De Alwis v Hair
[2002] FMCA 357
•24 December 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DE ALWIS v HAIR & ANOR | [2002] FMCA 357 |
| HUMAN RIGHTS – Application seeking injunctive relief pursuant to s.46PP of the Human Rights and Equal Opportunity Commission Act 1986. Human Rights and Equal Opportunity Commission Act1986, s.46PP Gardner v National Netball League Pty Ltd [2001] FMCA 50; |
| Applicant: | VIJITHA DE ALWIS |
| Respondent: | DARRELL HAIR & ANOR |
| File No: | WZ 269 of 2002 |
| Delivered on: | 24 December 2002 |
| Delivered at: | Perth |
| Hearing Date: | 24 December 2002 |
| Judgment of: | Bryant CFM |
REPRESENTATION
| Counsel for the Applicant: | Applicant appeared in person |
| Solicitors for the Applicant: | Applicant appeared in person |
ORDERS
THAT the Notice of Motion and the Application, both filed 19 December 2002 by the Applicant on an ex parte basis be dismissed.
THAT any further proceedings by the Applicant, save for an appeal against my decision, for injunctive relief under the Human Rights and Equal Opportunity Commission Act1986 be permanently stayed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
WZ 269 of 2002
| VIJITHA DE ALWIS |
Applicant
And
| DARRELL HAIR & ANOR |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an ex tempore decision. The background to the matter is that it appears that Mr Muralitharan is likely to be included in the Sri Lankan cricket team which will be playing Australia as part of the tri-series and is expected to play for Sri Lanka against Australia on 9 January 2003. Mr Hair, in somewhat controversial circumstances has previously ‘no – balled’ Mr Muralithahran. ‘No – balled’ being a term used for having a defective bowling action, which is otherwise referred to as ‘throwing’ in cricketing terms. Mr Hair has also written a book in which he has made comments to the effect that, despite other people's views, he regards Mr Muralitharan's action as suspect.
Against this background the Applicant has brought this Application and sought injunctions, the effect of which would be to restrain Mr Hair from umpiring and, in the view of the Applicant, thereby enabling Mr Muralitharan to play in the series. The Application is based upon the Disability Discrimination Act1992. The basis for seeking an injunction in this case on an ex parte basis is pursuant to section 46PP of the Human Rights and Equal Opportunity Commission Act1986. Section 46PP provides:
(1) At any time after a complaint is lodged with the Human Rights and Equal Opportunity Commission the Federal Court or the Federal Magistrates Court may grant an interim injunction to maintain
(a)the status quo as it existed immediately before the complaint was lodged, or
(b)the rights of any complainant, respondent or affected person.
The Applicant in this case, as far as the injunctive relief is sought at least, asserts that by inference he is an ‘affected person’ because he is a spectator and a supporter of Mr Muralitharan and that he would be denied the opportunity of seeing him play, if the relief were not granted.
I am satisfied that an Application has been made to the Human Rights and Equal Opportunity Commission by the Applicant on 19 December 2002 which provides at least the initial basis upon which an interim injunction can be sought under s46PP. The principles relating to an injunction under s.46PP of the Human Rights and Equal Opportunity Commission Act have been dealt with in a number of cases, in particular in the Federal Magistrates Court in Gardner v National Netball League Pty Ltd [2001] FMCA 50, a decision of McInnis FM; Rainsford v Group 4 Correctional Services [2002] FMCA 36, another decision of McInnis FM.
The Federal Court have also considered the circumstances in which an interim injunction can be sought. I refer to McKellar v Australian Containers (1999) 165 ALR 415, a decision of Weinberg J, and Lee v Minister for Immigration and Multicultural and Indigenous Affairs (2001) FCA 141, a decision of Emmett J.
The ability to grant an interim injunction must always remain a discretionary one. In Lee v Minister for Immigration and Multicultural and Indigenous Affairs (2001) FCA 141, Emmett J said that the procedure was limited to orders necessary to maintain the effective exercise of power of the Commission and of the jurisdiction of the Court. In McIntosh v Australian Postal Corporation (2001) FCA 1012, Heery J said:
“To Victorians, an interim injunction is one issued for a very short period, usually a few days, often ex parte.”
Whilst it is true that on its face the jurisdictional basis for the seeking of an injunction exists in the sense that an Application has been made to the Human Rights and Equal Opportunity Commission, I am asked to consider whether the Act envisages that an ‘affected person’ is a person in the position of the Applicant whose interest at best is extremely tenuous. However, I do not decide the Application at this stage on that point.
In Rainsford v Group 4 Correctional Services, McInnis FM indicated and I agree with him, that the Court should apply the common law principles relating to injunctive relief, although in exercising discretion under s.46PP the Court should not feel constrained solely by common law principles. The well-known principles are of course that there is an arguable case and if there is, then the balance of convenience must be considered.
The question of whether there is an arguable case requires a consideration of the Application to the Human Rights and Equal Opportunity Commission itself. In the event that the complaint was terminated by the Commission, it may then find its way to the Court. The complaint made to the Commission is essentially that Mr Muralitharan suffers from an alleged disability called flexion deformity. The allegation that he suffers from this condition arises from some material taken from a Web site which is attached to the Affidavit of the Applicant filed on 23 December 2002.
It is alleged in that article that the shape of his arm is such that he has a deformity and this may make it look as if his arm is bent when he is bowling. It is alleged by the Applicant that Mr Muralitharan is as a result of that deformity, being discriminated against by Darrell Hair, the umpire, who has now formed the view that his bowling action is illegal under the rules of cricket and is now biased towards Mr Muralitharan on account of his disability.
When pressed by me to indicate the nature of the discrimination the Applicant first indicated that he had standing as a result of the reference to a ‘class member’, s.4 being the interpretation section of the Disability Discrimination Act1992. I indicated to the Applicant that that particular definition had been omitted by Act number 133 of 1999 which came into effect in 2000. The Applicant asserts that there is disability discrimination under s.5, that there is indirect disability discrimination under s.6, and that the discrimination occurs both in Mr Muralitharan’s work, as he is a professional cricketer, and pursuant to s.28 in sport as he is likely to be excluded thereby from a sporting activity.
Section 5 of the Act provides that a person described as a ‘discriminator’ discriminates against another person described as the ‘aggrieved person’ on the ground of a disability of the aggrieved person if, because of the aggrieved person’s than in circumstances that are the same or are not materially different the discriminator treats or would treat a person without the disability.
It is clear, in my view, that the basis of disability discrimination is that the person bringing the Application must be the aggrieved person and the discriminator is the person who is doing the discrimination. Absent any ability for some kind of a class action, on the face of it there is no capacity for a third person who does not suffer from a disability to bring an action or seek an injunction on behalf of a person who it is alleged suffers a disability. The Applicant sought then to rely upon ss.15, 16, 17, 27 and 28 of the Disability Discrimination Act. Section 15 relates to discrimination in employment and provides:
(1) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against a person on the ground of the other person’s disability or a disability of any of that person’s associates……
The Applicant seeks to have himself included in the class of ‘associates’. First, it seems to me that there is no basis to suggest that any employer is discriminating against Mr Muralitharan, but in any event it is clear that “associates” is limited to associates who have a disability. That is not the position of the Applicant. Section 17 deals with discrimination against contract workers, and again in s.17(1) of the Act which provides:
(1) It is unlawful for a principal to discriminate against a contract worker on the ground of the contract worker’s disability or a disability of any of the contract worker’s associates.
The Applicant argues that the Australian Cricket Board has a contract with persons to whom it sells tickets to its matches, the class of which includes the Applicant. The section, in my view, is limited to contract workers and does not envisage the contract of a kind the Applicant relies upon. In any event, it is clear from the wording of that section that the disability referred to must again relate to the associate.
Section 16 relates to discrimination against Commission Agents and again refers to the unlawfulness of a principal discriminating against a person on the ground of the person’s disability or a disability of any of that person’s associates. Section 27 deals with clubs and incorporated associations. I cannot see any basis at all in the factual matters alleged, how it could be said that a club or an incorporated association or the committee of management of the same is discriminating, but in any event the section again refers to the disability of the person, that is the aggrieved person or the disability of any of that person’s associates.
Section 28 provides for it to be unlawful for a person to discriminate against another person on the ground of the other person’s disability or a disability of any of the other person’s associates by excluding that other person from a sporting activity. Again it is clear in my view that the reference to “associates” refers to associates with a disability.
The Applicant is not able in my view to bring himself within any of those sections and accordingly to give himself any standing to bring this Application. There is accordingly no arguable ground by reason of which the Commission could grant relief or, if the matter was terminated by the Commission, any arguable basis on which the Court could grant relief to the Applicant.
Accordingly, as far as the injunctive relief sought is concerned, there is no arguable case and accordingly no basis upon which I would exercise my discretion to grant an injunction and I would dismiss the Application on that basis. There are, however, some further remarks that I wish to make in relation to the matter.
The first is that in my view it is clear that there is no basis upon which an Application could be brought by a person in the position of the Applicant. During the course of argument, the Applicant relied upon parts of the Act which have been repealed. I accept that the Applicant did not have the up to date legislation and that the legislation he did have was lent to him by the Federal Court Library and was out of date. However, certain things follow.
The first is that before an Application is brought, it is incumbent on the person bringing the Application to make sure that there is a jurisdictional and legislative basis for doing so. There is clearly none in this case. Having learnt of that during the course of argument, the Applicant sought to withdraw the Application and indicated to me that he would do further research and bring a further Application. The Federal Magistrates Court Rules2001, and in particular Part 13 deal with the manner in which a proceeding can be ended. Rule 13.01 provides:
(1) A party may discontinue an Application or response by filing a notice of discontinuance in accordance with the notice set out in Part 1 of Schedule 2.
Sub rule 2 provides:
(2) A notice of discontinuance may be filed:
(a)at least 14 days before the date fixed for the final hearing of the application;
(b) or with the leave of the Court or a Registrar at a later time.
The final hearing of this matter was in fact the injunctive hearing today, 24 December 2002, it having been filed yesterday. Accordingly leave is sought and in this case I refused leave to discontinue. I did so on the basis that in my view this Application is completely misconceived and could also be dismissed on the alternative basis that it is an abuse of process of the Court. I make that comment on the basis that it is clear that there is no ability in a person such as the Applicant to bring an Application like this, that to do so would constitute an abuse of process.
I have primarily dismissed the Application for the grounds that I have referred but in my view it could be equally be dismissed as being an abuse of process. Accordingly, the Applicant having indicated that he may well bring another Application if given leave to withdraw, I decline to allow him to discontinue and have given judgment in the matter.
In view of the Applicant’s determination in this matter and the strong feelings that he clearly has about the injustice to the Sri Lankan bowler, Mr Muralitharan, an injustice which in my view has coloured his ability to see clearly limitations on what remedies might be available, it is appropriate in my view to make an order under Division 13.3 Rule 13.10 of the Federal Magistrates Court Rules 2001 staying generally any further claim to relief other than appeal against my decision brought in relation to this matter, because no reasonable cause of action is disclosed and the proceeding is an abuse of the process of the Court.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Bryant CFM
Associate: Peter Smith
Date: 17 January 2003
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