does the second application cover the same acts of alleged discrimination as the first application?
7 It was conceded by the respondents that the Federal Magistrate had erred in relation to some of the facts found by him. In particular, the Federal Magistrate found that the second application was lodged on 31 July 2009 when in fact it was lodged on 13 January 2010. His Honour further erred in finding that, what he described as the "cut-off dates", of the first complaint were the same as those of the second complaint. What the Federal Magistrate meant by "cut-off date" was the date upon which the complaint was filed in the Commission. It is conceded by the respondents that his Honour erred and should have found that the first complaint and the second complaint were not filed on the same date, but that in its amended form the first complaint was filed on 31 July 2009 and that the second complaint was filed on 13 January 2010.
8 Those errors ("the factual errors") are of some importance to the disposition of the appeal. As I will explain, the period covered by each complaint bears upon the central challenge made that the Federal Magistrate erred in concluding that the first and second applications deal with the same acts of alleged discrimination.
9 It needs to be appreciated that this conclusion of the Federal Magistrate is, with respect to his Honour, a loose way of expressing what his Honour actually meant. The first application had been brought by an application and was later supplemented by contentions of fact and law. The second application was brought by an application which did not set out the acts of discrimination other than to say that those matters will be dealt with in a statement of claim. A statement of claim had not been filed at the time of the Federal Magistrate's judgment and nor had any other document been filed setting out the allegations or contentions as to the acts of discrimination alleged. It was not possible in that context to say that the first and second applications covered the same acts of alleged discrimination. It appears to me that what the Federal Magistrate meant by that conclusion, was that there was no capacity for Turner to agitate in the second application claims of discrimination which had not already been agitated in the first application. The basis for that determination was the Federal Magistrate's acceptance of the submissions of the respondents that the first complaint and the second complaint covered that same ground and that because of the operation of s 46PO(3) of the AHRC Act, the acts of discrimination that could be the subject of each of the applications before the Federal Magistrates Court were limited to dealing with the alleged unlawful discrimination the subject of the underlying complaint. Accordingly, if the unlawful discrimination raised by the second complaint was the same as that raised in the first complaint, the scope of the second application could not travel beyond that of the first.
10 The correctness of the Federal Magistrate's conclusion depends then on whether the alleged unlawful discrimination raised in the second complaint was in fact no wider than the alleged unlawful discrimination raised in the first complaint. In that respect, I use the word "raised" as shorthand for the matters the subject of the complaint as specified by s 46PO(3) of the AHRC Act. If the discrimination raised in the second complaint was wider than the first, the Federal Magistrate's conclusion that the scope of the first application and that of the second application are the same would be erroneous.
11 In my view the alleged acts of unlawful discrimination in the second complaint are wider than those in the first complaint. Whilst the nature of the discrimination alleged is the same, the period over which the discrimination is alleged to have occurred is quite different. In relation to the first complaint, the period of the alleged discrimination is 30 March 2009 until the date of the filing of the amended complaint on 31 July 2009. In relation to the second complaint, the period of alleged acts of unlawful discrimination commenced on 30 March 2009 and ended on the date of the filing of that complaint which was 11 January 2010. The second complaint therefore covers the period 1 August 2009 to 11 January 2010, which is not covered by the first complaint. In that respect the allegations of unlawful discrimination in the second complaint are wider in point of time than those alleged in the first complaint.
12 The respondents contended that the factual errors made by the Federal Magistrate are of no consequence. It was contended that the Federal Magistrate based his conclusion that the first and second complaints were the same, not on his erroneous findings that they covered the same period, but on the fact that the factual assertions contained in the first complaint were simply repeated in the second complaint and that both complaints were therefore the same. There is force in that submission. His Honour's reasons for judgment identify the argument put to him by the second respondent. His Honour said at [17] that he accepted the submission by the second respondent that "MLG915/2010 essentially replicates the factual assertions as agitated in MLG90/2010".
13 Both the first complaint and the second complaint were made by Turner filing with the Commission a document headed "Complaint" which in a pleading like fashion set out the nature of the complaint. Each of the first complaint and the second complaint contained a section headed "The Discrimination". In each complaint, that section contained the following two paragraphs in identical terms, which for ease of reference I have re-numbered as paragraphs 1 and 2:
1. The Respondents are not providing the assistance the complainant requires
Particulars
a) The Complainant contracted with Yarraview Nursery, which is a service arm of Knoxbrooke, in February 2009 to provide him services and vocational training.
b) The Next Friend formally advised Yarra View Nursery staff, and repeatedly advised DHS, of the requirement for the Complainant to be communicated with through Auslan.
c) On 10 October 2008 DHS advised the Next Friend that it would allocate a once off/finite sum of money to Knoxbrooke in order that it could provide Auslan access to the Complainant.
d) On 30th March 2009 DHS advised the Next Friend that the sum of money had run out, and that access to the services/training would no longer be provided, whether the Complainant could access the services/training or not.
e) Services were provided to the Complainant without him being able to properly access them on the following dates: 30 March 2009, 31 March 2009, and 3 April 2009.
f) The Respondents propose to continue providing the services/training in an inaccessible manner to the Complainant.
g) The Respondents have offered to train staff providing services to the Complainant in a level of Auslan which is insufficient, and to which they have been advised is not adequate to allow its staff to communicate effectively with the Complainant.
2. The discrimination is continuing and is proposed.
14 The respondents contend that these paragraphs are the factual assertions that the Federal Magistrate was referring to when he concluded that the second complaint essentially replicates the factual assertions agitated in the first.
15 Those factual assertions, so the respondents contend, are confined to allegations that the respondents failed to provide assistance to Turner on three days only - 30 and 31 March 2009 and 3 April 2009. That contention is based on the particulars to paragraph 1 and on reading paragraph 2 as referring to the continuance of the discrimination from the date of the filing of the complaint and not from the dates specified in the particulars. Thus, so the respondents contend, each of the complaints is to be read and understood as alleging unlawful discrimination by reason of a failure to provide Turner with assistance over the same three days. For that reason, the respondents contend that the scope of the second complaint is no wider than that of the first and that therefore the Federal Magistrate was correct to conclude that the potential scope of the second application can be no wider than that of the first application.
16 Although the Federal Magistrate's reasons for judgment do not expressly put the reasoning which the respondents' contentions ascribe to his Honour, I accept that such reasoning is implicit in the conclusion reached by his Honour. The difficulty for the respondents however is that the approach taken misconstrues what is contemplated by s 46PO(3) of the AHRC Act.
17 The ambit of a complaint made to the Commission is to be ascertained for the purpose of s 46PO(3) by considering the shape it had assumed at the time of its termination, not by reference to its initial form and not as though what is being construed is a legal pleading. The broad approach contemplated by s 46PO(3) was identified by Marshall, Rares and Flick JJ in Dye v Commonwealth Securities Limited(No 2) [2010] FCAFC 118 at [46] - [48] as follows:
46. Section 46PO(3) contemplates some ambit for additional conduct, acts, omissions or practices to constitute unlawful discrimination. In Travers v State of New South Wales [2000] FCA 1565 at [8] Lehane J referred to the terms of s 46PO(3) as suggesting a degree of flexibility. However, s 46PO(3) operates as an important constraint upon the ability of a complainant later to seek relief in the Court in respect of a complaint he or she had not previously raised for consideration by the Commission. As Lehane J cautioned, the ability to make an application to the Court "should not be used to launch an application … effectively bypassing the procedures provided by the legislation": Travers [2000] FCA 1565 at [8]. His Honour also followed the warning of Branson J in Commonwealth v Sex Discrimination Commissioner (1998) 90 FCR 179 at 188B-D, that usually a complaint will not be drawn by a lawyer and it ought not be construed as a pleading. Justice Branson held also that a complaint under s 46P was not to be equated to a criminal complaint or information: 90 FCR at 188B. Her Honour followed Merkel J's decision in Simplot Australia Pty Ltd v Human Rights and Equal Opportunity Commission (1996) 69 FCR 90 at 93-94 that a complaint in writing did not need to include any details of the alleged unlawful discrimination (see now s 46P of the AHRC Act).
47. As Lehane J said in Travers [2006] FCA 1565 at [8], the ambit of the complaint may be ascertained for the purpose of s 46PO(3), not by considering its initial form, but by considering the shape it had assumed at the time of its termination: see too Simplot 69 FCR at 94F-G. In Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573 at 580-581 [35]-[41] Katz J considered the construction of s 46PO(3). He held that s 46PO(3)(b) permitted an applicant to allege different facts in proceedings in the Court from those alleged in the terminated complaint, provided that those new facts were not different in substance from those formerly alleged: Charles 105 FCR at 580 [39].
48. The unlawful discrimination referred to in s 46PO(3) consists of any acts, omissions or practices alleged in the complaint that amount to unlawful discrimination as defined in s 3(1) of the AHRC Act. It is not appropriate for a court considering an application for leave to amend to preclude an amendment that raises an arguable claim for relief, especially where the terms of s 46PO(3)(b) (in particular) permit of some flexibility. And, in applying the terms of s 46PO(3), the terms of a complaint made to the Commission should not be read with the same strictures as apply to a pleading in a Court. Not only was this approach implicitly recognised by the flexibility of the terms employed in the sub-section itself, s 46PR required an approach "not bound by technicality". It provided in relation to, among other provisions, s 46PO:
"Court not bound by technicalities
46PR In proceedings under this Division, the Federal Court and the Federal Magistrates Court are not bound by technicalities or legal forms. This section has effect subject to Chapter III of the Constitution."
The "substantive directions" given by s 46PO(3) must still be respected, notwithstanding the provisions of s 46PR: Maghiar v Western Australia [2002] FCA 262 at [18] per French J.
18 Further, it is clear from [49] of the reasons for judgment in Dye that the way in which the Commission described the subject of the complaint in its notice of termination, can assist in identifying the shape that the complaint had assumed at the time of its termination.
19 It seems clear that in this case, the Federal Magistrate relied on no more than a comparison of the two forms of each of the complaints, construed each as though it was a pleading and in so doing adopted a strict approach with little or no reference to context or purpose.
20 A purposive reading of either the first or second complaint would not have construed Turner's complaint as being confined to a lack of provision of assistance over three specified dates and no longer. When the complaints are read in their entirety, it is evident that the essence of Turner's complaint is that as an ongoing student of the second respondent, he has been unable to access the educational/vocational training services provided, as the assistance that he needs in order to properly access those services has been denied to him because the respondents are not providing the assistance that Turner requires. That assistance is identified as the provision of an Auslan interpreter or a staff member fluent or competent in Auslan. Whilst the particulars to the paragraph in which the lack of assistance is complained of is badly drafted, when read in the context of the whole of the complaint, it is nevertheless apparent that what Turner complained about was the lack of provision of assistance to him from 30 March 2009 and not simply on the three dates specified in sub-particular (e). So much would have been readily understood by the respondents. The letters of termination from the Commission also reveal an understanding that the extent of the complaint was not confined to the three days specified in sub-particular (e). The letter of termination for the first complaint specifically states that Turner amended the complaint "to extend the time period covered" to 31 July 2009. The letter of termination in relation to the second complaint identifies the reason that the second complaint was brought. It is clear from what is there said that it was understood that the purpose of the second complaint was to extend the period of complaint relating to the allegations of discrimination.
21 When a purposive examination is made of the first and second complaints including the letters of the Commission terminating each of those complaints, it is apparent that Turner was not merely complaining of the failure of the respondents to provide him with an Auslan interpreter or a staff member fluent or competent in Auslan in relation to the three days identified in the particulars. What Turner was complaining about was the failure of the respondents to provide that assistance from 30 March 2009 and extending to the time at which each of the complaints was lodged. Accordingly, the second complaint included complaints of acts of discrimination in the period 1 August 2009 to 11 January 2010. Those acts of discrimination were not dealt with in the first complaint.
22 For those reasons, the potential scope of the second application is wider than the scope of the first and it was wrong for the Federal Magistrate to conclude that both were the same and that therefore the second application had no utility and simply vexed the respondents.