Firew v Busways Trust
[2003] FMCA 193
•16 May 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FIREW v BUSWAYS TRUST & ORS | [2003] FMCA 193 |
| PRACTICE AND PROCEDURE – Human rights – racial discrimination – dismissal of claim against respondents not named in notice of termination – costs. |
Human Rights and Equal Opportunity Commission Act 1986, s.46PH(2)
Racial Discrimination Act 1975, ss.9(1), 18C
Federal Magistrates Court Rules 2001, Rule 13.10
Ball v Morgan & Anor [2001] FMCA 127
| Applicant: | SENTAYEHU FIREW |
| First Respondent: | BUSWAYS NORTH PTY LTD, BUSWAYS SOUTH PTY LTD, (BEING PROPRIETORS OF THE BUSWAYS TRUST) |
| Second Respondent: | AUBURN HOSPITAL |
| Third Respondent: | IVECO AUSTRALIA PTY LTD |
| File No: | MZ 325 of 2003 |
| Delivered on: | 16 May 2003 |
| Delivered at: | Melbourne |
| Hearing Date: | 16 May 2003 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Applicant: | In person |
| First Respondent: | Mr T. Robey (Employee of Busways Trust) |
| Second Respondent: | No appearance |
| Solicitor for the Third Respondent: | Ms S.M. Rey |
| Solicitors for the Third Respondent: | Blake Dawson Waldron |
ORDERS
The applicant be granted leave to amend the description of the first respondent in the application by deleting "Busways Ltd" and in lieu thereof inserting "Busways North Pty Ltd" "Busways South Pty Ltd" "Busways East Pty Ltd" and "Busways West Pty Ltd" being proprietors of the Busways Trust.
The Applicant be granted leave to amend the description of the Third Respondent by deleting “Iveco” and inserting lieu thereof “Iveco Australia Pty Ltd”.
Leave be granted to the Third Respondent to make application for summary dismissal.
So much of the rules of the court are dispensed with that would otherwise prevent the Third Respondent from making the application for summary dismissal this day.
The application filed 4 April 2003 as against the Second and Third‑named respondents be dismissed.
The Applicant shall pay the Third Respondent's costs fixed in the sum of $1000.
The Applicant and the First Respondent shall attend a mediation on or before 30 June 2003 to be conducted by a Registrar of the Court appointed by the Registrar of the Court.
The proceeding be otherwise adjourned for further directions on 7 July 2003 at 9.45 a.m.
Liberty to apply is granted to the parties in relation to any matters arising out of these orders.
Costs otherwise reserved.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 325 of 2003
| SENTAYEHU FIREW |
Applicant
And
| BUSWAYS NORTH PTY LTD, BUSWAYS SOUTH PTY LTD, BUSWAYS EAST PTY LTD and BUSWAYS WEST PTY LTD (BEING PROPRIETORS OF BUSWAYS TRUST) |
First Respondent
And
| AUBURN HOSPITAL |
Second Respondent
And
| IVECO AUSTRALIA PTY LTD |
Third Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
This is an application filed 4 April 2003 by Sentayehu Firew (the applicant). In the application he names as the first respondent “Busways Ltd” and second respondent “Auburn Hospital”, with the third respondent referred to as “Iveco”.
When the matter was heard this day at the first hearing, the applicant appeared in person. Mr Robey was permitted to attend for and on behalf of the first respondent and no evidence of service provided. There was no appearance for the second respondent. Ms Rey, a solicitor, appeared for and on behalf of the third respondent. The correct title of the third respondent I take to be, otherwise advised, Iveco Australia Pty Ltd and should be amended accordingly.
I should add that at the outset the court had some concerns about the correct identification of the parties in this matter. As indicated in the application the first respondent is referred to as “Busways Ltd” and the third respondent as “Iveco”. In the information sheet which accompanies the application the third respondent is referred to as “Iveco Australia”.
In the notice of termination which has been filed, the Human Rights and Equal Opportunity Commission (the Commission) purports to issue a notice of termination pursuant to s.46PH(2) of the Human Rights and Equal Opportunity Commission Act 1986 (the Act) and the notice of termination refers to the applicant as the complainant and refers to “Busways Group Pty Ltd and Others” as respondents. The notice of termination has two attachments. One is attachment A, purporting to be the full reasons for the decision of the Commission; the second is attachment B, referred to as a “copy of the original complaint”.
Attachment A refers to the complaint against “Busways Group Ltd” and Others, so that there is no specific reference in attachment A or indeed in the notice of termination to those parties now said to be second and third respondents in this application. Attachment B contains the following documents, not necessarily in date order:
·A document entitled Statement of Complaint. It is signed by the applicant and dated 21 October 2002.
·An undated letter to the Commission which refers to “Complaints Against 1 Busways Ltd, 2 Auburn Hospital, 3 Iveco Ltd”.
·An undated letter to the Commission from the Applicant with a handwritten notation “received 15/1/03” and which refers to “Complaints Against” Busways Ltd”.
·A letter from Ms Rocky Clifford, Director Complaint Handling to the Applicant dated 10 March 2003.
In the Statement of Complaint, the following statement appear under the heading “Summary”:
“I commenced employment with the respondent Busways Group Pty Ltd.”
The statement then goes on to refer to specific complaints against that alleged company.
I should indicate at the outset that although “Busways Group” has been referred to in the response of the first respondent, it was not so referred to in the application. The court has been advised that there is in fact no company called “Busways Group Pty Ltd”, nor is there a company called “Busways Ltd”. There is a registered business name of Busways Group conducted by corporations not accurately identified before the Commission or by the Applicant in the Application. The first respondent clarified its identity during the hearing and I will make appropriate orders permitting the applicant to amend the description of the first respondent to reflect the true corporate and legal personality. The identification of the corporate personality of the first respondent did not seem to be a matter to which the Commission had turned its mind. As I indicated, reference is made to Busways Group Pty Ltd and indeed Busways Group Ltd. Neither exists as independent corporate legal identities.
It is important to analyse further the contents of the documents currently before the court. Ms Rey who appears for the third respondent has submitted that this court should dismiss the claim against her client, and although there is no representation for the second respondent I interpolate as a matter of consistency likewise against the second respondent on the basis that there is no notice of termination issued by the Commission relating to either the second or third respondents, and in the absence of a notice of termination, this court does not have jurisdiction to entertain the application and does not have jurisdiction to certainly entertain an application against respondents who are not the subject of a notice of termination.
The matter goes further in that Ms Rey submitted that in any event her client and indeed the second respondent were not the respondents to the complaint ultimately dealt with by the Commission and the subject of the notice of termination which is before the court and dated 14 March 2003.
In the material to which I have referred, the Commission by its letter dated 10 March 2003 refers to -
“Two undated complaint forms along with two undated letters received by the Commission on 5 May 2003 (sic) in which you raised certain issues concerning Auburn Hospital (‘the Hospital’) and Iveco Australia Pty Ltd (‘Iveco’).
You claim that these two organisations were in a conspiracy with Busways Group Pty Ltd (‘Busways) the company you currently complain against with this Commission, and other agencies to harass, victimise and discriminate against you because of your race.”
It is clear that the first paragraph of that letter of the Commission dated 10 March 2003 contains an error in terms of the date ‘5 May 2003’. The applicant has indicated that it is his belief that the correct date should be 5 March 2003. It is further noted that there is no reference in that letter to the document that I referred to earlier, namely, the statement of complaint dated 21 October 2002. The court, further, does not have before it documents referred to by the Commission as "two undated complaint forms". It does have the two undated letters to which I have referred, and the applicant for the present purposes has identified the two undated letters which form part of attachment B on the file as being the relevant two undated letters which I take to be the ‘forms’ referred to by the Commission.
For the complaint to be dealt with by this court by way of this application against the second and third respondents, it is my view that this court needs to be satisfied that there is in existence a notice of termination issued pursuant to s.46PH(2) of the Act. On a first reading of the notice of termination, where it refers to “Busways Group Pty Ltd and Others”, I was minded to take the view that the reference to "others" may be a reference to the second and third respondents.
It is not in dispute, however, that despite the reference to the other two respondents in one of the two undated letters to which I have referred and in the correspondence from the Commission to the applicant dated 10 March 2003, the second and third respondents were not provided with copies of the complaint, were not invited to participate in any conciliation process and it would appear that although receiving the complaint, the president has not conducted any conciliation process which in any way could be said to involve or incorporate the second and third respondents.
It further seems clear to me that the letter from the Commission which is dated 10 March 2003 was a letter which effectively advised the applicant that the Commission was not going to deal with the complaints against the second and third respondents. Thereafter it is reasonable for me to conclude that the Commission did not see it as appropriate that it should either convene a conciliation conference or issue a termination notice.
It is relevant to refer to the Commission's letter dated 10 March 2003. The Commission in that letter refers to the complaints against ‘Auburn Hospital’ and ‘Iveco’. In addition to the first paragraph which I have already recited, the Commission states:
“In relation to Auburn Hospital you claim that when your wife gave birth to your second child in March 2002, the staff members at the hospital were ‘unfriendly’, ‘hostile’, ‘pushy’ and ‘verbally abusive’ to you and your wife. You state that the hospital treated you and your wife in such a way as they are linked to Busways because the son-in-law of the workshop's director at Busways worked at the hospital at the time. You further state that a week after your wife left the Hospital, you met the Hospital's Managing Director and expressed your concerns regarding the procedures and general conduct of the hospital staff members.
In relation to Iveco, you state that you were employed by Iveco in May 2001 and were forced to resign in November 2001 because you were subjected to general harassment, vilification, victimisation and discrimination by unidentified staff members of Iveco.”
The Commission then sets out the alleged harassment and discrimination. Having set out those matters, the Commission states:
“I have considered the information you have provided to the Commission and wish to advise that your complaint does not appear to be about the type of discrimination this Commission has the authority to inquire into. The Commission is only able to investigate complaints of discrimination in specific areas of public life. It happens when someone is treated less favourably than another person and the reason for that treatment is his or her sex, race or disability.
You should note that it is not sufficient for a person to show that he or she is of different race, sex or has a disability and is not happy with the treatment that he or she has received. He or she must show that the unfair treatment was based on, wholly or partly, or sufficiently connected to his or her race, sex or disability.”
The Commission then refers to s.9(1) of the Racial Discrimination Act 1975 (the RDA). It goes on to refer to the correspondence and states the following:
“I note in your correspondence you have not provided any specific information on how your race was a factor in the alleged treatment by the Hospital, Iveco and their staff members. Many of the allegations appear to be quite unspecific, lack of details such as dates when the incidents occurred, the surrounding circumstances of the incidents that were involved and how the alleged acts were done because of your race. You have provided the Commission with no information, copies of documents and/or objective evidence to corroborate your allegations.
You also claim during your employment at Iveco, the Manager purchasing of Iveco racially vilified you by asking you ‘How much Australian do you feel?’”.
The Commission then refers to s.18C of the RDA which makes it unlawful for a person —
“to do an act, otherwise than in private, that is reasonably likely in all the circumstances to offend, insult, humiliate or intimidate another person or a group of people and the act is done because of the race, colour or national or ethnic origin of the other person or some or all of the people in the group. The words ‘reasonably likely’ mean that the test for offence, humiliation and intimidation must be an objective one. It is a question of fact in every case.”
The Commission goes on to say —
“Whilst I appreciate that the alleged remark, if made, may have been personally offensive and hurtful to you, ‘in all the circumstances’ the remark in itself would not meet the objective test under the racial hatred provisions of the RDA. My responsibility is to bear in mind that the objective of Parliament in introducing the legislation was to provide redress for serious incidents of racial hatred. Even if the remark were made, there is no objective evidence before me to suggest that the recognition of your rights under section 9 of the RDA was nullified or impaired because of the alleged remark.
I have carefully considered the information you have provided to the Commission and I am of the view that there is no or insufficient objective evidence to indicate that the alleged treatment you have received was based of (sic) your race. Under the circumstances, I am not able to accept your complaint against Auburn Hospital and Iveco and, accordingly, I have decided that the Commission will not be taking further action in relation to this matter and the matter is now closed.”
The Commission then goes on to refer to the time limit of 12 months applicable and notes the complaint in this case was lodged more than 12 months after the alleged unlawful discrimination. The Commission concludes:
“In conclusion, whilst I acknowledge that it might have been stressful to you and your wife at the time due to the alleged treatment, I am not able to accept your correspondence as a complaint for investigation and the Commission will not be taking further action in relation to the matter.”
Throughout my recital of that letter from the Commission I have referred to it being a letter from the Commission. As I indicated, however, it is a letter from the Director of complaint handling of the Commission. The difficulty the court has in a matter of this kind when faced with that correspondence, dealing as it does with the first of the undated letters which refers to the second and third respondents, is endeavouring to characterise that letter as being other than a letter advising the applicant that the complaint in its current form then before the Commission was not going to be dealt with and was not going to be processed. It is significant that the Commission states that it will not be taking further action in relation to the matter and the matter is “now closed”. It is also significant that the author of the letter states: “I am not able to accept your correspondence as a complaint for investigation and the Commission will not be taking further action in relation to the matter.”
That letter, as I indicated, is dated 10 March 2003. The document which is headed ‘Statement of Complaint’ predated that letter as it was dated 21 October 2002 and does not refer to the second and third respondents. Likewise, the Commission's reasons which are ‘Attachment A’ do not refer to complaints against the second and third respondents and indeed the second of the undated letters likewise does not refer to the second and third respondents.
I conclude therefore that although an attempt was made to lodge and raise a complaint against the second and third respondents with the Commission by the undated letter to which I have referred, that attempt was met with the correspondence dated 10 March 2003 which indicated that the complaint was not going to be acted upon by the Commission and that no further action would be taken in relation to it; that is, the complaint was not accepted, and having not been accepted, was not then the subject of the normal processes that would be in place of conciliation and ultimately, if it be the case, a notice of termination.
Accordingly, I find that there is no notice of termination issued by the Commission in relation to any purported complaint against the second and third respondents.
That being the case, it is clear to me that in the present application the only complaint properly before this court, the subject of a termination notice, is a complaint against the first respondent who in due course will be properly and accurately identified. I am satisfied that in the exercise of my discretion this court has the power under Rule 13.10 of the Federal Magistrates Court Rules 2001 (the Rules) of its own motion to dismiss an application at an early stage. That power is a power that the court possesses, in any event, as an inherent power of this court. For the reasons that I have just given, the appropriate order is that the application against the second and third respondents be dismissed.
In this application I had indicated to the third respondent that I was prepared to permit an application to summarily dismiss the claim against the third respondent and by implication the second respondent who does not appear and who has not, on the material, been properly served with the affidavit and application in any event. To the extent that it is necessary it would dispense with so much of the rules that would otherwise prevent the summary dismissal application being heard this day.
Costs
Upon indicating that it was my intention to dismiss the claim as against the second and third respondent, Ms Rey, who appears for the third respondent, seeks an order that the applicant pay her client's costs. The costs it was submitted, as I understand it, should follow the event of being brought to this court on this application whereby the third respondent has incurred costs and expenses. During the course of submissions, apart from referring to the costs effectively following the event, which was in a sense the thrust of the submissions though not precisely set out in that form, reference was also made to the application and the affidavit in support. The affidavit in support sworn 2 April 2003 it was submitted does not provide any specific allegations against the third respondent which would enable the third respondent to understand and appreciate the claim against it.
I add that it is perhaps of more significance in the present case where it is common ground that the third respondent at no stage received a copy of any undated complaint to the Commission, it was not advised of the complaint by the Commission and did not take part in any proceedings of any kind before the Commission, whether by way of filing a response or participating in conciliation proceedings.
So, therefore, the significance of the affidavit in support of this application is perhaps greater in this case than it might be in a case where a potential respondent was properly informed about proceedings or a claim considered by the Commission. It is said, therefore, that that further factor should encourage the court to make an order for costs.
The applicant has opposed the order for costs and has done so essentially on the basis that arising out of my decision the error made by the applicant in naming the second and third respondents, at least in part, is an error which was made having regard to the confusion surrounding the circumstances of the undated complaints and correspondence from the Commission and indeed the confusion which may have arisen from the notice of termination itself which does refer to “Busways Group Pty Ltd and others”, I emphasise "and others".
Further, the applicant has said, and I accept, that he is a person without legal training and therefore a person who is more likely not to understand the technicalities of this matter or indeed appreciate the significance of the items of correspondence. I indicated during the course of the exchange of the submissions that I had some sympathy for that view. It seems to me that on a proper consideration of all the material, which I have referred to in my judgment, there is a great deal of confusion about the identity of the parties and indeed confusion about characterising exactly how the Commission dealt with what is described as original complaint naming the second and third respondents in the undated correspondence which was the subject of the response by the Commission dated 10 March 2003.
If the court were minded to make an order for costs, then the order may be in accordance with Schedule 1 of the Rules. I note that the costs in that schedule refer to ‘event-based costing’. For a “Stage 1” application opposing an application to completion of the first court day, which is the current stage, the costs that are set out are $1820 plus a daily hearing fee, which for a half day hearing is a further amount of $685. That is roughly an amount of $2500 which would be otherwise the subject of an order.
The applicant further in opposition to the claim for costs states that apart from the initial filing fee he was not aware that in bringing an application to this court he would be exposed to the risk of any costs order or expense, as I indicate, save and except for the filing fee. That perception I accept as a perception that he may have genuinely held, but of course it is a false perception. Once proceedings are brought to this court following a termination notice or otherwise being dealt with by the Commission and once any party names as other parties the respondents to an application who incur legal expenses and in addition suffer the inconvenience and trouble of attending court, there should be no misunderstanding that at least potentially, as this is a court of law, that costs are an issue between the parties and the court has a discretion to award costs.
There is no reason why a court hearing a human rights matter should not apply the normal principles which apply to other applications; that is, that costs would normally follow the event. (see Ball v Morgan & Anor [2001] FMCA 127). However, the court has a very broad discretion as to whether to make an order for costs and, if so, has a further discretion under the rules and generally to fix those costs.
In the present case I am satisfied that a significant reason for the involvement of the second and third respondents arises from the confusion generated by the matters to which I have already referred.
I am further satisfied the unrepresented applicant in the present case had perhaps little or no understanding of the practice and procedure. However, I also am satisfied that the current application and affidavit in support is sufficiently vague and uncertain as to not provide the second and third respondent, particularly the third respondent, with any or any particular details about the claim.
I should stress that in fact when the matter proceeded I stood the application down to enable Ms Rey to actually examine those documents which were otherwise part of Attachment “B” on the court file and which included the undated complaints and correspondence which the third respondent had not previously seen.
In all the circumstances, in my view, it is appropriate that there should be some order for costs, but not in the sum which would arise if I were to apply Schedule 1 of the Rules. A significant and substantial reduction should be made which, on the one hand, provides some benefit to the applicant given the matters that I have accepted in terms of confusion and the like, and secondly, however, still should provide a degree of compensation to a respondent brought before this court on an application which at least in its supporting affidavit did not have much substance but in any event an application which ultimately was destined to fail as the respondents were not the subject of a notice of termination.
For those reasons in exercising my discretion I will order that the applicant pay the third respondent's costs fixed at the sum of $1000.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 16 May 2003
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