Bropho v State of Western Australia

[2005] FCA 560

FEDERAL COURT OF AUSTRALIA

Bropho v State of Western Australia [2005] FCA 560

PROCEDURE – racial discrimination – legislation and directives prohibiting Aboriginal persons exercising functions of care, control and management of reserve, requiring them to leave and not enter the reserve - motion to strike out aspects of defence – offers of compensation and alternative accommodation not arguably irrelevant to defence – public interest and justification not arguably irrelevant to defence – defences to allegation of discrimination in respect of enactment not arguably irrelevant – particulars to be addressed specifically if required

Racial Discrimination Act 1975 (Cth) ss 8(1), 9(1), 9(1A)(a), 10, 10(1)

Land Administration Act 1997 (WA) ss 50, 204
Reserves (Reserve 43131) Act 2003 (WA)

Federal Court Rules O 11 r 16

Commonwealth Constitution s 109

Macquarie Dictionary, 2^nd rev edn

R Dubler, ‘Direct discrimination and a defence of reasonable justification’ (2003) 77 ALJ 514

Bropho v State of Western Australia [2004] FCA 1209 cited
Butler v Countrywide Finance Ltd [1993] 3 NZLR 623 cited
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 cited
Gerhardy v Brown (1985) 159 CLR 70 cited
Goldsmith v Sandilands (2002) 190 ALR 370 cited
Hodges v State of New South Wales (1988) 77 ALR 1 cited
Mabo v Queensland (1988) 166 CLR 186 cited
Macabenta v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 202 cited
Melkman v Commissioner of Taxation (1988) 20 FCR 331 cited
Metroplaza Pty Ltd v Girvan NSW Pty Ltd (in liq) (1993) ATPR 41-241 cited
Murex Diagnostics Australia Pty Ltd v Chiron Corporation (1995) 55 FCR 194 cited
Nguyen v Refugee Review Tribunal (1997) 74 FCR 311 cited
Orchard v Comrie (1998) 80 IR 76 cited
Orison Pty Ltd v Strategic Minerals Corporation NL (1987) 77 ALR 141 cited
Purvis v State of New South Wales (2003) 202 ALR 133 cited
Reed International Books Australia Pty Ltd (t/a Butterworths) v King & Prior Pty Ltd (1993) 44 FCR 587 cited
Sahak v Minister for Immigration and Multicultural Affairs (2002) 123 FCR 514 cited
Spedley Securities Ltd (in liq) v Greater Investments Pty Ltd (1992) 30 NSWLR 185 cited
Turner v Kinian Pty Ltd (unreported, French J, 19 August 1992) cited
Turner v Leda Commercial Properties Pty Ltd (2000) 97 FCR 313 cited
Warne v Genex Corporation Pty Ltd (1996) 35 IPR 284 cited
Webster v Lampard (1993) 177 CLR 598 cited
Western Australia v Commonwealth (1995) 183 CLR 373 cited
Western Australia v Ward (2002) 213 CLR 1 cited

BELLA BROPHO ON BEHALF OF THE MEMBERS OF THE SWAN VALLEY NYUNGAH COMMUNITY ABORIGINAL CORPORATION AND ABORIGINAL INHABITANTS OF RESERVE 43131 v STATE OF WESTERN AUSTRALIA, ABORIGINAL AFFAIRS PLANNING AUTHORITY and BARRY CHARLES JAMESON
WAD 157 of 2003

NICHOLSON J
6 MAY 2005
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 157 OF 2003

BETWEEN:

BELLA BROPHO ON BEHALF OF THE MEMBERS OF THE SWAN VALLEY NYUNGAH COMMUNITY ABORIGINAL CORPORATION AND ABORIGINAL INHABITANTS OF RESERVE 43131
APPLICANT

AND:

STATE OF WESTERN AUSTRALIA
FIRST RESPONDENT

ABORIGINAL AFFAIRS PLANNING AUTHORITY
SECOND RESPONDENT

BARRY CHARLES JAMESON
THIRD RESPONDENT

JUDGE:

NICHOLSON J

DATE OF ORDER:

6 MAY 2005

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.Paragraphs 1 and 2 of the applicant’s re-amended notice of motion dated 23 February 2005 be dismissed.

2.The applicant to pay the respondents’ costs on those paragraphs of the re-amended notice of motion.

AND THE COURT FURTHER DIRECTS THAT:

A.The applicant have leave to file and serve amended submissions in relation to paragraphs 3 to 13 of the applicant’s re-amended notice of motion on or before 4.00 pm on 13 May 2005.

B.The first, second and third respondents have leave to file and serve amended submissions in relation to paragraphs 3 to 13 of the applicants re-amended notice of motion on or before 4.00 pm on 20 May 2005.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 157 OF 2003

BETWEEN:

BELLA BROPHO ON BEHALF OF THE MEMBERS OF THE SWAN VALLEY NYUNGAH COMMUNITY ABORIGINAL CORPORATION AND ABORIGINAL INHABITANTS OF RESERVE 43131
APPLICANT

AND:

STATE OF WESTERN AUSTRALIA
FIRST RESPONDENT

ABORIGINAL AFFAIRS PLANNING AUTHORITY
SECOND RESPONDENT

BARRY CHARLES JAMESON
THIRD RESPONDENT

JUDGE:	NICHOLSON J
DATE:	6 MAY 2005
PLACE:	PERTH

REASONS FOR JUDGMENT

1. These reasons address pars 1 and 2 of the applicant’s re-amended notice of motion filed on 23 February 2005. 

2. The general nature of the litigation has previously been described in reasons published on 15 September 2004 (Bropho v State of Western Australia [2004] FCA 1209). In those reasons reference was made to what was then the applicant’s amended notice of motion for strike out. Following directions and subsequent compliance with them, it is now appropriate to decide the issues raised by the re-amended notice of motion.

3. The first paragraph of the applicant’s re-amended notice of motion seeks a strike out in relation to the respondents’ amended defence in the following terms:

   ‘1.The following portions of the Amended Defence of the First, Second and Third Respondents be struck out pursuant to Order 11 Rule 16 of the Federal Court Rules on the grounds that they disclose no reasonable defence or have a tendency to cause prejudice, embarrassment or delay in the proceedings:

   (a)sub-paragraph 23(db)(ii) and 23(db)(iii);

   (b)sub-paragraphs 26(c)(ii) and 26(c)(iii); and

   (c)paragraph 32 save for the words “The Respondents deny paragraph 43 of the Re-Amended Statement of Claim”.’

4. Paragraph 2 of the applicant’s re-amended notice of motion seeks in the alternative further and better particulars of the matters pleaded in pars 23(db)(iii), 26(c)(iii) and 32(a) of the amended defence and par 4 and par 5 of the respondents’ answer to applicant’s request for further and better particulars of defence dated 12 November 2003. 

5. Paragraph 23(db)(ii) and par 23(db)(iii) are pleaded in defence to par 31 of the applicant’s substituted statement of claim.  They plead that the Reserves (Reserve 43131) Act 2003 (WA) arbitrarily deprives the applicant and those whom she represents of the right to manage and otherwise exercise ownership rights in relation to the reserve. The two paragraphs deny that any deprivation of a right to manage and otherwise exercise ownership rights in relation to the Reserve was arbitrary. They say that in particular:

   ‘…

   (ii)the Applicant and those whom she represents were compensated to the extent that:

   (A)they were members of the Swan Valley Corporation and that corporation had a right to compensation for improvements on the Reserve under section 50 and Part 10 of the Land Administration Act 1997 (WA); and

   (B)the Respondents offered to provide alternative accommodation for Aboriginal inhabitants of the Reserve; and

   (iii)the Reserve Act was:

   (A)in the public interest, further or alternatively

   (B)a reasonable response to the First Respondents’ reasonable concerns about the management of the Reserve and about unlawful conduct by persons on the Reserve and interference with the human rights of Aboriginal inhabitants of the Reserve; and

   …’

6. Paragraph 26(c)(ii) and par 26(c)(iii) address par 37 of the substituted statement of claim.  Paragraph 37 alleges an arbitrary deprivation of the right to freedom of movement and residence by the applicant and those whom she represents.  The paragraphs in issue deny any deprivation of such rights within the border of Western Australia or within the Reserve was arbitrary and, in particular, raise the same two defences as appear in par 23(db)(ii) and 23(db)(iii). 

7. Paragraph 32 of the amended defence is pleaded in denial of par 43 of the re-amended statement of claim.  That latter paragraph alleges that by reason of matters pleaded, the Reserves Act is inconsistent with s 10(1) of the Racial Discrimination Act 1975 (Cth) and is therefore invalid pursuant to s 109 of the Commonwealth Constitution.  The strike out motion seeks to delete all but the denial of that claim, which is made in the following terms:

   ‘… and in particular say that if, which is denied, by reason of the Reserves Act the Applicant and those whom she represents do not enjoy the right to manage and otherwise exercise ownership rights or the right not to be arbitrarily deprived of the right to manage and otherwise exercise ownership rights or the right to freedom of movement and residence or the right not to be arbitrarily deprived of freedom of movement and residence or the right to equal treatment before tribunals and other organs administering justice to the same extent as person of another race, colour or national or ethnic origin then the Reserves Act is nevertheless not discriminatory because:

   (a)it is reasonably appropriate and adapted or proportional to a legitimate end, namely protecting Aboriginal persons requiring protection in order to ensure such individuals’ equal enjoyment or exercise of the right to security of person and protection by the State against violence or bodily harm; further or alternatively

   (b)the lack of enjoyment of those rights is not by reason of the race, colour or national or ethnic origin of the Applicant and those whom she represents.’

   REQUIREMENTS FOR STRIKE OUT

8. It is not in dispute that on a strike out application the Court must accept the allegations contained in the defence at face value: Webster v Lampard (1993) 177 CLR 598 at 604 and 608; Turner v Leda Commercial Properties Pty Ltd (2000) 97 FCR 313 at [90].

9. The submissions for the respondents espoused as appropriate tests the following, albeit with reliance on authorities relating to the strike out of a statement of claim:

   (a)the defence must be so untenable that it cannot possibly succeed:  General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130; Hodges v State of New South Wales (1988) 77 ALR 1 at 2-3; Orison Pty Ltd v Strategic Minerals Corporation NL (1987) 77 ALR 141 at 148;

   (b)if the question raised by a pleading is ‘fairly arguable’ the Court will decline to strike out such pleading:  Metroplaza Pty Ltd v Girvan NSW Pty Ltd (in liq) (1993) ATPR 41-241;

   (c)the power to strike out will be exercised sparingly and only where there is a manifestly untenable case:  Turner v Kinian Pty Ltd (unreported, French J, 19 August 1992); Reed International Books Australia Pty Ltd (t/a Butterworths) v King & Prior Pty Ltd (1993) 44 FCR 587;

   (d)it must be plain and obvious that the impugned portions of the pleading are unarguable before they will be struck out:  Murex Diagnostics Australia Pty Ltd v Chiron Corp (1995) 55 FCR 194; and

   (e)the pleading must be hopeless and bound to fail (Orchard v Comrie (1998) 80 IR 76) or hopeless with no chance of success (Warne v Genex Corporation Pty Ltd (1996) 35 IPR 284).

10. The submissions for the applicant accept that Federal Court Rules O 11 r 16 authorises the Court to strike out such portions of the amended defence for failing to disclose any reasonable defence.  The applicant does not contest that where a portion of a defence is demonstrated by argument to be clearly untenable the appropriate course is to strike it out.

    COMPENSATION UNDER THE LAND ADMINISTRATION ACT

11. The applicant submits as follows. Section 50 of the Land Administration Act 1997 (WA) relevantly provides that on the revocation of a management order the former management body may claim compensation under Pt 10 for any improvement made on the relevant reserve in accordance with the management order. 

12. The relevant provision in Pt 10 of the Land Administration Act is s 204, which provides that where a management body loses the use of structures erected or improvements made by the management body on the land, the management body is entitled to compensation for the depreciated value of those structures and improvements.

13. The compensation mentioned in par 23(db)(ii)(A) of the amended defence is therefore compensation for the value of structures erected or improvements made to the land.

14. Therefore, the compensation mentioned in par 23(db)(ii)(A) is not compensation for the deprivation of the right to manage and exercise ownership rights in relation to the Reserve as particularised in par 28 of the substituted statement of claim.

15. Paragraph 23(db)(ii)(A) does not therefore disclose any defence to the claim that the deprivation of the right to manage and exercise ownership rights in relation to the Reserve was without compensation or otherwise arbitrary.

16. The respondents contend as follows. It may be accepted that the right to compensation under s 50 of the Land Administration Act and the offer to provide alternative accommodation may not be a complete answer to a claim for compensation for loss of the rights claimed by the applicant.  But it does not follow that those matters are not relevant, along with the other matters in the amended defence at par 23, as part of a defence that there was no arbitrary deprivation of property.  For example, the respondents submit that it is relevant that the same compensation criteria apply to the applicant as would apply to anyone else whose management order in respect of a reserve was revoked.

17. Further, it is submitted for the respondents, if at trial the Court accepts the respondents’ characterisation of the applicant’s property right (assuming, which is denied, she had a property right) as being in essence a right of public housing, then those matters may well be a complete defence.  Contrary to the applicant’s amended submissions (at pars 15

    
    

    – 19) in support of striking out parts of the amended defence, on a strike out application it is not to be assumed that the applicant will make out the whole of her claim or that the applicant is entitled to ‘first choice’ of remedy.  The question is whether the defence could possibly succeed or, put another way, is not untenable.  A defence that may succeed in the (very real) possibility that the applicant does not make out the whole of her case is not untenable.  Whether or not, on the applicant’s case, they are sufficient, it cannot be said that the availability of compensation for money spent on improvements are entirely irrelevant to the question of whether there was an arbitrary deprivation of any property.

18. I agree with the submissions of the respondents that the availability of compensation for money spent on improvements cannot be said to be entirely irrelevant to the issue of arbitrary deprivation.  It is not the appropriate subject for a strike out.

    OFFER OF ALTERNATIVE ACCOMMODATION

19. The applicant submits as follows.  To compensate is to counterbalance, or to give something as an equivalent for loss:  Macquarie Dictionary, 2^nd rev edn, p 382.

20. A remedy must procure substantial and practical justice:  Spedley Securities Ltd (in liq) v Greater Investments Pty Ltd (1992) 30 NSWLR 185 at 191. For the purposes of the strike out application, the applicant is assumed to have lost the whole of her claimed right to manage and exercise ownership rights in relation to the Reserve including all the particular rights listed in par 28 of the substituted statement of claim. It is submitted that alternative accommodation cannot counterbalance loss of those rights claimed. It does not procure substantial and practical justice. Therefore, it is not compensation or a remedy for the loss of those rights.

21. The applicant is entitled to ‘first choice’ of remedy.  That is a factor in the Court choosing a remedy:  Butler v Countrywide Finance Ltd [1993] 3 NZLR 623, Hammond J at 632. The substituted statement of claim makes it clear that an offer of alternative accommodation is not the applicant’s ‘first choice’ of remedy. An offer of alternative accommodation does not therefore disclose any defence to the claim that the deprivation of the right to manage and exercise ownership rights in relation to the Reserve was without compensation or otherwise arbitrary.

22. The respondents submit as follows.  If (which is denied) there has been a deprivation of a right of freedom of movement and residence then what the applicant and those she represents effectively lost is (or at least includes) their public housing on the Reserve.  The provision of alternative accommodation (i.e. residence) compensates for such a loss and therefore is not arbitrary.  Compensation for the value of improvements also compensates for such a loss and therefore is not arbitrary.  The applicant may contend she lost something more significant than that, and that alternative accommodation and compensation for improvements is not adequate compensation, but those are issues for the trial.

23. I agree with the submissions for the respondents that the provision of alternative accommodation is not entirely irrelevant and is an issue for trial.  What effect, if any, it has in the total evidentiary matrix is a matter then to be judged.  It is not a factor which does not arguably touch the circle of relevance.  Strike out is therefore not appropriate in relation to it.

    PUBLIC INTEREST

24. The applicant submits as follows, in summary.  A deprivation of the right to own property is arbitrary if it is an unpredictable deprivation.  That is, the deprivation is arbitrary if it is not based on some pre-existing criteria and the opportunity is given for compliance with those criteria.  The existence of a reason for the deprivation is therefore irrelevant to the question of whether the deprivation is arbitrary.  Similarly, in Mabo v Queensland (1988) 166 CLR 186, a law depriving the Meriam People of property rights was ‘arbitrary’ deprivation of those rights, regardless of the reason for that deprivation.

25. Therefore the applicant submits that the assumed fact that the deprivation of property rights in issue here was in the public interest does not impact on whether or not the deprivation was arbitrary and does not therefore disclose any defence to the claims in par 31 of the substituted statement of claim.

26. The respondents submit that the applicant’s submissions on this issue are ones which may be made at trial but are not appropriate on a strike out application.

27. Again, I do not consider that the issue pleaded in the defence of public interest can be said to be entirely irrelevant to the issues alleged against the respondents.  The nature of the act said to be arbitrary can only be properly understood in its full evidentiary setting.  That can be done at trial.  The issue is not one to be precluded by reliance on a concept of arbitrariness reached independently of the evidentiary matrix.  That is not to express any present disagreement with the concepts of arbitrariness upon which the applicant relies for this submission; only to disagree that the concept can determine the issue independently of relevant evidence.  When all the evidence is in, it may well be that those concepts are the ones to be applied as a matter of law to the evidence concerned.

    REASONABLE RESPONSE TO REASONABLE CONCERNS

28. The applicant submits as follows.  The existence of a reason for the deprivation (i.e. the ‘reasonable concerns’) does not therefore make it not arbitrary.

29. Further, any defence of reasonable justification in international anti-discrimination law is codified in s 9(1A)(a) and s 8(1) of the Racial Discrimination Act. Parliament cannot have intended that a less defined and potentially broader defence of reasonable justification applies pursuant to s 9(1) and s 10(1) in addition to that provided in s 9(1A)(a) and s 8(1).

30. As the test is objective, the Court is not required to take the respondents’ subjective concerns into account.  The Court’s task is to decide whether the actual facts of the situation warranted the discriminatory effect.  However, the respondents have not pleaded any actual facts as being the reason for the deprivation of property rights.  They have only pleaded ‘reasonable concerns’.  There is therefore no evidence on which the Court could make a finding that the deprivation of property was objectively reasonable and on that basis not arbitrary. 

1. The respondents submit that these are submissions which may be made at trial but are not appropriate on a strike out application.  In relation to the pleading of ‘reasonable concerns’, the respondents state that it is not their intention at trial to prove the actual facts but only the credible body of allegations and other concerns.

2. In my view this falls to be resolved on the same basis as the applicant’s submissions concerning the relevance of the public interest.  The contentions do not support a strike out.

   RESERVES ACT NOT DISCRIMINATORY

3. The applicant submits as follows: 

   ‘62.… it is not a separate element of section 10(1) of the Racial Discrimination Act nor section 109 of the Commonwealth Constitution that the relevant State law be “discriminatory”. If, by reason of that State law, persons of a particular race, colour or national or ethnic origin do not enjoy such rights to the same extent as persons of another race, colour or ethnic origin then section 10(1) of the Racial Discrimination Act has effect in relation to that State law.

   63.Paragraph 32 of the Amended Defence does not therefore disclose any defence to the claim in paragraph 43 of the Substituted Statement of Claim.

   64.Further, any defence relating to the concept of reasonably appropriate and adapted or proportional to a legitimate end in international anti-discrimination law is codified in sections 9(1A)(a) and 8(1) of the Racial Discrimination Act. Parliament cannot have intended that a similar but less defined and potentially broader defence applies via section 10(1) in addition to that provided in sections 9(1A)(a) and 8(1). Paragraph 32(a) of the Amended Defence does not therefore disclose any defence to the claim in paragraph 43 of the Substituted Statement of Claim.

   65.Further, it is not an element of section 10(1) of the Racial Discrimination Act that the lack of enjoyment of the relevant rights is by reason of the relevant persons’ race, colour or national or ethnic origin.  The only requirement is that the relevant law has the effect that those persons do not enjoy such rights to the same extent of persons of another race, colour or ethnic origin.  Paragraph 32(b) Amended Defence does not therefore disclose any defence to the claim in paragraph 43 of the Substituted Statement of Claim.’

4. The respondents say in relation to pars 62, 63 and 65, the cases clearly establish that discrimination is an element of s 10 of the Racial Discrimination Act (i.e. the applicant must demonstrate that the alleged difference in treatment is by reason of her race, colour or national or ethnic origin). This is because in order to make out the claims under s 10(1) of the Racial Discrimination Act the applicant must establish that as a result of the actions of the respondents:

   (a)she does not enjoy a relevant human right to some extent; and

   (b)that lack of enjoyment occurs in circumstances where persons of other races, colour or national or ethnic origins do enjoy that human right, and her lack of enjoyment arises by reason of her race, colour or national or ethnic origin (i.e. she suffers discrimination):  see Gerhardy v Brown (1985) 159 CLR 70 at 99 per Mason J; Melkman v Commissioner of Taxation (1988) 20 FCR 331 at 335 – 336; Nguyen v Refugee Review Tribunal (1997) 74 FCR 311 at 317 – 318; Macabenta v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 202 at 210 – 213; Sahak v Minister for Immigration and Multicultural Affairs (2002) 123 FCR 514 at 523 – 525; Western Australia v Commonwealth (1995) 183 CLR 373 at 436 – 437; Western Australia v Ward (2002) 213 CLR 1 at [105], [115], [117]; Purvis v State of New South Wales (2003) 202 ALR 133 at [11] - [14], [129], [198], [223] – [224], [238].

5. In relation to par 64, the respondents submit that this submission may be made at trial but is not appropriate on a strike out application. There is no direct judicial authority on this point. The starting point is to construe s 10 of the Racial Discrimination Act, which implements the International Convention on the Elimination of All Forms of Racial Discrimination.  The fact that the Racial Discrimination Act incorporates a specific defence of special measure (which is itself part of the Convention) may, as the applicant submits, assist in interpreting s 10. However the respondents contend that defence is intended to address specific situations, e.g. allow for ‘positive discrimination’. It does not displace the principle that conduct which is reasonably appropriate and adapted (or proportional) to a legitimate end is simply not discriminatory in the first place and does not fall within the ambit of the Convention (and therefore does not fall within the ambit of s 10 of the Racial Discrimination Act). The pleading is at least clearly arguable: see for example R Dubler, ‘Direct discrimination and a defence of reasonable justification’ (2003) 77 ALJ 514 in particular at 526 – 529.

6. I consider that the above submissions make apparent that the issues there addressed are open to legitimate argument.  They should be considered in an appropriate evidentiary setting.  They are not the proper subject of a strike out.

   PARTICULARS

7. The applicant submits that where its strike out motion does not succeed the respondents should be ordered to provide particulars.  The respondents submit that the defence has sufficient details to put the applicant on her guard concerning the case she has to meet and to enable her to prepare for trial: Goldsmith v Sandilands (2002) 190 ALR 370 at [2]. In circumstances where evidence in chief in the proceedings is to be by way of affidavits filed well prior to the commencement of the trial, it is said the respondents’ case is already laid out for the applicant.

8. The argument on the strike out motion has in part made more apparent the nature of the defence case.  I am not satisfied that at this stage there is a need for the applicant to have a general order concerning particulars.  The matter should proceed and in the event that any specific issue is arguably in need of particulars, an application can be made at that time.

   CONCLUSION

9. For the above reasons I consider the applicant’s re-amended notice of motion should be dismissed.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholson.

Associate:

Dated:             6 May 2005

Counsel for the Applicant:	G McIntyre SC
Solicitor for the Applicant:	Dwyer Durack
Counsel for the Respondents:	G Tannin SC and S Wright
Solicitor for the Respondents:	State Solicitor of Western Australia
Date of Last Written Submissions:	3 March 2005
Date of Judgment:	6 May 2005