Speirs v Darling Range Brewing Co Pty Ltd - [2002] FMCA 126

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SPEIRS v DARLING RANGE BREWING CO PTY LTD & ORS

[2002] FMCA 126

HUMAN RIGHTS – Whether Human Rights and Equal Opportunity Commission has power to issue second termination notice naming different respondents – duty to permit respondents to participate in conciliation process – whether HREOC has power to amend termination notice – power of HREOC to revoke termination notice- whether termination notice valid and/or a nullity – whether appropriate to summarily dismiss application where notice of termination invalid.

Charles v Fuji Xerox Australia Pty Ltd (2000) FCA 1531 (30 October 2000)

Sex Discrimination Act 1984
Human Rights and Equal Opportunity Commission Act 1986 s.46P, 46PA, 46PD, 46PE, 46PF, 46PH, 46PO

Applicant:

CHERYL SPEIRS

Respondents:

WALTER LENZ (DISCONTINUED), DARLING RANGE BREWING CO PTY LTD, ANTONIO PISCICELLI (DISCONTINUED), NEVILLE HENDERSON, KIRRIE MARIE HALL AND TONY KITTLE

File No:

WZ113 of 2001

Delivered on:

26 June 2002

Delivered at:

Melbourne (by videolink to Perth)

Hearing Date:

31 May 2002

Judgment of:

McInnis FM

REPRESENTATION

Solicitor for the Applicant:

Mrs J Stevens

Solicitors for the Applicant:

Marks & Sands

Solicitor for the Second Respondent:

Mr N Billington

Solicitors for the Second Respondent:

Cahill Billington

Solicitor for the Fourth Respondent:

Mr J Bochat

Solicitors for the Fourth Respondent:

Rattigan Kearney & Bochat

Solicitor for the Fifth and Sixth Respondents:

Mr S Kemp

ORDERS

The Application against the Fifth and Sixth Respondents is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

WZ113 of 2001

CHERYL ANNE SPEIRS

Applicant

And

WALTER LENZ (DISCONTINUED), DARLING RANGE BREWING CO PTY LTD, ANTONIO PISCICELLI (DISCONTINUED), NEVILLE HENDERSON, KIRRIE MARIE HALL AND TONY KITTLE

Respondents

REASONS FOR JUDGMENT

The Fifth and Sixth Respondents seek an order that the Application against them should be summarily dismissed on the ground that a termination notice issued by the Human Rights and Equal Opportunity Commission is invalid and/or is a nullity. In considering the application for summary dismissal of the claim by the Applicant against the Fifth and Sixth Respondents it is appropriate to set out the background to the application together with an analysis of the submissions in the context of the relevant legislative framework.
The Applicant in this matter has made application to the Court alleging unlawful discrimination which it is claimed arises from a breach of certain provisions of the Sex Discrimination Act 1984 (the SDA).
The Applicant had initially filed an Application in the Federal Court of Australia on 6 September 2001. A schedule to that application referred to the Respondents as being “Walter Lenz, Darling Range Brewing Co Pty Ltd, Antonio Piscicelli and Neville Henderson”.
In her Affidavit in support filed 6 September 2001 the Applicant referred to an annexure marked “C” being a copy of a statement made to the Human Rights and Equal Opportunity Commission (HREOC). That statement is undated but it appears to be common ground that it effectively formed the basis of the complaint to HREOC pursuant to

s 46 P of the Human Rights and Equal Opportunity Commission Act 1986 (the HREOC Act).
A notice of termination was issued by HREOC pursuant to s 46PH(2) of the HREOC Act on 14 August 2001 (the first notice). In the first notice HREOC stated the following:
“This complaint of sex discrimination and sexual harassment against both respondents under the Sex Discrimination Act 1984 has been terminated pursuant to s 46PH(1)(i) of the HREOCA as I am satisfied that there is no reasonable prospect of the matter being settled by conciliation.”
Full reasons for the decision of HREOC were outlined in what is described as “Attachment A” to the first notice. Attachment A is a letter to the solicitor for the Applicant dated 14 August 2001 which states in part the following:
“I refer to the complaint by Ms Cheryl Speirs against Darling Range Brewing Co Pty Ltd trading as Last Drop Warnbro (the tavern) and Mr Neville Henderson lodged under the Human Rights and Equal Opportunity Commission Act 1986 (the HREOCA) alleging sex discrimination and sexual harassment under the terms of the Sex Discrimination Act 1984 (the SDA).
It is clear therefore from Attachment A to the first notice and indeed the first notice itself that HREOC has identified two respondents namely “Darling Range Brewing Co Pty Ltd trading as the Last Drop Warnbro” and “Mr Neville Henderson”.
HREOC in Attachment A to the first notice under the heading “Summary of Complaint” states the following:
“In a letter of complaint received by the Commission on 29 June 2000 Ms Speirs claims she was discriminated against on the basis of her sex and sexually harassed by Mr John Henderson during the course of her employment with the tavern …”
HREOC then proceeds to refer to the specific complaint made in relation to Mr Henderson and then further states that there are other complaints alleged against “Ms Kirri Hall” and “Mr Troy Kittle”. Those parties were added as fifth and sixth respondents to the present application by leave granted by the Court on 31 January 2002.
Although Ms Hall and Mr Kittle were referred to as being the subject of allegations by the complainant it is clear that the first notice does not refer to either party as being respondents and indeed whilst noting a reference to those parties under the heading “Summary of Complaint” in the letter which I refer to as Attachment A dated 14 August 2001 the Commission in the same letter simply names the company and Mr Henderson as the respondents.
It should further be noted that an Affidavit of the Applicant was filed in the Federal Court of Australia on 6 September 2001 although that document incorrectly at that time refers to the “Federal Magistrates Court”. In any event that Affidavit in the heading refers to the Respondents as being “Last Drop Tavern – Warnbro”, ‘Walter Lenz, Faye Leonie Lenz, Antonio Piscicelli and Neville Henderson’. A Notice of Appearance from Mr Henderson was filed in the Federal Court on 24 September 2001 with Mr Henderson then being self-represented. A further Notice of Appearance by Mr Henderson was filed on 4 October 2001 indicating that he then appeared by his solicitors. On 3 October 2001 a Notice of Appearance was conditionally filed by Mr Piscicelli. Darling Range Brewing Co Pty Ltd filed its Notice of Appearance on 5 October 2001 and at the same time a Notice of Conditional Appearance was filed by Mr Walter Lenz.
The application was the subject of a directions hearing before French J in the Federal Court on 5 October 2001. Orders were made on that day requiring any motion to strike out or objection to jurisdiction of the Court as against any Respondent to be filed and served by 15 October returnable on 5 November at 2.30 p.m. Other directions were made in relation to Affidavit material and mediation.
A Notice of Motion was filed by Walter Lenz on 16 October 2001 seeking to have the claim against him dismissed. On 30 November 2001 the Applicant filed a Notice of Discontinuance against Walter Lenz and Antonio Piscicelli pursuant to leave granted by the Court on 3 December 2001. On the same date the Federal Court ordered that the Application be transferred to the Federal Magistrates Court. On

31 January 2002 I made orders as indicated granting the Applicant leave to join Kirri Marie Hall and Tony Kittle as Respondents. Both parties filed a Notice of Appearance with the Court on 14 March 2002.
The basis upon which the fifth and sixth Respondents were joined to the current application appears to be a Notice of Termination dated

28 November 2001 issued by HREOC pursuant to s 46PH(2) of the HREOC Act (the second notice). The second notice referred to the Applicant as Complainant and Kirri Hall and Troy Kittle as Respondents. That Notice of Termination followed an exchange of correspondence between the Applicant’s solicitors and HREOC.
By letter dated 28 November 2001 HREOC explained why it had decided to issue a further Notice of Termination concerning the Applicant’s complaint. In its letter HREOC states:
“Through your office, Ms Speirs lodged a complaint with the West Australian Equal Opportunity Commission (WAEOC) by letter dated 16 June 2000. Attached to your letter was a WAEOC Complaint Form, Statement of Complaint and statements in support. By letter dated 21 July 2000 you provided WAEOC with an amended Statement of Complaint.”
The HREOC letter dated 28 November 2001 refers to a letter dated

16 June 2000 together with an attached complaint form, statement of complaint and statements in support and further refers to another letter dated 21 July 2000 where the Western Australian Equal Opportunity Commission was provided with an Amended Statement of Complaint. However it appears that the Amended Statement of Complaint together with the complaint form were not attached to the Application in the Federal Court as required and indeed have not been produced to this Court by the Applicant.
Instead there has been an Amended Application filed pursuant to an Order of the Court made on 31 January 2002. That Amended Application which was filed on 16 April 2002 had attached to it the first notice and the second notice together with accompanying correspondence from HREOC and the document which I have taken to be the complaint in the form of a statement of the Applicant which is undated.
The Fifth and Sixth Respondents have submitted that the second notice was a nullity and that accordingly this Court does not have jurisdiction to hear and determine the claim made against those Respondents by the Applicant.

Legislative framework

Before considering the submissions in detail it is appropriate to consider the relevant provisions of the HREOC Act.
Section 46P of the HREOC Act makes provision for the lodging of a complaint. The section provides that a written complaint may be lodged with the Commission alleging unlawful discrimination. Section 46PA provides for amendment of the complaint at any time with the leave of the President.
There does not seem to be any provision which specifies that the Complainant must name each and every Respondent who may be the subject of a complaint. Nor does there appear to be any specific power vested in HREOC to identify and name the Respondents. Once a complaint is referred to the President of HREOC pursuant to s 46PD of the HREOC Act then an inquiry by the President is undertaken and an attempt must be made to conciliate the complaint. This requirement is set out in s 46PF which provides:
“(1)If a complaint is referred to the President under s 46PD, the President must inquire into the complaint and attempt to conciliate the complaint.
(2)If the President thinks that 2 or more complaints arise out of the same or substantially the same circumstances or subject, the President may hold a single inquiry, or conduct a single conciliation, in relation to those complaints.
(3)With the leave of the President, any complainant or respondent may amend the complaint to add, as a respondent, a person who is alleged to have done the alleged unlawful discrimination.
(4)A complaint cannot be amended after it is terminated by the President under section 46PH.”
It will be noted from an analysis of s 46PF that whilst reference is made to the addition of Respondents there is no specific provision which requires the Complainant to identify the Respondent or indeed which requires the President to then identify the Respondent. There is of course provision for leave to be given to the Respondent to amend the complaint to add other Respondents. This is a logical extension of power having regard to the provisions of the anti discrimination legislation. For example it is noted that s 105, 106 and 107 of the SDA provides for extended liability to other respondents who have may have been involved in the unlawful acts of discrimination or indeed respondents who may be vicariously liable and/or those who are liable for acts committed on behalf of certain bodies.
There does not appear, however, to be any specific power on the part of the President or HREOC to substitute respondents and/or amend the complaint other than by leave granted to a complainant or respondent.
Section 46PH provides in relation to termination of complaint that the President may terminate a complaint on a number of grounds. In the present case the ground relied upon is that provided by s 46PH(1)(i) that the President was satisfied there was no reasonable prospect of the matter being settled by conciliation.
The structure therefore of the legislation provides for an inquiry by the President who must attempt to conciliate the complaint but then relevantly for the present purposes if the President is satisfied that there is no reasonable prospect of the matter being settled by conciliation a termination notice is issued pursuant to s 46PH(2) of the HREOC Act. It is significant to note however that pursuant to s 46PH(4) of the HREOC Act the President may revoke the termination of a complaint but not after an application is made to the Federal Court or the Federal Magistrates Court under s 46PO in relation to the complaint. Hence in the present case after the first notice was issued on 14 August 2001 it is clear that upon the application being filed by the Applicant to the Federal Court on 6 September 2001 that the President did not have power to revoke the termination of the complaint.
It is not clear from the legislation that the President has power to issue more than one notice of termination and/or whether the President has power to effectively amend a termination. There is a power to revoke the termination but not after an application has been made to either the Federal Court or the Federal Magistrates Court in relation to the complaint pursuant to s 46PO of the HREOC Act.
Apart from the application of s 46PF(3) of the HREOC Act there does not appear to be any power to add respondents and in particular it should be noted that in any event applying s 46PF(4) it is clear that the complaint cannot be amended after it has been terminated by the President under s 46PH.
In the legislation there does not appear to be provision of two notices of termination or amendment of a complaint after termination.
It was submitted on behalf of the fifth and sixth Respondents that a proper analysis of the legislative provisions to which I have referred would lead to the conclusion that the second notice is a nullity and/or invalid. Accordingly in the absence of a valid termination notice the Court does not have jurisdiction to hear and determine an appeal from HREOC.
It is clear that the power of the Court to hear and determine applications from HREOC arise from s 46PO of the HREOC Act. The proceedings in the Federal Magistrates Court can only be commenced if a complaint has been terminated by the President of HREOC under

s 46PE or 46PH and that a notice has been given in relation to that termination under s 46PH(2) of the HREOC Act. It is significant to note that pursuant to s 46PO(3) the unlawful discrimination alleged in the application must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint or must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.
It is also noteworthy that “Respondent” is defined in s 3 of the HREOC Act as follows:
“Respondent, in relation to a complaint, means the person or persons against whom the complaint is made.”
In the present case it is clear to me that the fifth and sixth Respondents were certainly parties against whom a complaint is made and had been referred to in the letter which accompanied the first notice. However, it is equally clear that the first notice did not refer to the fifth and sixth Respondents as being Respondents at that stage.
Counsel for the Applicant has submitted that as there is no provision which requires either the Applicant as Complainant to nominate the Respondents in any Court heading or other document and as there is no specific power given to the President of the Commission to likewise nominate the persons who are the subject of the complaint in a Court heading or like document that the lack of reference to the fifth and sixth Respondents in the first notice would be of no consequence and would not prevent this Court from hearing and determining an application to the Court based upon the first notice of termination. Further, it is submitted that in the absence of any specific prohibition preventing the President of HREOC from issuing a second termination notice arising out of the same complaint though nominating different Respondents that the Court should regard the second notice as a valid notice which in the alternative would provide the Applicant with an opportunity to seek to exercise her rights pursuant to s 46PO of the HREOC Act.
Counsel for the fifth and sixth Respondents referred the Court to the decision of Katz J in the unreported decision of Charles v Fuji Xerox Australia Pty Ltd (2000) FCA 1531 (30 October 2000) and in particular paragraph 42 where His Honour states:
“I add that a construction of subs 46PO(3) of the HREOCA which does not permit Mr Charles to allege in the present proceeding the doing by Fuji Xerox after 3 April 1999 of any act constituting unlawful disability discrimination in employment appears to be to be consistent with the policy of the HREOCA of ensuring that there exists an opportunity for the attempted conciliation of complaints before they are litigated: compare subss 46PF(1) and (4) of the HREOCA. (A similar policy of ensuring an opportunity for attempted conciliation in the first instance was also apparent in the DDA before its amendment by the amending Act.) I note in that connection the following exchange when the Opposition sought to amend in the House of Representatives, after its second reading, the Bill which became the amending Act. The Opposition spokesman moved (see HR Hansard, 11 March 1999, p 3754) an amendment whose effect he described as being ‘to enable complainants to amend a complaint before the Federal Court proceeding, even though that particular issue may not have been dealt with in the commission’. The justification which he offered for the proposed amendment was as follows:
‘These matters of discrimination can be flexible in the sense that events can occur which are part of an ongoing process of discrimination but may not themselves have been pleaded or raised in the conciliation proceedings. So we say it is appropriate for a complainant to be able to amend the complaint after conciliation and before commencement in the Federal Court.
The Government rejected that proposed amendment, the Attorney General saying (see HR Hansard, 11 March 1999, p 3755),
“The government disagrees that there should be a power to add further allegations of discrimination after a matter has been determined in the commission and prior to applying to the Federal Court. This is consistent with the policy of requiring discrimination complaints to go through the HREOC conciliation process.”
It was submitted on behalf of the Fifth and Sixth Respondents that by not being named as Respondents in the first notice and thereby not being invited to make any submissions at all and/or participate in the process that each of the Respondents were denied an opportunity of participating in the investigation by the President of the commission and/or availing themselves of an opportunity to conciliate the complaints. Conciliation, it was submitted, is consistent with the policy of the legislature and to deny potential respondents the opportunity of participating in that process would be to undermine the object and purpose of that part of the legislation. It was submitted that by issuing a second notice without again providing an opportunity for the respondents to be named also failed to provide the opportunity to participate in the attempted conciliation of the complaint before litigation.

In my view there does not appear to be any power given to HREOC in the legislation to issue a further termination notice arising out of the same complaint. Once issued and respondents named then those respondents so named who were given an opportunity to participate in the procedure and the opportunity to at least conciliate the complaint before litigation means that in the circumstance of the present case the denial to the respondents of that opportunity itself would demonstrate a flaw in the process followed by HREOC in this instance. It is not possible in my view for HREOC to simply retrospectively issue a further notice in circumstances where the purported respondents to that notice have not in truth and in fact been able to participate in the conciliation process which the President is bound to follow in accordance with the provisions of the HREOC Act to which I have referred.
There is also no provision in my view for HREOC to issue an amended notice of termination and this is particularly so after the time has elapsed for the first notice to be revoked pursuant to s 46PH(4) of the HREOC Act. It would be unusual if a further notice could be issued after proceedings had been commenced in the Federal Court arising out of the same complaint and in circumstances where in s 46PF(4) the legislature provides that a complaint cannot be amended after it has been terminated by the President under s 46PH. Therefore to issue a second notice simply at the request of solicitors for the complainant in circumstances where all that has been requested is the naming of further respondents who had not been given an opportunity to participate in the inquiry effectively amounts to an amendment of the termination notice to include other parties. If the termination notice itself cannot be revoked then it is difficult to see how either an amendment can occur or a further notice issued once Court proceedings have been commenced in relation to the complaint.
Whilst one has some sympathy for the Applicant in the endeavour to bring before the Court all relevant parties to the complaint who were clearly identified as being persons against whom allegations were made, it is not in my view appropriate as a matter of law to effectively permit a new power for the President of HREOC to issue another termination notice arising out of the same complaint where the legislature does not provide such power. Likewise even if I were to consider the second notice as an amendment it would seem to me that in the circumstances to allow the second notice to be the basis upon which an application proceeds in the Court would be to undermine the fundamental objectives of the HREOC Act and in particular undermine the duty of the inquiry by the President pursuant to s 46PF of the HREOC Act to ensure that where a complaint is referred to the President that an inquiry occurs into the complaint with an attempt to conciliate the complaint.
It is artificial and contrary to the spirit and intent of the legislation, in particular s 46PH(1)(i), to permit a second notice of termination to stand as the basis upon which litigation can commence in this Court where there has been no opportunity for conciliation which then in turn could not possibly lead to a conclusion that there is no reasonable prospect of the matter being settled by conciliation. If the newly named respondents in the second notice were not given the opportunity to participate in conciliation it is difficult to see how any President could then be satisfied that there is no reasonable prospect of the matter being settled by conciliation without involving the relevant parties in that process. In my view that is clearly contrary to the spirit and intent of the legislative provisions to which I have referred.
Accordingly it is appropriate in my view that the submission made for and on behalf of the Fifth and Sixth Respondents that the second notice was nullity should be upheld. Accordingly the Court does not in my view have jurisdiction to hear and determine the claim made against he Fifth and Sixth Respondents by the Applicant. I therefore make an order that the application against the Fifth and Sixth Respondents be dismissed.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 26 June 2002