David Yohan on behalf of the Class Members of Providing Awareness with Education and Sport Incorporated (Pawes) v Basketball Queensland Inc - [2012] FMCA 1024

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DAVID YOHAN ON BEHALF OF THE CLASS MEMBERS OF PROVIDING AWARENESS WITH EDUCATION AND SPORT INCORPORATED (PAWES) v BASKETBALL QUEENSLAND INC & ANOR

[2012] FMCA 1024

HUMAN RIGHTS – Costs – application discontinued – application bound to fail – indemnity costs.

Anti-Discrimination Act1991
Australian Human Rights Commission Act 1986, s.46PH(2)
Racial Discrimination Act 1975, ss.6, 6A, 6A(2)

Ball v Morgan [2001] FMCA 127
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Fetherston v Peninsula Health (No. 2) [2004] FCA 594
Firew v Busways North Pty Ltd [2003] FMCA 193

Applicant:

DAVID YOHAN ON BEHALF OF THE CLASS MEMBERS OF PROVIDING AWARENESS WITH EDUCATION AND SPORT INCORPORATED (PAWES)

First Respondent:

BASKETBALL QUEENSLAND INC

Second Respondent:

BRISBANE BASKETBALL INC

File Number:

BRG 428 of 2012

Judgment of:

Jarrett FM

Hearing date:

20 September 2012

Date of Last Submission:

20 September 2012

Delivered at:

Brisbane

Delivered on:

9 November 2012

REPRESENTATION

The applicant appeared in person

Solicitor for the Respondents:

Ms Donaghy

Solicitors for the Respondents:

Minter Ellison

ORDERS

The applicant pay the first and second respondents’ costs of and incidental to the application filed on 18 May 2012 to be taxed on the indemnity basis.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 428 of 2012

DAVID YOHAN ON BEHALF OF THE CLASS MEMBERS OF PROVIDING AWARENESS WITH EDUCATION AND SPORT INCORPORATED (PAWES)

Applicant

And

BASKETBALL QUEENSLAND INC

First Respondent

BRISBANE BASKETBALL INC

Second Respondent

REASONS FOR JUDGMENT

This is an application by the respondents’ for the applicant to pay their costs of and incidental to these proceedings on an indemnity basis, or in the alternative on another basis that this Court thinks is appropriate.
By his application Mr Yohan sought to institute proceedings on behalf of members of a class which he describes as the members of “Providing Awareness with Education and Sport Incorporated.” He sought an order declaring that the respondents’ had committed unlawful discrimination, an order requiring them not to repeat that unlawful discrimination, for the respondents’ to provide cultural awareness training to staff and volunteers, an order for an apology, an order requiring the respondents to assist the body he represented with setting up their own affiliated basketball association and certain other relief including compensation.
The applicant’s claims arose out of certain actions taken by the respondents’ in respect of organised basketball competitions in the Brisbane area. Specifically, the complaints related to the way in which certain teams, an under 18 male team and an under 20 male team were treated by the respondents.’ Allegations were also made in respect of attempts by the applicant to register another four teams in the second respondent’s organised basketball competition. The teams were made up of mostly African refugees, so it is claimed, and the applicant asserts that the respondents’ actions amounted to discrimination against the members of the teams on the basis of their race. The relevant conduct took place in the 2009 season up to and including 18 September, 2009.
The documents filed with the application make it clear that a complaint was made under the Racial Discrimination Act 1975 (Cth) to the Australian Human Rights Commission by the applicant on behalf of Providing Awareness with Education and Sport Incorporated. The complaint was made on 30 May, 2011 and amended on 20 December, 2011. On 20 March, 2012 the Australian Human Rights Commission (AHRC) gave a notice of termination of the dispute pursuant to s.46PH(2) of the Australian Human Rights Commission Act 1986 (Cth).
Earlier, in September, 2009 the applicant had made a complaint to the Anti-Discrimination Commission of Queensland alleging racial discrimination, racial vilification and victimisation against the same respondents to the complaint made in the AHRC. There was a contested hearing of that claim before the Queensland Civil and Administrative Tribunal (QCAT).
On 29 September, 2010 QCAT decided that the applicant’s complaint included a complaint of racial discrimination, racial vilification and victimisation and that those allegations were open to be determined on their merits in the QCAT proceedings. However, QCAT dismissed the applicant’s complaints on the grounds that the respondents’ were not “clubs” within the meaning of that term in the Anti-Discrimination Act 1991 (Qld) and therefore they were exempt from the provisions of that Act prohibiting discrimination in the area of club membership and affairs.
The termination letter from AHRC in respect of the complaint to that Commission makes it clear that the applicant’s claims, one which related to events which occurred between mid-April, 2009 and 18 September, 2009 and the second which related to events which occurred between 19 September, 2009 and May, 2011. In respect of the former period, the Commission took the view that because proceedings had been prosecuted in the Queensland Anti-Discrimination Commission and QCAT, s.6A of the Racial Discrimination Act 1975 prevented the applicant for pursuing those proceedings in the Commonwealth Commission. However, his complaint with respect to the second period was capable of being brought in the Commonwealth Commission. That complaint, however, was terminated because the parties could reach no agreement in respect of it.
A perusal of the grounds of the application in the present matter suggests that the behaviour complained of by the applicant took place up to and including 18 September 2009 and so relates to the first period in respect of which proceedings were taken in the Queensland Anti-Discrimination Commission and QCAT.
The respondents point to s.6A of the Racial Discrimination Act 1975 and argue that the applicant’s claim was doomed to fail because it was barred by s.6A(2) of that Act.
Section 6A of the Racial Discrimination Act is in the following terms:
Operation of State and Territory laws
(1) This Act is not intended, and shall be deemed never to have been intended, to exclude or limit the operation of a law of a State or Territory that furthers the objects of the Convention and is capable of operating concurrently with this Act.
(2) Where:
(a) a law of a State or Territory that furthers the objects of the Convention deals with a matter dealt with by this Act; and
(b) a person has, whether before or after the commencement of this section, made a complaint, instituted a proceeding or taken any other action under that law in respect of an act or omission in respect of which the person would, but for this subsection, have been entitled to make a complaint under the Australian Human Rights Commission Act 1986 alleging that the act or omission is unlawful under a provision of Part II or IIA of this Act;
the person shall be deemed never to have been, and is not, entitled to make a complaint or institute a proceeding under the Australian Human Rights Commission Act 1986 alleging that the act or omission is unlawful under a provision of Part II or IIA of this Act and any proceedings pending under this Act at the commencement of this section in respect of such a complaint made before that commencement are, by force of this subsection, terminated.
(3) Where:
(a) a law of a State or Territory that furthers the objects of the Convention deals with a matter dealt with by this Act; and
(b) an act or omission by a person that constitutes an offence against that law also constitutes an offence against this Act;
the person may be prosecuted and convicted either under that law of the State or Territory or under this Act, but nothing in this subsection renders a person liable to be punished more than once in respect of the same act or omission.
I accept that by operation of s.6A(2) of the Racial Discrimination Act 1975, the applicant is deemed never to have been entitled to make a complaint or institute a proceeding under the Australian Human Rights Commission Act 1986 alleging that the acts and omissions complained of in the application before me are unlawful under Part II or Part IIA of the Racial Discrimination Act 1975.
The applicant seems to have accepted that proposition because on 12 July, 2012 he filed a notice of discontinuance of the whole of these proceedings.
Consequently, the respondents’ seek that the applicant pay their costs of and incidental to this application on an indemnity basis.
The suggestion that this Court’s jurisdiction under the Australian Human Rights Commission Act 1986 or the Racial Discrimination Act 1975 is a “no costs jurisdiction” has been firmly rejected in a number of decisions commencing with Ball v Morgan [2001] FMCA 127. Although Ball v Morgan concerned a claim under the Disability Discrimination Act 1992, the approach contained within it was applied to a claim under the Racial Discrimination Act 1975 in Firew v Busways North Pty Ltd [2003] FMCA 193. It was also endorsed in Fetherston v Peninsula Health (No. 2) [2004] FCA 594. In dealing with a case involving a claim under the Disability Discrimination Act 1992, Heerey J said:
8 The general rule is that a wholly successful defendant should receive his or her costs unless good reason is shown to the contrary: Milne v Attorney-General (Tas) (1956) 95 CLR 460 at 477. As Dawson J said in Latudis v Casey (1990) 170 CLR 534 at 557, the discretion as to costs remains absolute and unfettered but it is to be exercised judicially, that is to say
"... not by reference to irrelevant or extraneous considerations but upon facts connected with or leading up to the litigation."
9 While the Disability Discrimination Act is without doubt beneficial legislation, its characterisation as such does not mean that this Court is to apply any different approach as to costs. In conferring jurisdiction under a particular statute Parliament may conclude that policy considerations warrant a special provision as to costs, for example that there be no order as to costs or that costs only be awarded in certain circumstances, such as, for example, where a proceeding has been instituted vexatiously or without reasonable cause: Workplace Relations Act 1996 (Cth) s 347. The absence of any such provision applicable to the present case confirms that the usual principles as to costs are to apply.
In my view the respondents’ should have their costs of these proceedings. There is no reason to suggest that the usual rule that costs should follow the event should not be applied. To the extent that Mr Yohan suggests that this application was taken for altruistic reasons, it is clear that he was aware that s.6A of the Racial Discrimination Act 1975 operated to bar these proceedings, both here and in the AHRC – the Commission’s termination letter set that out.
The question to be determined is whether they should have them on an indemnity basis or on a party and party basis. The respondents’ suggest that the relevant considerations are:
a)That the application was misconceived and brought without proper basis.
b)The applicant knew that there was no prospect of success in the case because he was precluded from bringing these proceedings in the Commonwealth jurisdiction.
c)The correspondence attached to the applicant’s application from the AHRC which formed part of the termination of the applicant’s complaint pointed out the effect of s.6A(2) of the Racial Discrimination Act 1975. Thus, the applicant and his advisors were clearly aware of that section and that it provided a complete answer to his application based, as it was, on events which occurred up to 18 September, 2009. Despite an opportunity to re-plead his claim, the applicant did not do so.
d)The application purported to bring these proceedings as representative proceedings when this Court has no power to entertain proceedings in such a form.
I accept that the applicant conducted himself in the proceedings in a way that was less than satisfactory. He failed to appear at the first Court date and failed to properly re-plead his application when given an opportunity to do so. I accept that he was advised that the respondents’ were going to prepare and file an application to have the claim dismissed. The evidence reveals that he did not advise the respondents’ that he was going to discontinue his claim and, without notice to the respondents’ he discontinued it by filing a notice of discontinuance at approximately 4:00pm on the day before the matter was next due in Court.
I am satisfied that there was no public interest element to the applicant’s complaint. The applicant was aware that his claim was unsustainable but pursued it anyway. He failed to appear at the first Court date, he failed to amend his claim despite indulgence from the Court and he has caused the respondents’ to incur significant costs in these proceedings. Having regard to the statements of principle set out by Shepherd J in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 an order for indemnity costs is appropriate.
I order accordingly.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Jarrett FM

Date: 9 November 2012