Caves v Chan and Ors (No.2) - [2010] FMCA 817

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CAVES v CHAN & ORS (No.2)

[2010] FMCA 817

HUMAN RIGHTS – Alleged racial discrimination – membership of ethnic literary association on Christmas Island – requirement of Chinese descent – whether discrimination on ground of race – effect on remedies of amendment to constitution of association to include persons supporting objects of association and who are residents of Christmas Island.

Australian Human Rights Commission Act 1986 (Cth), s.46PO
Evidence Act 1995 (Cth), s.56(2)
International Convention on the Elimination of All Forms of Racial Discrimination, Article 5
Racial Discrimination Act 1975 (Cth), ss.9, 13

Australian Competition and Consumer Commission v Jutsen & Ors [2010] FCA 961
Australian Medical Council v Wilson (1996) 68 FCR 46
Bahonko v Sterjov (2007) 167 IR 43; [2007] FCA 1244
Bropho v State of Western Australia [2004] FCA 1209
Campbell v Kirstenfeldt (2008) EOC 93-515; [2008] FMCA 1356
Caves v Chan & Ors [2010] FMCA 706
Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573; [2000] FCA 1531
Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118
Forozandeh v Sky City Adelaide [2006] FMCA 222
Gama v Qantas Airways Limited (2006) 195 FLR 475; [2006] FMCA 11
Ho v Regulator Australia Pty Ltd [2004] FMCA 62
Hollingdale v Northern Rivers Area Health Service [2004] FMCA 721
House v Queanbeyan Community Radio Station (2008) EOC 93-514; [2008] FMCA 897
Oorloff & Anor v Lee & Ors [2004] FMCA 893
Perry v Howard [2005] FCA 1702
Purvis v State of New South Wales Department of Education & Training (2003) 217 CLR 92; [2003] HCA 62
Qantas Airways Limited v Gama (2008) 167 FCR 537; [2008] FCAFC 69
Re East; Ex parte Nguyen (1998) 196 CLR 354; [1998] HCA 73
Speirs v Darling Range Brewing Co Pty Ltd [2002] FMCA 126
Travers v State of New South Wales [2000] FCA 1565

Applicant:

TEKOHI CAVES

First Respondent:

LEWI CHAN

Second Respondent:

NG LAY HWA

Third Respondent:

GEE FOO

Fourth Respondent:

ALBERT ENG

Fifth Respondent:

PANG SWEE HUAT

Sixth Respondent:

CHINESE LITERARY ASSOCIATION OF CHRISTMAS ISLAND INC.

File Number:

PEG 110 of 2009

Judgment of:

Lucev FM

Hearing date:

28 September 2010

Date of Last Submission:

28 September 2010

Delivered at:

Perth

Delivered on:

29 October 2010

REPRESENTATION

The Applicant:

In person (by telephone link)

The First Respondent:

In person (by telephone link)

The Second Respondent:

No appearance

The Third Respondent:

In person (by telephone link)

The Fourth Respondent:

In person (by telephone link)

The Fifth Respondent:

In person (by telephone link)

The Sixth Respondent:

No appearance

DECLARATIONS AND ORDERS

DECLARATIONS:

That sometime in the period between 24 March and 4 April 2008, the sixth respondent, the Chinese Literary Association of Christmas Island Inc. (“the Association”), engaged in conduct rendered unlawful by section 9 of the Racial Discrimination Act 1975 (Cth) by advising Mr Tekohi Caves that he was unable to make application for membership of the Association because he is not of Chinese descent.

ORDERS:

That…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] FMCA 817
Decision Date: 29 October 2010

CaseChat Overview and Summary

The Caves v Chan and Ors (No.2) case involved Tekohi Caves, an Australian citizen of Chinese descent, who sought redress against the Chinese Literary Association of Christmas Island Inc. and its members for allegedly racially discriminatory practices. The dispute came before the Federal Magistrates Court of Australia, which was required to adjudicate on the application's merit and decide whether the Association's past conduct constituted unlawful racial discrimination under the Racial Discrimination Act 1975 (Cth).

The primary legal issue before the court was whether the Association's conduct, as alleged by Mr Caves, constituted racial discrimination, and if so, whether the Association's subsequent constitutional amendment and the proposed public notification were sufficient to address the unlawful conduct. The court also had to consider whether the public notification, as proposed, was appropriate and enforceable under the circumstances.

The Federal Magistrates Court found that the Association's conduct between 24 March and 4 April 2008, as alleged by Mr Caves, was indeed unlawful racial discrimination. However, the court considered the Association's constitutional amendment, which welcomed membership from all residents regardless of racial descent, as a mitigating factor. The court concluded that the proposed public notification was an appropriate remedy to address the past discriminatory conduct and ensure compliance with the Racial Discrimination Act. The court ordered the Association to publish the specified public notice in the required manner and frequency to ensure awareness and compliance.

In summary, the Federal Magistrates Court dismissed the application against the Association's members but mandated the Association to publish a public notice in the local Christmas Island newsletter, "The Islander," on two separate occasions. The notice must be of a specified size and font to ensure its visibility and effectiveness.

Orders

Orders of the court

That the application against the first, second, third, fourth and fifth respondents be dismissed.

That the sixth respondent:

(a) place a public notification (“the Public Notice”) in the local Christmas Island newsletter, “The Islander”, in terms as follows:

Chinese Literary Association of Christmas Island Inc – Public Notice by Order of the Federal Magistrates Court of Australia

On 29 October 2010 the Federal Magistrates Court of Australia declared that sometime in the period between 24 March and 4 April 2008, the Chinese Literary Association of Christmas Island Inc. (“the Association”) engaged in conduct rendered unlawful by section 9 of the Racial Discrimination Act 1975 (Cth) by advising Mr Tekohi Caves that he was unable to make application for membership of the Association because he is not of Chinese descent.

On 8 October 2009, the Association amended its Constitution, and it now welcomes membership applications from all residents of Christmas Island regardless of racial descent.

Secretary

Chinese Literary Association of Christmas Island Inc.

(b) place the Public Notice on two separate occasions:

(i) the first in an edition of “The Islander” published no later than 6 December 2010; and

(ii) the second in an edition of “The Islander” published no later than 6 March 2011,

and that the size of the Public Notice should be not less than 15cm in depth x 10cm in width with text in a font size of not less than point 10.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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