Dunne v Noonan
[2009] FMCA 362
•22 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DUNNE v NOONAN | [2009] FMCA 362 |
| HUMAN RIGHTS – Alleged racial discrimination – interlocutory application to have consent orders vacated and more broad-based injunction ordered – serious question to be tried – balance of convenience – matter of third party publication – whether applicant’s conduct constitutes acquiescence – application to vary existing injunction dismissed. |
| Human Rights and Equal Opportunity Discrimination Act 1986 (Cth) Racial Discrimination Act 1975 (Cth) |
| Archibold v Scully (1861) 9 HLC 360 Dr Spry CF, Equitable Remedies (7th ed, Law Book Co, 2007) |
| Applicant: | MAY LULU DUNNE |
| Respondent: | MICHAEL NOONAN |
| File No: | BRG 4 of 2009 |
| Delivered on: | 22 April 2009 |
| Delivered at: | Brisbane |
| Hearing date: | 15 April 2009 |
| Judgment of: | Burnett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Fleming QC |
| Solicitors for the Applicant: | Kerin & Co Lawyers |
| Counsel for the Respondent: | Mr Ashton |
| Solicitors for the Respondent: | Sparke Helmore Lawyers |
ORDERS
That the Application in a Case filed 8 April 2009 be dismissed.
That in the event that no application is made by either party within seven days for any other orders concerning costs, the order of the Court will be that the applicant pay the first respondent's costs of and incidental to the Application in a Case filed 8 April 2009 such costs to be assessed and that such costs be the first respondent's costs in the cause in any event.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 4 of 2009
| MAY LULU DUNNE |
Applicant
And
| MICHAEL NOONAN |
Respondent
REASONS FOR JUDGMENT
Introduction
On 25 February 2009 consent orders were made in the following terms, that is, inter alia:
“Until further order the first respondent will not publish at large or in any other way deal with the film footage taken of the applicant save for in the course necessary for completion of his PhD which may include the footage being shown to his named PhD supervisors and their nominated PhD examiners.”
The applicant now applies to have this order vacated and in its place have a broad-based injunction ordered in terms that the first respondent will not publish at large or in any other way deal with the film footage taken of the applicant.
The second, third and fourth respondents did not engage in this application. They are content to abide by the orders of the Court.
There is no dispute between the applicant and the first respondent concerning the approach to be taken by the Court. As submitted by the respondent’s counsel, the principles to be applied are those which apply at common law. This is notwithstanding that the application is set in the context of public law.
As Mason CJ observed in Castlemaine Tooheys v South Australia (1986) 161 CLR 148 at [53]:
“The principles governing the grant or refusal of interlocutory injunctions in private law litigation have been applied in public law cases including constitutional cases, notwithstanding that different factors arise for consideration. In order to secure such an injunction the plaintiff must show:
(1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the end of the trial of the action the plaintiff will be held entitled to relief;
(2) That he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and
(3) That the balance of convenience favours the granting of an injunction.”
Serious Issue to be Tried
Dealing then with the serious question to be tried, the applicant’s principal application is for relief in respect of alleged unlawful conduct contrary to s.18C of the Racial Discrimination Act 1975 (Cth) (the Racial Discrimination Act) the particulars of which I will detail shortly. However at the outset the applicant did, consistent with her duty under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (the HREOC Act), make a complaint to that agency. That complaint alleged racial hatred under the Racial Discrimination Act against each of the respondents.
A conciliation conference was convened on 29 May 2008. Only the applicant, the first respondent and the second respondent attended the conference. The third and fourth respondents elected not to attend the conference. The president decided there was no reasonable prospect of the matter being settled by conciliation and accordingly decided to terminate the applicant’s complaint under s.46PH(1)(i) of the HREOC Act.
It follows her rights to apply to this Court were enlivened by s.46PO of that Act. She did make application within the time prescribed in respect of her complaint.
No issue arises concerning the applicant’s prima facie entitlement to bring this application. In summary the complaint alleged is that the applicant is aboriginal. She alleges that the first respondent, Noonan, subjected her to racial hatred by depicting her as an intoxicated aboriginal woman in a stereotypical manner in video footage of her as part of his PhD project titled “Laughing at the Disabled: creating comedy that confronts, offends and entertains” or “Darren James’ Down Under Mystery Tour”.
The applicant claims that video footage of an event which occurred at a hotel in Boolya was taken and shown to QUT students at Mr Noonan’s PhD presentation seminar on 20 March 2007 and subsequently also uploaded onto a website of the Courier Mail; that occurred in August 2007.
The applicant alleged that the conduct of the second, third and fourth respondents by their involvement and support, production and/or screening, constitutes an act of racial hatred against her in conjunction with the conduct of the first respondent. In particular the applicant complains that she was filmed while she was intoxicated, while other white persons who were also at the hotel were not filmed. She says the footage depicted her as an intoxicated aboriginal in a stereotypical manner and that the footage was shown to QUT students and then uploaded to the Courier Mail website.
In response to this the respondent, Mr Noonan, says the case against him is weak. A number of points were made about the manner in which the application has been pleaded. In submissions made by Mr Ashton of counsel who appeared for the respondent he contended that the applicant’s case on the primary application was weak, particularly because the necessary elements for such a case as discussed in Creek v Cairns Post Pty Ltd (2002) 120 FCR 243 and Jones v Scully (2001) 112 FCR 352 were not addressed.
He submitted the applicant must show that the acts in question were “reasonably likely to offend or humiliate a person in the applicant’s position”. He stated that the test was an objective test in respect of the behaviour in question and what the applicant felt was not relevant.
He continued that to “offend, insult, humiliate or intimidate” are profound and serious effects and are not to be likened to mere slights. He relied upon the observations by Keifel J in Creek v Cairns Post Pty Ltd (supra) in support of that contention[1]. He continued that the nature or quality of the act in question is tested by the effect which it is reasonably likely to have on another person and of the particular racial group where the Court would be conscious of the need to consider the reaction from that person or the group’s perspective.
[1] At [16]
He continued that the acts complained of must have been done “because of” the race, colour or national or ethnic origin of the person or some or all of the people in the group. He contended that it was sufficient that this is one of the reasons and so that the question becomes whether “anything suggests race as a factor in the respondent’s decision” to do the act complained of.
In his submission the applicant had not really addressed these issues at all in her principal application nor in the interim application. He submitted that the applicant had approached the matter as if it were a personal defamation proceeding rather than a statutory cause of action and thus her points of claim assert, in florid style, what might be regarded as imputations in a defamation case although she complains of injury to her “character, credit and reputation”. Nowhere does she allege that the first respondent’s acts complained of were “reasonably likely in all the circumstances to offend, insult, humiliate or intimidate”, referring to para.10 in the points of claim.
As was noted in Jones v Scully (supra) at para.12, the defamation analogy is a useful tool. In that decision Healy J proceeded at [133] to note:
“But it is necessary to address s.18C in terms for the reasons earlier explained and for the reason that whereas the law of defamation has as its focus the lowering of a person in the estimate of his/her fellows, the RDA includes within its focus the likely effect of the conduct upon the members of the ethnic group itself.”
Close examination of paras.10 and 11 of the amended points of claim supports the respondent’s complaints in that regard. The pleading alleges evidence that may support the first enquiry to be addressed as stated by Keifel J in Creek v Cairns Post Pty Ltd (supra) at para.13, namely “can the publication in the circumstances be regarded as reasonably likely to offend or humiliate a person in the applicant’s position”.
However to satisfy a claim under s.18C the facts must also support an enquiry as to “whether anything suggests race as a factor in the respondent’s decision to publish”: Creek v Cairns Post Pty Ltd at [28].
I accept Mr Ashton’s submissions that the pleading at para.11 does not strictly address this issue. Additionally the applicant’s material to date does not appear to necessarily deal with the issue either. However the parties have not finished the filing of material. Only an overly pedantic approach to the present pleading would lead to the conclusion that the applicant does not intend to place evidence before the Court addressing this causation factor.
In any event, as can be seen from the examination of the decision in Jones v Scully (supra), in determining the matter of causation the Court can have regard to the nature and publication of the alleged offending material without more[2]. Against that approach it can be seen that the pleading defect can readily be resolved and any present defect would not necessarily be determinative against the applicant.
[2] id [136]
This is particularly so if the evidence produced in response to the first enquiry necessary to be undertaken will of itself open the second matter of enquiry for resolution. In any event the first respondent has clearly placed that matter in issue by para.12.4 of his defence.
Although I accept the pleading may require some recasting I am of the view that there is a serious issue to be tried concerning whether an action is made out by the applicant over s.18C, particularly in respect of the enquiries directed by the legislation as expressed in Creek v Cairns Post Pty Ltd (supra).
In any event, matters do not rest there. The respondent, Mr Noonan, maintains that in the event the applicant can establish a contravention of s.18C, he is entitled to an exemption under s.18D. At para.12.6 of the first respondent’s defence the allegations made at paras.(a) to (f) pick up the language of s.18D. It is unfortunately that the pleading does not expressly plead s.18D and to that end it may support a complaint by the applicant about its adequacy. However, the nature of that defence and the first respondent’s reliance upon s.18D have been known by the applicant since before the complaint was terminated before HREOC.
The other significant issue alleged by the first respondent concerns consent, alleged at para.10 of the points of defence. A significant factual contest arises here. Two affidavits have been filed by the respondent supporting a contention that the applicant signed a written consent form entitled “personal release form” authorising the first respondent to, inter alia, record and video the applicant and use the recording.
The applicant has filed an affidavit from a document examiner expressing the opinion that the signature is a simulated forged signature, not written by the applicant; in other words it is a fraud.
The applicant herself, in an affidavit filed in the application, says that she has no recollection of signing a personal release form on the night in question and that the signature on the personal release form is not hers as “the writing is very big and messy”.
Her affidavit deposing to those matters was filed after Mr Mahaines affidavit. Its expression invites the prospect at trial of close examination of the circumstances when she is alleged to have signed the document. As Mr Fleming of Queen’s Counsel submitted for the applicant, if the factual findings favour the applicant, the findings on that issue would also address other factors such as reasonableness and good faith, which are necessary to be addressed under s.18D. It may also assist the applicant in proving her own claim: see again the comments earlier noted on Jones v Scully (supra).
Clearly there is a serious factual issue to be tried in respect of this matter. That issue can only be determined at trial, in the event the applicant succeeds in demonstrating unlawful conduct under s.18C.
Adequacy of Damages
Given the personal nature of the relief no issue arises concerning the adequacy or otherwise of damages as a remedy. That leads me then next to consider as the next most significant issue, the balance of convenience.
Balance of Convenience
The thrust of counsel’s submissions were directed to the balance of convenience. For the applicant Mr Fleming submitted that the balance of convenience favoured the enlarged injunction because first the footage in question was only of a limited extent in the context of the overall footage for the entire PhD project. Secondly, the footage would still be available to the respondent to use except it would be limited to its publication for private use only; and thirdly, that the applicant has suffered hurt and embarrassment and that that hurt and embarrassment caused to her far outweighs the benefit to the respondent of being permitted the continuing use in accordance with the present orders, particularly when regard is had to the manner in which the applicant alleges the footage was secured.
I should note that so far as the first point was concerned, Mr Fleming submitted that the applicant’s image could be pixillated out. Whilst Mr Fleming made that submission there was no evidence to support that suggestion and the matter was not conceded by the respondent.
I have to say at this point that, for reasons that follow, I did not find those submissions particularly persuasive, especially when considered against both the evidence on the discretionary matters and the other legal matters contended by the respondent.
Although the footage is said to be short in length the evidence of Ms Willis, a solicitor for the respondent who swore an affidavit on information and belief which was filed by leave on the day of the application, deposed first that the relevant footage was one of three episodes created for a practical work component of a PhD thesis. Secondly, the footage contains images of settings with a number of different people at the hotel. The applicant features in the background of many of these shots. It was deposed that the respondent would be unable to use any of that footage if the operation of the injunction were enlarged. It would thereby render the majority of one-third of the practical work component of the PhD unusable. Thirdly, she swore that the removal of the hotel images would also affect other scenes which make reference to the visit being made to the hotel, people interviewed at the hotel and other issues described at the hotel. Finally she swore that if the respondent were unable to use the footage there would be a serious compromise of the themes and topics of the matter and of its research integrity which so far has taken approximate two and a half years’ effort. Those matters tend to suggest that despite the applicant’s submission that the footage involving her was not lengthy; to give effect to any order sought would have an impact far more broad-ranging than the applicant anticipates.
The respondent is required to conduct his final seminar by 26 July 2009. He has to submit his thesis and practical works for external examination by 26 October 2009. This will require him to show the work to his supervisors. He cannot practically deal only privately with the footage if he has to show works to others.
The respondent says that he is already behind on his PhD timetable and has already been granted extensions. He is concerned that no further extensions would be granted. Furthermore, in addition to the delay that may be occasioned by any orders at this time, he is concerned that his scholarship and financial support would be put at risk. Ultimately it would seem that if he is not able to progress his timetable, his prospects of completing his PhD could be fatally compromised.
The trial dates in this matter are listed for early September and as I have already foreshadowed, that will enable the matter to be disposed of to meet that timetable. Efforts to quickly resolve the dispute would be rendered otiose if the respondent was to be delayed until after a successful trial before being able to proceed with these intervening steps, only to find that no further extensions would be granted or that his funding would be terminated, thereby imperilling his capacity to progress further with the PhD undertaking.
Against that, the harm to the applicant would be confined to the respondent’s work supervisors. It is to be expected that their viewing of this material would be professional and dispassionate given the purpose for which it would be presented to them. In any event as the evidence demonstrates, this material has already been examined by them on earlier occasions and it is difficult to anticipate how further viewing by them would compound the applicant’s complaints.
Accordingly, the viewing of the footage for that limited purpose would not be harmful in my view as for instance may occur if there were publication at large.
It follows that when those matters are considered and weighed and of course for reasons that I will address in a moment concerning intermediate third party publication, the balance favours the respondent’s position, that is that the prejudice to him far outweighs that which would be experienced by the applicant.
The matter of third party publication also needs to be addressed as it is relevant in this instance to the exercise of the discretion. The allegedly offending material is already in the hands of others. Aside from those who presently have that material for the purpose of the PhD assessment, the others include the Courier Mail newspaper, The Australian newspaper and the Federal Court.
The material came into the possession of those agencies because of proceedings in the Federal Court which were commenced by two academics at the QUT. In addition and perhaps more significantly, the relevant footage has also been placed on You Tube, a public access internet site.
It was presented on You Tube by Mr Adrian Strong and Ted Watson. Ted Watson is described as the applicant’s attorney in a letter written on her behalf to HREOC incorporating the complaint on 9 October 2007.
The footage contained audio commentary on the issues including the complaint that the footage represented the applicant as drunken and of loose virtue. It was uploaded on You Tube on 26 September 2007, that is, before the complaint to HREOC lodged on 9 October 2007.
Next is the matter of acquiescence. Although the applicant has provided an explanation for her change of attitude, her conduct to consenting to the terms of the injunction granted on 25 February 2009 which particularly by its form permits the respondent to only deal with the footage for the completion of his PhD, arguably constitutes an acquiescence to the conduct she now complains of and seeks to restrain, that is the publication of that footage to his PhD supervisors and others associated with the assessment of his PhD.
In respect of that matter, in Dr Spry CF’s text, Equitable Remedies (7th ed, Law Book Co, 2007) at [440], the learned author stated:
“The defence of acquiescence arises if two conditions are satisfied: first, there must, on the part of the plaintiff, be an assent or lying by in relation to the acts of another person and secondly, in view of that assent or lying by and consequent act, it must be unjust in all the circumstances to grant the specific relief that is in question.”
The most common example of the application of the doctrine of acquiescence is seen in the statement of Lord Wensleydale who stated:[3]
“If a party who could object lies by and knowingly permits another to incur an expense in doing an act under the belief that it would not be objected to, and so a kind of permission may be said to be given to another to alter his condition, he may be said to acquiesce.”
Dr Spry concluded,[4]
“This principle applies a fortiori where the plaintiff has not merely lain by, but has expressly or impliedly assented.”
[3] id at [441] quoting from Archibold v Scully (1861) 9 HLC 360 at 383
[4] id at [441]
The argument made against acquiescence by the applicant is that when the order was made on 25 February 2009 she had not watched the footage of her shown on the internet or during the respondent’s confirmation seminar for a long time as she was so humiliated by it. However after watching the footage again in March 2009 and reliving the humiliation and hurt caused by the footage which she found offensive and insulting, she was no longer willing to consent to the February order. In other words she had changed her mind.
Significantly, however, the applicant made it plain in para.26 of her affidavit that she had viewed the footage in August 2007. Accordingly the only reasonable inference available is that her decision to consent to orders of 25 February 2009 was informed by that experience in August 2007.
Again, referring to Dr Spry, as he noted at [442]:
“…a plaintiff is not ordinarily refused relief on the ground of acquiescence if his inaction is due to ignorance of material facts. Ordinarily is sufficient that at the relevant time the applicant knew of the facts or matters that gave rise to his right to equitable relief, even though he may not have fully understood, as a question of law, the rights that he possessed.”
In this case the applicant had knowledge of the material contained within the video footage. She was, at the time that she entered into the consent orders, represented by legal advisers and despite those two matters, evident at the time the orders were entered into, she gave her informed consent to the present form of order.
In my view the circumstances clearly bespeak acquiescence by the applicant to the form of orders she now seeks to have varied. However no material change of circumstances or additional prejudice has been demonstrated. On this basis alone her application ought fail.
In any event the principal ground advanced by the first respondent on this issue was directed to the utility of the injunction, particularly if there is a risk that to make an order may have the effect of reflecting some considered view by the Court: see Coles Supermarkets Australia Pty Ltd v Stateland Pty Ltd Developments [2009] NSWSC 1425 and Hughes v Western Australian Cricket Association (1986) ATPR 40 -676.
As was submitted by Mr Ashton, given the material has already been provided to those to whom the applicant now seeks to restrain and others beyond that group, it is clear that the injunction sought would possibly achieve nothing but to delay the applicant’s completion of his PhD with the attendant risk to him.
Insofar as any damage has occurred to the applicant it has passed. As I have earlier noted I cannot see how the repeated publication of the material to the respondent’s PhD supervisors can occasion the applicant further additional harm.
It follows that to allow the application would result in an inutile injunction. That would then lead to the further risk that by the granting of an inutile injunction it may reflect the Court as having reached some concluded view concerning the merits of the substantive application. Of course that is not the case in any event, however it is prudent not to excite the prospect of such an interpretation.
Likewise, the consideration of this ground militates against the relief sought and I consider it warrants rejection of the applicant’s application. That interesting and esoteric issue however finds itself being addressed in the ultimate conclusion in the application.
Finally the respondent contends that the status quo ought to be preserved. The status quo is represented by the orders made on 25 February 2009. Again referring to Dr Spry in Equitable Remedies (supra) at [454] he summarised the matters to be considered in respect of that application as follows:
“In such cases the basis – that is applications involving questions for status quo – that underlies the grant of relief is that the risk of detriment or inconvenience to the applicant is so great that, notwithstanding any hardship to the defendant or other persons that the issue of an interlocutory injunction may cause it is nonetheless just that the Court should act to preserve the subject matter that is in dispute or otherwise to protect the plaintiff’s position. It is clear that in exercising this very general discretion the court is concerned primarily with such matters as the degree of probability that the material rights of the plaintiff exist, the degree of probability that the defendant will act as the plaintiff alleges, the inadequacy of other remedies or forms of protection that are available and any other matters which bear upon hardship as between the parties or which affect third persons and which render it more just to grant, or not to grant, as the case may be, the interlocutory injunction that is sought. The weight of any of these matters in particular circumstances in question depends upon the weight of other matters that are present.
I have addressed many of those matters earlier in this decision such as the competing rights of the parties, hardship to the applicant including the inadequacy of other remedies to the applicant, likewise the significant potentially adverse effects upon the respondent were he to be restrained from using the material.
On the basis of those matters and in particular because in this case the status quo reflects the informed decision of both parties consensually agreed on 25 February 2009, in respect of which there has been no material change, I consider that on balance the status quo ought be preserved.
In any event in my view the applicant has not demonstrated any basis for granting the injunction put in place by the consent orders and on that basis the application ought fail.
However, before concluding a further matter ought be addressed. A further matter submitted by the respondent concerned the basis for the applicant's application. Mr Ashton correctly submitted, in my view, that the Court, as a Court of statutory jurisdiction, can only exercise the powers to make orders of the kind sought if they were in aid of the Court's jurisdiction. In this case, to ensure the effective exercise of the jurisdiction under s.46PO invoked in the proceeding: Li v Minister for Immigration and Multicultural Affairs [2001] FCA 1414: Patrick Stevedores Holdings Pty Ltd v Maritime Union of Australia at [33], citing with approval, Jackson v Stirling Industries (1987) 162 CLR 612.
The argument proceeded that given the existence of the current order, the applicant had failed to demonstrate how the order now sought could better "ensure the effective exercise of (the Court's) jurisdiction invoked". It was submitted that the applicant did not explain how the order now sought will serve her own interim needs or assist the Court in relation to its own jurisdiction.
As he submitted, this failure underlies that what is being sought is founded upon the applicant's feelings of personal embarrassment and hurt; but as has been submitted, and consistent with authority these matters are not relevant to the cause of action. See Creek v Cairns Post Pty Ltd. That interesting and esoteric issue however finds itself being addressed in the ultimate conclusion in the application. Clearly, if the circumstances warranted a review of the Court's orders, that could only occur in circumstances where the orders were appropriate having regard to the Court's duties and powers under s.46PO.
If it is unnecessary to vary the Court's orders, then the examination of that issue is otiose. For reasons which I have addressed, I do not consider it is immediately necessary in view of my determination on other issues.
Conclusion
It follows then that the applicant has not demonstrated any basis for varying the injunction already in place by operation of consent orders on 25 February 2009. The application fails.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Burnett FM
Associate: Beverley Schmidt
Date:28 April 2009
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