Baird v State of Queensland

[2005] FCA 1245

FEDERAL COURT OF AUSTRALIA

Baird v State of Queensland [2005] FCA 1245

JAMES STANLEY BAIRD, MARIE CREEK, FRANK TAYLEY, HENRY WALKER, HENRY DEERAL, EDGAR IVAN GIBSON, ANITA KAREN GORDON AND ELLA WOIBO v STATE OF QUEENSLAND

Q 91 OF 2003

DOWSETT J
30 AUGUST 2005
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 91 OF 2003

BETWEEN:

JAMES STANLEY BAIRD
FIRST APPLICANT

MARIE CREEK
SECOND APPLICANT

FRANK TAYLEY
THIRD APPLICANT

HENRY WALKER
FOURTH APPLICANT

HENRY DEERAL
FIFTH APPLICANT

EDGAR IVAN GIBSON
SIXTH APPLICANT

ANITA KAREN GORDON
SEVENTH APPLICANT

ELLA WOIBO
EIGHTH APPLICANT

AND:

STATE OF QUEENSLAND
RESPONDENT

JUDGE:

DOWSETT J

DATE OF ORDER:

30 AUGUST 2005

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.The applicants pay the respondent’s costs of the proceedings, including reserved costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 91 OF 2003

BETWEEN:

JAMES STANLEY BAIRD
FIRST APPLICANT

MARIE CREEK
SECOND APPLICANT

FRANK TAYLEY
THIRD APPLICANT

HENRY WALKER
FOURTH APPLICANT

HENRY DEERAL
FIFTH APPLICANT

EDGAR IVAN GIBSON
SIXTH APPLICANT

ANITA KAREN GORDON
SEVENTH APPLICANT

ELLA WOIBO
EIGHTH APPLICANT

AND:

STATE OF QUEENSLAND
RESPONDENT

JUDGE:	DOWSETT J
DATE:	30 AUGUST 2005
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. In the case of Ms Woibo, I feel compelled to find that the evidence does not satisfy me that she has suffered any loss in terms of wages.  I say that for the following reasons.  Her calling was, at relevant times, award-free.  The guaranteed minimum wage in Queensland at those times applied only to workers who were working under awards.  There is therefore no demonstrated loss of wages, based upon the methodology identified at the trial, flowing from the alleged discrimination.  The possibility of lost wages may, nonetheless, be a factor relevant to the assessment of another head of damage.  That is a matter which can be addressed at a later time, should the need arise.  

2. After an extensive trial in which the applicants have been unsuccessful, it is submitted on their behalf that I should make no order as to costs.  The submission is based on the fact that, in the course of my reasons, I have made numerous findings to the effect that the State of Queensland was aware, at all material times, that the Queensland industrial legislation and the Racial Discrimination Act 1975 (Cth) were not being observed in the operation of certain church missions.

3. It is submitted that in some cases it has been said that applicants for relief in connection with Australia’s obligations arising under international treaties should not be discouraged from seeking appropriate relief by adverse orders as to costs.  The Racial Discrimination Act introduced into Australian municipal law, aspects of international obligations under treaties.  The difficulty that I have with the argument is that the Racial Discrimination Act does not have any status different from that of any other Federal legislation.  The Commonwealth Parliament has not suggested, in any way, that litigation pursuant to it should be treated as special.  In those circumstances, I cannot see why the exercise of the discretion as to costs in respect of litigation arising under that Act ought be any different from its exercise in other proceedings.

4. However, having said that, I refer to the concerns which I have expressed as to the conduct of the government of the day.  I stand by those observations.  They are, to my mind, particularly serious, given that they concerned the disadvantage suffered by a peculiarly vulnerable group within the community, for which the Queensland Government undoubtedly had special moral responsibility.  I take that matter into account in considering the question of costs.

5. On the other hand, my conclusion, rightly or wrongly, is that these proceedings are misconceived.  That part of the proceedings which depended upon s 15 of the RDA was completely without foundation. On the facts, however they were viewed, it was impossible to infer that the relationship of employment existed between the State of Queensland and any of the applicants.  Although the same criticism cannot be made of the claim under s 9, it also involved significant deficiencies to which I have referred in my reasons.  In the circumstances, I am inclined to the view that the proper course is to order that costs follow the event.  I propose, therefore, to order that the applicants pay the respondent’s costs of these proceedings.  I should say, however, that, in view of the observations which have been made as to the nature of past government attitudes towards indigenous people, as evidenced in these proceedings, and the breach of what I consider to have been a moral duty associated with the circumstances relevant to these proceedings, it would be appropriate for the present government to consider not enforcing such order, at least as to some part thereof.  This is not a course which I would normally follow.  It is not generally part of the judicial function to urge moral considerations upon government.  That course can too easily reflect personal views rather than matters of community interest and importance.  I hope that I am not being self-indulgent in making this recommendation.

6. The application will be dismissed.  I order the applicants to pay the respondent’s costs of the proceedings, including reserved costs.  I will, at a later time, publish supplementary reasons concerning the issue of the application of the Limitation of Actions Act.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:             6 September 2005

Counsel for the First to Eighth Applicants:	Mr D P O’Gorman
Solicitor for the First to Fourth Applicants:	Robert Bax & Associates
Solicitor for the Fifth to Eighth Applicants:	V J Butler & Associates
Counsel for the Respondent:	Mr J E Murdoch SC Mr C J Murdoch
Solicitor for the Respondent:	Crown Law
Date of Hearing:	30 August 2005
Date of Judgment:	30 August 2005