Court v Hamlyn-Harris
[2000] FCA 1870
•20 DECEMBER 2000
FEDERAL COURT OF AUSTRALIA
Court v Hamlyn-Harris [2000] FCA 1870
DISCRIMINATION – alleged discrimination on the ground of disability – termination of employment – employer sole trader carrying on business in two States – whether “in the course of, or in relation to, trade or commerce among the States”.
WORDS AND PHRASES – “in the course of, or in relation to, trade or commerce”
Human Rights and Equal Opportunity Commission Act 1986 (Cth) ss 46PH(1)(d), 46PO(1), (3)(a)
Disability Discrimination Act 1992 (Cth) s 12(4), (12), s 15(2)(c)Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 applied
Mulcahy v Hydro-Electric Commission (1998) 85 FCR 170 at 213 followedLEROI COURT v RICHARD HAMLYN-HARRIS trading as SHEARWATER OYSTERS
NO. T 13 OF 2000HEEREY J
20 DECEMBER 2000
MELBOURNE (HEARD IN HOBART)
IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY
T 13 OF 2000
BETWEEN:
LEROI COURT
APPLICANTAND:
RESPONDENT
JUDGE:
HEEREY J
DATE OF ORDER:
20 DECEMBER 2000
WHERE MADE:
MELBOURNE (HEARD IN HOBART)
THE COURT ORDERS THAT:
1. The application is dismissed.
2.The applicant pay the respondent’s costs 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
TASMANIA DISTRICT REGISTRY
T 13 OF 2000
BETWEEN:
LEROI COURT
APPLICANTAND:
RICHARD HAMLYN-HARRIS trading as SHEARWATER OYSTERS
RESPONDENT
JUDGE:
HEEREY J
DATE:
20 DECEMBER 2000
PLACE:
MELBOURNE (HEARD IN HOBART)
REASONS FOR JUDGMENT
The applicant Leroi Charles Court on 14 March 2000 lodged a complaint with the Human Rights and Equal Opportunity Commission (“HREOC”) alleging that he had been discriminated against because he had a disability. The complaint was brought against the present respondent Richard Hamlyn-Harris who conducted an oyster farm under the name Shearwater Oysters. In his complaint to HREOC Mr Court alleged:
“I was employed by Shearwater Oysters for 2½ years. I suffer from A disability in that I am legally blind having an acuity of ‘6/60’.
Shearwater Oysters employed me knowing my disability. Throughout my employment I carried out all my duties as required without undue difficulty. My employment was terminated in or about April 1999. My employer told me that my employment was terminated because of my eyesight disability.”
By a letter dated 30 May 2000 a delegate of the President of HREOC terminated Mr Court’s complaint under s 46PH(1)(d) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HR Act”) on the ground that Mr Court had sought some other remedy in relation to the subject matter of the complaint and the delegate was satisfied that the subject matter of the complaint had been adequately dealt with.
The remedy in question was an application by Mr Court to the Tasmanian Industrial Commission (“the TI Commission”) under the Industrial Relations Act 1984 (Tas) (“the IR Act”) against Mr Hamlyn-Harris alleging unfair termination and underpayment of wages. The parties had executed a deed of compromise and release resolving the complaints on a payment of $2500. This amount exceeded by a few hundred dollars the amount of the alleged underpayment so presumably took into account the allegedly unfair termination. Mr Court was legally represented. On 7 March 2000 the TI Commission, noting that it had been advised of the deed of release, ordered that “proceedings are discontinued, the matter is dismissed and the file is closed”.
On 26 June 2000 Mr Court filed an application in this Court under s 46PO of the HR Act alleging “unlawful discrimination” by Mr Hamlyn-Harris. It was not in dispute that the unlawful discrimination alleged in the application was the same as, or the same in substance as, the unlawful discrimination that was the subject of the terminated complaint: see s 46PO(3)(a).
On the hearing before me there was argument as to whether the present application was barred by the deed of release, or by an issue estoppel arising out of the disposal of Mr Court’s complaint to the TI Commission. In any event, it was said on behalf of Mr Hamlyn-Harris that there was no unlawful discrimination. Evidence was called by both sides on this issue.
But a fundamental jurisdictional issue arises at the outset. An application under s 46PO(1) must allege “unlawful discrimination”. That expression is defined by s 3(1) of the HR Act relevantly to mean:
“… any acts, omissions or practices that are unlawful under:
(a) Part 2 of the Disability Discrimination Act 1992; or
(b) …
(c) … ”Part 2 of the Disability Discrimination Act 1992 (Cth) (“the DD Act”) includes s 15(2)(c) which makes it unlawful for an employer to discriminate against a person on the ground of that person’s disability by dismissing the employee.
However s 12 of the DD Act restricts the effect of the “limited application provisions” of the Act. This expression is defined to mean, inter alia, the provisions of Division 1 of Part 2, which includes s 15. By s 12(4) the limited application provisions have effect as provided in sub-sections (3) and (5) to (14) of s 12 “and not otherwise”. The sub-sections in question deal with conduct defined by reference to the subject matter of various heads of Commonwealth legislative power such as acts done within a Territory (sub-s (3)), matters external to Australia or of international concern (sub-s (8)(d) and (e)) or acts by foreign corporations or trading or financial corporations formed within the Commonwealth (sub-s (9)).
Mr Hamlyn-Harris being a sole trader, the only provision of s 12 relied on by counsel for Mr Court was sub-s (12):
“(12)The limited application provisions have effect in relation to discrimination in the course of, or in relation to, trade or commerce:
(a)between Australia and a place outside Australia; or
(b)among the States; or
(c)between a State and a Territory; or
(d)between 2 Territories.”
It was not disputed that at all material times Mr Hamlyn-Harris operated an oyster farm at Port Sorell in Tasmania, where Mr Court had been employed, and also a similar operation at Gosford in New South Wales. Counsel for Mr Court argued that therefore the alleged discrimination occurred “in the course of, or in relation to, trade or commerce among the States”.
I do not accept this argument. For the purposes of argument it can be assumed that Mr Hamlyn-Harris, by operating oyster farms in two States, engaged in trade or commerce among the States. But the alleged termination of Mr Court’s employment was not in the course of, or in relation to, trade or commerce. The determinative authority is the decision of the High Court in Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594, which counsel for Mr Court did not seek to distinguish. In that case an employee of a company suffered injury when carrying out work in reliance on erroneous instructions by a foreman as to certain grates in an air-conditioning shaft being secured by bolts.
The High Court rejected the argument that the foreman’s instructions were “in trade or commerce” and thus misleading and deceptive conduct within the meaning of s 52 of the Trade Practices Act 1974 (Cth). The reasoning of the majority (Mason CJ, Deane, Dawson and Gaudron JJ) appears from the following passage (at 604-605):
“What the section [52] is concerned with is the conduct of a corporation towards persons, be they consumers or not, with whom it (or those whose interests it represents or is seeking to promote) has or may have dealings in the course of those activities or transactions which, of their nature, bear a trading or commercial character. Such conduct includes, or course, promotional activities in relation to, or for the purposes of, the supply of goods or services to actual or potential consumers, be they identified persons or merely an unidentifiable section of the public. In some areas, the dividing line between what is and what is not conduct ‘in trade or commerce’ may be less clear and may require the identification of what imports a trading or commercial character to an activity which is not, without more, of that character. The point can be illustrated by reference to the examples mentioned above. The driving of a truck for the delivery of goods to a consumer and the construction of a building for another pursuant to a building contract are, no doubt, trade or commerce in so far as the relationship between supplier and actual or potential customer or between builder and building owner is concerned. That being so, to drive a truck with a competitor’s name upon it in order to mislead the customer or to conceal a defect in a building for the purpose of deceiving the building owner may well constitute misleading or deceptive conduct ‘in trade or commerce’ for the purposes of s 52. On the other hand, the mere driving of a truck or construction of a building is not, without more, trade or commerce and to engage in conduct in the course of those activities which is divorced from any relevant actual or potential trading or commercial relationship or dealing will not, of itself, constitute conduct ‘in trade or commerce’. That being so, the giving of a misleading handsignal by the driver of one of its trucks is not, in the relevant sense, conduct by a corporation in ‘trade or commerce’. Nor, without more, is a misleading statement by one of a building company’s own employees to another employee in the course of their ordinary activities. The position might well be different if the misleading statement was made in the course of, or for the purposes of, some trading or commercial dealing between the corporation and the particular employee.
The alleged misleading or deceptive conduct of the Company’s foreman in the present case consisted of an internal communication by one employee to another employee in the course of their ordinary activities in and about the construction of a building. It follows from what has been said above that that conduct was not, for relevant purposes, conduct ‘in trade or commerce’ and would not, if established, constitute a contravention of s 52 of the Act. That being so, the appeal must be allowed and the preliminary question which was answered by the learned primary judge in the affirmative must be answered in the negative.”In Mulcahy v Hydro-Electric Commission (1998) 85 FCR 170 at 213 I applied that principle to a claim by employees alleging that misleading and deceptive information was given to them by their employer in respect of superannuation entitlements.
In the present case the dealings between Mr Court and his employer Mr Hamlyn-Harris were matters internal to the latter’s business. They were not in the course of trade or commerce, or in relation thereto.
That being so, I conclude this Court has no jurisdiction to hear the application. I do not accept the argument of counsel for Mr Court that the HR Act is not confined to the limited application provisions of the DD Act but applies to “unlawful discrimination in general”. Being a Commonwealth Act, the DD Act has obviously been carefully drafted to ensure that it is within the legislative power of the Commonwealth.
The application will be dismissed with costs, including reserved costs.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate:
Dated: 20 December 2000
Counsel for the Applicant: M Verney Solicitor for the Applicant: G J Nevin Counsel for the Respondent: J Walters Solicitor for the Respondent: Piggott Wood & Baker Date of Hearing: 7 December 2000 Date of Judgment: 20 December 2000
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