Gama v Qantas Airways Ltd
[2006] FMCA 11
•16 January 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GAMA v QANTAS AIRWAYS LTD | [2006] FMCA 11 |
| HUMAN RIGHTS – Race and disability discrimination in employment – interlocutory application to strike out certain allegations from the applicant’s points of claim – whether allegations of matters pre-1998 can be heard – whether proceedings of this nature fall under the ambit of s.14 Limitation Act 1969 (NSW) – whether the points of claim contain allegations which arise out of the same or substantially the same acts, omissions or practices that were the subject of the terminated complaint. |
| Human Rights and Equal Opportunity Commission Act 1986, s.46PO Limitation Act 1969 (NSW), s.14(1) Judiciary Act 1903 (Cth), s.79 |
| Shahbahram Ardeshirian v Robe River Iron Associates (1993) 116 ALR 173 Charles v Fuji Xerox Australia Pty Ltd [2000] 105 FCR 573 Travers by her next friend, Travers v New South Wales [2000] FCA 1565 Bender v Bovis Lend Lease Pty Ltd [2003] 175 FLR 446 |
| Applicant: | WILLIAM CHARLES GAMA |
| Respondent: | QANTAS AIRWAYS LTD |
| File Number: | SYG 1488 of 2005 |
| Judgment of: | Raphael FM |
| Hearing date: | 22 December 2005 |
| Date of Last Submission: | 22 December 2005 |
| Delivered at: | Sydney |
| Delivered on: | 16 January 2006 |
REPRESENTATION
| Counsel for the Applicant: | Ms P Gormly |
| Solicitors for the Applicant: | Agostini Jarrett Pty Ltd |
| Counsel for the Respondent: | Ms K Eastman |
| Solicitors for the Respondent: | Minter Ellison |
ORDERS
The applicant is required to file and serve an amended Points of Claim to give effect to these reasons within 14 days.
Costs of the application to be costs in the cause.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1488 of 2005
| WILLIAMS CHARLES GAMA |
Applicant
And
| QANTAS AIRWAYS LTD |
Respondent
REASONS FOR JUDGMENT
The applicant was a long time employee of Qantas Airways. He joined the company in February 1984 as an aircraft engineer at Mascot. He left its employment on 25 October 2002. He was involved in a work accident in 1992 and further work related incidents in 1996, 1998 and 2000. He took time off work in relation to these incidents and claimed workers compensation. The applicant alleges that during his employment he was the victim of racial and disability discrimination. On 18 July 2003 Mr Gama completed a complaint form and forwarded it to the Human Rights and Equal Opportunity Commission (“HREOC”). He complained about two individuals at the Qantas Heaving Engineering Division in Mascot. On page 3 of the complaint form in response to the question “When did this happen?” the applicant has responded with the words “From 1998 to date and continuing.” Upon receipt of the complaint the matter was considered by a delegate of the president who wrote to Qantas on 26 September 2003 requesting a response. In paragraph 9 of that letter the delegate says:
“Under section 46PH(1)(b) of the HREOCA, I have discretion not to inquire into a complaint where more than 12 months has elapsed since the alleged act. In deciding whether or not to exercise this discretion I have regard to such matter as
· The length of the delay;
· The reasons for the delay;
· Whether the complainant had the assistance of lawyers;
· The prejudice to the respondent of proceeding;
· The prejudice to the complainant of not proceeding;
· Whether the complaint raises important issues of public interest;
· The merits of the complaint, and
· The impact o f the delay on the Commission’s ability to investigate the matter.
Mr Gama’s complaint was received by the Commission on 24 July 2004 and some of the alleged incidents of harassment and discrimination took place in 1998 and 1999, which is over 4 years before he lodged his complaint with this Commission. If you consider I should exercise my discretion under section 46PH(1)(b) of the HREOCA and discontinue my inquiry, please provide a detailed submission on why you consider this to be an appropriate matter for exercising my discretion not to inquire.”
The Commission wrote again to Qantas on 7 November 2003, 22 December 2003 and 13 February 2004 without receiving a response. On 16 March 2004 the delegate terminated the complaint and served a notice of termination together with a letter on Qantas and a longer letter to the applicant. It seems from these letters that the Tribunal had exercised its discretion to consider the complaints from 1998. In the second paragraph of the letter to Mr Gama under the heading “Summary of Complaint” the letter states:
“You advised that you only wished to complain about incidents that took place from 1998 onwards.”
The jurisdiction of the Federal Magistrates Court to hear and determine disputes under one of the Federal Anti-Discrimination Acts is found under s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (“the HREOCA”) and that section is relevantly in the following form:
HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION ACT 1986 - SECT 46PO
Application to court if complaint is terminated
(1) If:
(a) a complaint has been terminated by the President under section 46PEor46PH;and
(b) the President has given a notice to any person under subsection 46PH(2) in relation to the termination;any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Magistrates Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.
Note: Part IVA of the Federal Court of Australia Act 1976 allows representative proceedings to be commenced in the Federal Court in certain circumstances.
(2) The application must be made within 28 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows.
(3) The unlawful discrimination alleged in the application:
(a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or
(b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.On 28 March 2004 the applicant lodged an application in respect of the terminated complaint with the Federal Court. The matter was transferred to this court where the applicant filed points of claim on
4 August 2005. The interlocutory proceedings before me concern an application by the respondents to strike out of those points of claim two types of allegations. The first are allegations of matters pre-1998 and the second are allegations which it is said do not arise out of the same or substantially the same acts, omissions or practices that were the subject of the terminated complaint. Ms Eastman, who appears for the respondents, has provided the court with some helpful written submissions which include two schedules known as Table A and Table B. Table A concerns allegations relating to a period of employment pre-1998 and Table B contains details of those allegations which are said not to have been contained within the original HREOC complaint.
First issue: matters pre-dating 1998
Ms Eastman argues that the pre-1998 matters have not been the subject of a terminated complaint. She says that this is clear from the letters accompanying the notice of termination, the reasons for which are contained in the letter to Mr Gama that I have already referred to. That letter goes on, after referring to incidents taking place from 1998 onwards, to list certain particular allegations made by Mr Gama. Ms Eastman further submits that if I was not with her in her assertions that anything pre-1998 is not the subject matter of a terminated complaint then I should excise these matters from the proceedings because they occurred more than 6 years prior to the commencement of those proceedings and in regard to this case those matters are subject to s.14(1) of the Limitation Act 1969 (NSW) which applies by operation of s.79 of the Judiciary Act 1903 (Cth). It is accepted that there is no limitation period stated in either the HREOCA or the individual anti-discrimination acts although s.46PH(1)(b) of the HREOCA does bestow on the President a discretion to terminate a complaint that was lodged more than 12 months after the alleged unlawful discrimination has taken place. The relevant parts of s.14 of the Limitation Act (NSW) are set out below:
Section 14
(1) An action on any of the following causes of action is not maintainable if brought after the expiration of a limitation period of six ear running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims:
(a) a cause of action founded on contract (including quasi contract) not being a cause of action founded on a deed.
(b) a cause of action founded in tort, including a cause of action for damages for breach of statutory duty,
(c) a cause of action to enforce a recognizance,
(d) a cause of action to recover money recoverable by virtue of an enactment, other than a penalty or forfeiture or sum by way of penalty of forfeiture.
(2) This section does not apply to:
(a) a cause of action to which section 19 applies, or
(b) a cause of action for contribution to which section 26 applies.
(3) For the purposes of paragraph )d) of subsection (1), “enactment” includes not only an enactment of New South Wales but also an enactment of the Imperial Parliament, an enactment of another State of the Commonwealth, an enactment of the Commonwealth, an enactment of a Territory of the Commonwealth and an enactment of any other country.
There has been some debate whether proceedings of this nature are proceedings for a cause of action founded on tort, including a cause of action for damages for breach of statutory duty under s.14(1)(b) or a cause of action to recover money recoverable by virtue of an enactment under s.14(1)(d). This question was considered to some extent by French J in Shahbahram Ardeshirian v Robe Rive Iron Associates (1993) 116 ALR 173. At [10] in reference to a judgment of the High Court his Honour said:
“The judgments of Menzies and Mason JJ in John Robertson and Co. Ltd (In Liq) v. Ferguson Transformers Pty Ltd (1973) 129 CLR 65 are invoked to support the proposition that s.79 would pick up a State Limitation Act and apply it to an action brought under the statute law of the Commonwealth. That case concerned s.37 of the Limitation of Actions Act 1936 (SA) which refers to “actions for penalties, damages or sums of money given to any party by any statute in force at or after the commencement of this Act".
…
The classification "actions for penalties, damages or sums given by any enactment" applies, it was said, to recovery under s.25ZA of the Racial Discrimination Act 1975. For although compensatory, the compensation is in the nature of a penalty. The statutory ancestors of s.38 are referred to, especially s.3 of the Civil Procedure Act 1833 and the Common Informers Act 1588 (31 Eliz C.5). In John Robertson (supra) there was, it is said, support for the proposition that statutory damages could be caught by the section. A person bringing action for such damages is a "party grieved" for the purposes of the section.”
It is my view that these proceedings are proceedings that would fall within the confines of s.14(1)(b). To my mind “money recoverable by virtue of an enactment” covers such things as fees or charges imposed by an enactment. The words tend to indicate that the section is referring to monies either already paid out which are due to be returned or sums certain which were due to be paid but were not paid. The nature of the rights and duties contained in the Commonwealth Anti-Discrimination Acts and the form of relief which may be granted under s.46PO(4) HREOCA are to my mind easily included within the definition of an action for damages for breach of statutory duty.
The applicant through his Counsel has also provided me with written submissions. With respect to Ms Gormly I do not believe that her arguments are responsive either to the “complaint” submission or to the “limitation period” submission. A complaint is seldom prepared by a legal practitioner and in this case was not. It was prepared by Mr Gama. It includes letters from him to the CEO of Qantas and a statement used for certain proceedings before the AIRC. Reference is made to matters prior to 1998. Ms Gormly suggests that “to look at the complaints which occurred in the last few years of his employment in isolation from events which occurred throughout his employment would mislead the court into thinking Mr Gama did not suffer from discrimination before 1998 when it in fact occurred early in his employment.” What Ms Eastman is asking is that her clients not be put to respond to the allegations as complaints which might sound in damages. She concedes that the history of Mr Gama’s employment with Qantas may have some historical relevance. I agree that events that might have occurred pre-1998 could put the post-1998 events into context. But it does not make the pre-1998 matters capable of forming complaints in their own right. I accept that the pre-1998 incidents did not form part of the applicant’s original complaint and that they were not considered by HREOC. For that reason they cannot constitute “terminated complaints”. I would also find that if I was in error in the above that the pre-19998 matters were statute barred and if the Limitation Act (NSW) had been pleaded in the points of defence I could have summarily dismissed them.
It follows from what I have said that orders must be made in relation to the allegations contained in the points of claim relating to the period of employment pre-1998. There is annexed to this judgment Table A of Ms Eastman’s submissions. The third column provides details of the dates upon which the allegations made in the second column took place. It is probably best that I deal with each in turn.
Paragraph 7(i)
Unless the applicant asserts that the writing of the words “Black Willie” on the walls in the bathroom took place after 1998 this allegation should be deleted.
Paragraph 7(ii)
Although the particulars of claims state that the activity of holding up a black piece of paper and saying “Willie here is your photograph…what a strong resemblance” occurred throughout the period of employment, the particulars limit that to between 1997 and 2000. The points of claim should be amended so as to read “On a regular basis, almost every day commencing in 1997 but relevantly for this claim from 1998 to 2000”.
Paragraph 10(i)
The particulars indicate that this allegation relates to events no later than 1992 and should therefore be deleted.
Paragraph 11
The particulars indicate that this allegation relates to events in 1985 and 1986 and should be deleted.
Paragraph 12
The allegation is clearly one relating to 1997 and should be deleted
Paragraph 13
The particulars indicate that this allegation relates to an incident in December 1997 and should be deleted.
Paragraph 15
The particulars indicate that this allegation relations to an incident in 1996 and should be deleted.
Allegations not contained within original HREOC complaint
The Federal Court and the Federal Magistrates Court have considered in the past what constitutes an allegation that is the same (or the same in substance) as the unlawful discrimination that was the subject of the terminated complaint or what unlawful discrimination arises out of the same or substantial the same acts, omissions or practices that were the subject of a terminated compliant in Charles v Fuji Xerox Australia Pty Ltd [2000] 105 FCR 573; Travers by her next friend, Travers v New South Wales [2000] FCA 1565; Bender v Bovis Lend Lease Pty Ltd [2003] 175 FLR 446. In Charles and Bender reference was made to the Senate Explanatory Memorandum for the bill. What one can extract from these decisions is that a party can make an allegation that a particular act referred to in the complaint constitutes a different breach of an Anti-Discrimination Act than that originally alleged or possibly even considered by HREOC. It is also clear that what constitutes the “complaint” is not just the written document but all those facts and matters which are before the Commission prior to the determination. But the allegations made in proceedings cannot be substantially wider or begin substantially earlier than those initially complained of. The purpose of the preliminary consideration of a complaint by HREOC is to try and resolve issues without the necessity for court intervention. The process adopted by the Commission is to obtain all necessary details of the allegations from a complainant and then put them to the respondents. This gives the respondent an opportunity to reply and the Commission an opportunity to move towards a conciliation of the issues. If the Commission succeeds in its task it will have provided the parties with a number of benefits including ones which are both emotional and financial. By preventing parties from raising new issues in any court proceedings following a terminated complaint the legislation attempts to ensure that all issues are raised at the early stage. For something to arise out of the same facts or circumstances it is not enough that it arises out of the same general allegation. There must be a close connection between what was told to the Commission and what is alleged in the court proceedings. A new incident, even if it is an incident of the same type as advised to the Commission, would be unlikely to pass this test because, if unknown at the time of the attempted conciliation, it could not have been part of it. Difficulties will arise where a complaint to the Commission lacks details or is expressed in general forms, e.g. by saying words to the effect “frequently during a particular period I was subjected to verbal abuse about my sex/disability/race/age”. What if the applicant identifies four such incidents before the Commission but then recalls another before the court? I think it would be for the court to decide whether the evidence given arises out of the same practice that was the subject of the terminated complaint.
Looking at the items in Table B, those referred to in paragraph 7(i) and 7(ii) are identical to those contained in Table A. I would not permit any allegation of this sort in respect to a period prior to 1998. The applicant says that these matters are examples of him being subject to general harassment from colleagues and management and therefore had a sufficient nexus to the complaint not to require it to be struck out. Whilst I agree that the applicant complained that his employer through its staff discriminated against him on the grounds of his colour the matters referred to in paragraph 7(i) and 7(ii) are very specific allegations which should have been the subject matter of the complaint if it was to be thoroughly conciliated. I do not consider that those allegations constitute allegations arising out of the same or substantially the same acts, omissions or practices that were the subject of the terminated complaint. Paragraph 7(iii) refers to the possibility of promotion. The summary of complaint refers to lack of opportunity to act or stand in permanent positions when other Anglo/white Australians were given opportunities. There are other references to the promotion issue. I do not think that the applicant should be prevented from pleading this lack of promotion. The difficulty is that the particulars of the allegation made in Paragraph 7(iii) appear to refer to one particular conversation at one particular time. If the applicant re-pleaded the matter to allege the unanswered applications have inferentially been a breach of the ADA after 1998 and particularising the applications made I think this would be in order. In the meantime I must strike out the current pleading in 7(iii).
The incident referred to in Paragraph 7(v) does seem to me to have been included in paragraph 32 of the statement to the IRC. This should not be struck out. The matters referred to in paragraph 8(vi) would also appear to have been dealt with by the Commission. I am satisfied that the matters referred to in paragraph 10(iii) relating to promotion were also matters that were either directly before the Commission or arose out of the same or substantially the same acts, omissions or practices.
I believe that the particulars provided in paragraph 10(iv) are particulars of the promotion issue which was before the Commission and should not be deleted. Paragraph 11 is similarly evidence of the promotion issue and has a sufficient nexus. I believe it should not be deleted. Paragraph 12 refers to something which occurred in 1997 and is therefore not available to be included within the complaint. Paragraph 15 in so far as it relates to matters after 1998, does seem to me to have been part of the original complaint when the applicant says he was never offered a course after 1988 and should remain in, limited to the period between 1998 and 2002.
The complaint made in paragraph 17(iv), that a workers compensation claim was fraudulent, seems to me to be consistent with the complaints that the applicant was called a “compo cheat” and particularises those allegations. The conversation referred to in paragraph 17(x) seems to me to be referrable to the matters before the Commission which notes in its decision that two of the three person referred to were alleged to be involved in the pressure at work upon the applicant. Paragraph 19 of the AIRC statement appears to be evidence of the way in which the applicant was being pressured to leave the organisation, a matter which he did complaint about and I would not be prepared to strike this allegation out.
As frequently happens in matters of this nature, I have found in favour of the respondent on some matters and in favour of the application on others. I am of the view that the proper orders for costs in relation to this interlocutory proceeding is that they should follow the event.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 16 January 2006
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