FM