Stokes v Royal Flying Doctor Service (No 2) - [2003] FMCA 177

FEDERAL MAGISTRATES COURT OF AUSTRALIA

STOKES & ORS v ROYAL FLYING DOCTOR SERVICE & ANOR (No 2)

[2003] FMCA 177

PRACTICE AND PROCEDURE – HUMAN RIGHTS – Summary dismissal – application refused.

Federal Magistrates Court Rules 2001 Rule 13
Racial Discrimination Act 1992 ss.17, 18, 18A

Bennett v Millliner [1959] 1 FLR 312
Shaikh v Campbell & Navona Pty Ltd [1998] HREOCA 13 (24 April 1998)
General Steel industries Inc v Commissioner for Railways (NSW) [1964] 112 CLR 125
Dey v Victorian Railways Commissioners [1949] 78 CLR 62

Applicants:

GEOFFREY STOKES & ORS

First Respondent:

ROYAL FLYING DOCTOR SERVICE EASTERN GOLDFIELDS WA SECTION INC

Second Respondent:

CITY OF KALGOORLIE-BOULDER

File No:

WZ 267 of 2002

Delivered on:

2 May 2003

Delivered at:

Perth

Hearing Date:

1 May 2003

Judgment of:

McInnis FM

REPRESENTATION

Counsel for the Applicants:

Ms H Ketley

Solicitors for the Applicants:

Dwyer Durack

Counsel for the First Respondent:

Ms C McKenzie

Solicitors for the First Respondent:

McKenzie Lalor

Counsel for the Second Respondent:

Mr S Harben

Solicitors for the Second Respondent:

Freehills

ORDERS

The application filed by the Second Respondent on 14 February 2003 be dismissed
The Second Respondent shall pay the Applicants’ costs of and incidental to the application for summary dismissal fixed at $1,700.
Order 3 of the orders made by the Court on 5 February 2003 be varied by deleting “7 April 2003” and inserting “by 10am on 7 May 2003”.
Liberty to apply is granted to the parties in relation to any matters arising out of these orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

WZ 267 of 2002

GEOFFREY STOKES AND ORS

Applicants

And

ROYAL FLYING DOCTOR SERVICE EASTERN GOLDFIELDS WA SECTION INC

First Respondent

And

CITY OF KALGOORLIE-BOULDER

Second Respondent

REASONS FOR JUDGMENT

In this matter the Second Respondent by an application filed

14 February 2003 seeks an order that the proceedings against it be dismissed. The application is made for summary dismissal pursuant to Rule 13 of the Federal Magistrates Court Rules 2001.
The Applicants claim in brief terns alleges unlawful discrimination contrary to the provisions of the Racial Discrimination Act 1975 (the RDA) said to have arisen from events which were claimed to have occurred on 13 April 2002 in Kalgoorlie during the course of what is described as the Rhythms of the Outback Festival (the festival) held by the Royal Flying Doctor Service Eastern Goldfields WA Section Inc (the First Respondent). The claim currently before the Court was the subject of an earlier order made on 1 May 2003 permitting the Applicants to rely upon an Amended Application filed 18 March 2003. In that application the name of the Applicants had been altered to delete “the Ninga Mia Christian Fellowship and the Wongutha Birni Aboriginal Corporation” and insert the names of a number of individuals as Applicants in addition to the original Applicant namely Mr Geoffrey Stokes.
The Amended Application includes reliance upon sections 18 and 18A of the RDA. Essentially the complaint against the Second Respondent is based upon vicarious liability said to have arisen in circumstances where it is alleged that employees of the Second Respondent had breached the RDA and in particular reliance is placed on section 17 which provides that it is unlawful for a person to incite the doing of an act that is unlawful by reason of a provision of that part of the Act or to assist or promote, whether by financial assistance or otherwise, the doing of such an act. As indicated reliance is placed upon section 18A of the RDA which relates to vicarious liability.
In support of the application to summarily dismiss the claim against the Second Respondent, it was submitted that there is simply no evidence to suggest that the Second Respondent would be liable for the acts of its employees or agents in the context of the present case. Reliance was placed upon affidavits sworn by two employees of the Second Respondent. It is not necessary to recite the details of those affidavits save to say that each deponent participated in the festival as an unpaid volunteer and on a personal basis. Ms Jeannette Beckett, the Cultural Development Officer deposes that she had no involvement in the establishment of the committee responsible for organising the festival and otherwise participated in a voluntary capacity. She was the personal assistant to Mr Malcolm John Osborne who is the Director Community and Development Services of the Second Respondent. In his affidavit Mr Osborne refers to an “informal” organising committee for the festival that was established and that he was Chairman of that committee. He states in his affidavit:
“I was not acting as a representative of the City of Kalgoorlie-Boulder in accepting the position of Chairman of the organising committee. I was participating in my personal capacity as an unpaid volunteer”.
Further affidavit material relied upon by the Second Respondent was provided by the Chief Executive Officer Mr Ian Ross Fletcher. In his affidavits Mr Fletcher deposed that neither he nor the Second Respondent or any officer or employee of the Second Respondent had any authority over Jeanette Beckett or Malcolm Osborne or any other person in connection with the festival or organising committee. He deposed that Ms Beckett and Mr Osborne participated in the festival and organising committee in their private capacity. Mr Fletcher also deposed in another affidavit that the Second Respondent had “no direct involvement with the festival”. He stated:
“The City of Kalgoorlie-Boulder was not represented in the organising of the Rhythms in the Outback Festival and was not involved in the running and operation of the festival on the day, when the alleged discrimination is said to have occurred.”
Based on that affidavit material it was submitted for and on behalf of the Second Respondent that in the circumstances the application against the Second Respondent should be summarily dismissed. Reference was made as indicated earlier to section 18A of the RDA and in particular it was submitted that the evidence did not reveal that an employee or agent of the Second Respondent had done any act “in connection with his or her duties as an employee or agent”.
It was further submitted that on the material currently before the Court it could not be said in any event that either Ms Beckett or Mr Osborne had for the purpose of section 17 of the RDA incited the doing of any act which would be regarded as unlawful by reason of the provisions of the RDA. Reference was made to the Points of Claim filed by the Applicants pursuant to the order of the Court and in particular paragraph 22 of those Points of Claim where it is stated that:
“Shortly before the arrival of the Wongutha participants at the oval, Beckett, in consultation with Filshie, decided that the Wongutha participants including the Applicants should be moved past the entry gates”.
It was submitted that the use of the expression “in consultation with” is insufficient to constitute on its ordinary meaning and indeed as interpreted by the Courts, the concept of inciting. Reliance was placed upon the MacQuarie Dictionary of ‘incite’ defined as “urge, spur on, (a person); stir up, animate; stimulate to do something …. provoke, prompt”. The Court was referred to the decision of the Commonwealth Industrial Court in the matter of Bennett v Milliner (1959) 1 FLR 312 where in that case the Court held that as follows:
“ … The meaning of the word ‘incite’ is not the same as the meaning of the word ‘advise’, although I think that the meanings of the two words are not mutually exclusive. A person could advise a course of conduct without inciting, but perhaps he could seldom incite without also advising. Meanings of the word incite are, ‘To urge or spur on, to stir up, instigate, stimulate’ (Shorter Oxford Dictionary).”
It is interesting to note that there are very few cases relating to the interpretation of the word “incite” arising out of human rights legislation. I was referred however to the decision of the Human Rights and Equal Opportunity Commission in the matter of Shaikh v Campbell & Navona Pty Ltd [1998] HREOCA 13 (24 April 1998). In that case in referring to section 17 of the RDA the Commission stated at page 8 the following:
“ … In order to make out a case under this section the complainant has to show incitement, assistance or promotion of someone carrying out unlawful acts. Incitement denotes encouragement in an active way. …”
It was submitted in the present case that the current evidence falls well short of establishing incitement and in any event it could not be established that the individuals concerned were acting in anything other than a private voluntary capacity which would not attract the operation of the vicarious liability provision of the RDA.
The Second Respondent’s Counsel in submissions referred to an affidavit relied upon by the Applicants by Dr. Christine Jeffries-Stokes sworn on 10 March 2003. In that affidavit certain attachments had been referred to including a media release allegedly prepared with the use of the resources of the Second Respondent though bearing the logo of the First Respondent. It was submitted that production of that media release does not constitute sufficient evidence which would otherwise establish any liability either on the part of the Second Respondent, its employees or agents. Similarly, reference to the festival in a newsletter produced by the Second Respondent also exhibited to Dr. Jeffries-Stokes affidavit did nothing more, it was submitted, than advertise the event and the mere advertising of a community event by the Second Respondent should not attract liability for any alleged racial discrimination that may occur as a result of conduct of those organising the event or otherwise responsible for alleged discrimination which may have occurred during the course of the event. The mere fact that in minutes of meetings of the committee of the festival reference is made to the two individuals together with their work phone numbers and official employment titles with the Second Respondent was not sufficient it was submitted to attract liability.
The Applicants in response submitted that there was a real issue to be tried as to whether or not the Second Respondent by its employees and/or agents could be regarded as vicariously liable for breaches of the RDA and in particular meeting allegations of incitement. It was submitted that once there is a real question to be determined and the rights of parties depend on it, the Court should not dismiss the action as frivolous, vexatious and/or an abuse of process (see General Steel Industries Inc. v Commissioner for Railways (NSW) [1964] 112 CLR 125 at 129-130 per Barwick CJ and Dey v Victorian Railways Commissioners [1949] 78 CLR 62 at 91 per Dixon J). It was accepted that if the argument is so clearly untenable then applying the authorities to which I have referred the Court does have power to strike out a Statement of Claim or in the present case dismiss the action. In the present case it was submitted that the matters raised by the Second Respondent concern issues of a factual dispute which should be determined at the trial of the action.
There was some debate during the course of submissions about whether the common law principles of vicarious liability should apply or whether section 18A represents codification of the law and that it is unnecessary in those circumstances to rely upon common law principles. It is not necessary for me to determine that issue in the present application. I am satisfied that it is sufficient to rely simply upon the words of the section in order to deal with the current application for summary dismissal.
The principles which apply to summary dismissal are referred to in the authorities already cited and in particular it is useful to set out the often quoted extract from the decision of Dixon J in the Dey decision as follows at page 91:
“… A case must be very clear indeed to justify the summary intervention of the Court to prevent a Plaintiff submitting his case for determination in the appointed manner by the Court with or without a jury. The fact that a transaction is intricate may not disentitle the Court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the Court to dismiss the action as frivolous and vexatious and an abuse of process”.
Applying those principles and the principles re-stated by Barwick CJ in the case of General Steel, it is my view that on the material before me there would appear to be a real question to be determined namely whether the Second Respondent by its employees or agents is vicariously liable for alleged breaches of the RDA including incitement to commit unlawful discrimination in contravention of the RDA. Whilst I accept that there may be evidentiary difficulties in establishing the case against the Second Respondent, it does not follow that I should conclude that there is not a real question to be determined. In my view the Applicants are at least entitled to pursue the claim at this stage and endeavour to establish that vicarious liability may be established along with the breach of the appropriate provisions of the RDA. If an employee of the Second Respondent acts in a voluntary manner and is permitted and/or allowed to use the resources and facilities of the Second Respondent then that is a matter which may well be the subject of evidence and may constitute a real issue relevant to the dispute. In addition I accept the submission made for and on behalf of the Applicants that it is appropriate to look at the duties of the individual employees concerned and if there is a degree of consistency between the activities performed albeit on a voluntary basis in assisting with the festival and those duties as defined in the individual officer’s “position description” with the Second Respondent then likewise that is a matter which may be explored.
Accordingly in my view the issues currently raised by the Second Respondent in support of the Application for summary dismissal essentially highlights that there are a number of factual issues to be determined and ultimately the outcome of the application will depend upon a determination of those facts at trial. In my view applying the authorities to which I have referred it would not be appropriate to make an order that the application against the Second Respondent be dismissed.
Accordingly the order of the Court will be that the application filed by the Second Respondent on 14 February 2003 should be dismissed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 2 May 2003