Jones v Scully

Case [2001] FCA 879

FEDERAL COURT OF AUSTRALIA

Jones v Scully [2001] FCA 879

RACIAL DISCRIMINATION – application to enforce declaration of Human Rights and Equal Opportunity Commission – where only one of the original complainants seeks an order to enforce – nature of de novo hearing

PRACTICE AND PROCEDURE  - summary dismissal

WORDS AND PHRASES – “complainant”

Racial Discrimination Act 1975 (Cth) s 25ZC
Human Rights Legislation Amendment Act (No 1) 1999
Interpretation Act 1889 (UK) s 23(b)

Executive Council of Australian Jewry v Scully (1998) 79 FCR 537 referred to
Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 referred to
No 20 Cannon St v Singer & Friedlander Ltd [1974] 1 Ch 229 referred to
Harris v Caladine (1991) 172 CLR 84 referred to

JEREMY JONES FOR HIMSELF AND FOR THE MEMBERS FOR THE TIME BEING OF THE COMMITTEE OF MANAGEMENT OF THE EXECUTIVE COUNCIL OF AUSTRALIAN JEWRY v OLGA SCULLY

N 154 OF 2001

HELY J
13 JULY 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 154 OF 2001

BETWEEN:

JEREMY JONES FOR HIMSELF AND FOR THE MEMBERS FOR THE TIME BEING OF THE COMMITTEE OF MANAGEMENT OF THE EXECUTIVE COUNCIL OF AUSTRALIAN JEWRY
APPLICANT

AND:

OLGA SCULLY
RESPONDENT

JUDGE:

HELY J

DATE OF ORDER:

13 JULY 2001

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The Notice of Motion filed on 25 May 2001 be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 154 OF 2001

BETWEEN:

JEREMY JONES FOR HIMSELF AND FOR THE MEMBERS FOR THE TIME BEING OF THE COMMITTEE OF MANAGEMENT OF THE EXECUTIVE COUNCIL OF AUSTRALIAN JEWRY
APPLICANT

AND:

OLGA SCULLY
RESPONDENT

JUDGE:

HELY J

DATE:

13 JULY 2001

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. On 21 September 2000 the Human Rights and Equal Opportunity Commission (“HREOC”) determined that Mrs Olga Scully engaged in conduct rendered unlawful by Part IIA of the Racial Discrimination Act 1975 (“RDA”) by “distributing anti-Semitic literature in letterboxes in Launceston, Tasmania, and by selling or offering to sell such literature at a public market in Launceston”. HREOC made declarations that Mrs Scully should not repeat or continue the unlawful conduct and that she should apologise for her unlawful conduct by writing a letter of apology to the complainants in the terms specified in the decision.

  2. That determination was made in proceedings in which the identity of the complainants was a matter of some controversy: see Executive Council of Australian Jewry v Scully (1998) 79 FCR 537, per Wilcox J. Ultimately HREOC concluded that the complainants should be identified as the Hobart Hebrew Congregation and Mr Jeremy Jones (in his capacity as Executive Vice-President of the Executive Council of Australian Jewry). HREOC’s reasons, and the accompanying determination, were headed accordingly.

  3. In the proceedings before Wilcox J, to which I earlier referred, his Honour did not find…

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AGLC
Jones v Scully [2001] FCA 879
Case
[2001] FCA 879
Decision Date

CaseChat Overview and Summary

The case of Jones v Scully involves a dispute under the Racial Discrimination Act 1975 (Cth), where the plaintiff, Jones, seeks to hold the defendant, Scully, accountable for alleged discriminatory conduct. The matter was heard in the Federal Court of Australia. The plaintiff contends that the defendant's actions constituted unlawful racial discrimination, necessitating a determination by the Human Rights and Equal Opportunity Commission (HREOC) prior to the court's jurisdiction being invoked.

The central legal issue before the court was whether the HREOC determination was a necessary and binding prerequisite for the Federal Court to find that the respondent had engaged in unlawful conduct under the Racial Discrimination Act. This issue arose from the legislative changes implemented in the light of the Brandy decision, which clarified the role of HREOC determinations. The court was required to interpret the statutory framework and determine the extent to which HREOC determinations influence the court's jurisdiction.

The court held that while a determination by HREOC is a statutory precondition to the Federal Court's jurisdiction, it is not binding or enforceable in itself. The decision in Brandy established that the HREOC determination informs but does not determine the court's jurisdiction. The court concluded that the statutory requirement was procedural and did not bind the court to the findings of HREOC. Consequently, the application for summary judgment was dismissed with costs. The court's reasoning underscores the procedural nature of the HREOC determination in relation to the Federal Court's jurisdiction, affirming that the HREOC determination does not possess binding authority over the court's final decision.

Orders

Orders of the court

1. The Notice of Motion filed on 25 May 2001 be dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

HELY J
The HREOC determination is a statutory precondition to the jurisdiction of this Court to find that the respondent has engaged in conduct or committed an act which is unlawful under RDA. The changes made to RDA in the light of the decision in Brandy make it clear that the HREOC determination is not binding or enforceable per se.Conclusion The application for summary judgment is dismissed with costs.

Ratio Decidendi

Legal Principle Established

Established by: HELY J

Full text does not contain this section.