Tait & Anor v Walters
[1999] QSC 112
•25 May 1999
IN THE SUPREME COURT
OF QUEENSLAND Writ No. 325 of 1999
CAIRNS
[Tait & Anor v Walters & Anor]
BETWEEN: WILLIAM “BILLY” PETER TAIT
First Applicant
AND: REBECCA SMITH, Environment Officer of the James Cook University Union
Second Applicant
AND:KAREN WALTERS, Commissioner for the Anti-Discrimination Commission of Queensland
First Respondent
AND:DANVRE CLEMENT, President of the James Cook University Union
Second Respondent
AND: RUSSELL ROBINSON of Stanwell Corporation Limited.
Third Respondent
REASONS FOR JUDGMENT
BEFORE THE HONOURABLE JUSTICE JONES
DELIVERED THE 25th DAY OF MAY 1999
Before me on 18 May, 1999 were three applications brought by Mr. Tait and Ms. Robinson (hereinafter "the applicants") against individual persons associated with the Anti-Discrimination Commission of Queensland ("the Commission"), the James Cook University Student Union ("the Union") and the Stanwell Corporation (“Stanwell”). Though individuals are named, the applicants, who appeared without the benefit of legal representation, clearly sought relief against the organisations rather than the individuals and the arguments raised by all sides seemed to proceed on that assumption.
The applications are as follows:-
1.An application for judicial review of the decision of the Regional Director of the Commission to refuse to accept the first applicant’s complaint as one falling within the Anti-Discrimination Act 1991.
2.A Notice of Motion filed on 14 May, 1999 for an order to restrain or to prohibit the Union at a meeting on Thursday, 20 May, 1998 from further considering an allegation of breach of discipline against the second applicant made on 7 May, 1999.
3.A Notice of Motion filed on 17 May, 1999 for an order to restrain the Union or any committee thereof from conducting any business related to the proposed James Cook University Community Sports Foundation (“the Foundation”) or the judicial review proceedings referred to above.
These applications were filed in the Townsville Registry. They came before me for hearing because Justice Cullinane is unable to hear the matter. Because of the urgency of the injunction applications I heard submissions by telephone link. I shall deal with the application in turn:-
Judicial Review Application
On or about 29 October, 1998 the Union served the first applicant with a notice alleging two breaches of discipline against him. He was then the environment officer for the Union and it is alleged that he distributed letters to various organisations contrary to directions given to him by the Union.
On 13 November, 1998 the Union at a special meeting found the first applicant had breached discipline.
On 23 November, 1998 the first applicant made a complaint to the Commission in respect of that decision alleging discrimination by the Union because of his political beliefs.
On 15 February, 1999 the commission responded advising the first applicant that his complaint was not accepted by the commission as satisfying the initial threshold requirement of being discrimination in relation to any of the areas specified within the Anti-Discrimination Act 1991.
The first applicant had also made a complaint against Stanwell Corporation ("Stanwell"). This arises from an incident in 1998 when the first applicant made several submissions to be included in the Impact Assessment Study being conducted by Stanwell in relation to the proposed North Queensland Power Project. The first applicant later discovered that his submission was not included in the study nor referred to in the consultation register in the appendix to the study. The first applicant complained that this omission was discriminatory conduct on the part of Stanwell. The Commission similarly refused to accept this complaint.
Each of the respondents to the judicial review application have indicated an intention to seek, pursuant to s.48 of the Judicial Review Act, to have the application for judicial review dismissed as frivolous or vexatious.
The application for judicial review is some 97 pages long. An amendment to the application was filed on 10 May, 1999 but did not add materially to the grounds relied upon. The document is not in a form which would ordinarily be tolerated by the court. It contains a mixture of evidence, argument and assertion and portrays some underlying misconceptions about the place for prerogative orders under the Judicial Review Act. Nor is it immediately clear how the second applicant has any connection with the decisions sought to be reviewed. I mention these matters simply to raise the desirability that the applicants take legal advice as to their position before the directions hearing and the other proposed applications are dealt with.
The proposed applications to dismiss the judicial review application should be determined before the directions hearing which is set down for 28 May, 1999 in Townsville. These applications could not be conveniently dealt with by telephone submissions nor is there any specific urgency which requires such a course to be taken. I expect there will be time for the hearing of all such applications in Townsville in the week commencing 26 July, 1999.
With the consent of the parties I therefore adjourn the directions hearing to be brought on upon no less than two days notice by any party to the other parties. Any application for the striking out of the application for judicial review may be returned for 26 July, 1999 but the hearing will be subject to the giving of notice referred to above.
Notice of Motion - 14 May, 1999
This matter was brought on as a matter of urgency because the Council of the Union was due to meet at 3.00 pm on Tuesday 20 May, 1999 (the day of the hearing) and the applicants wished to restrain the members of the Council from further discussing or making decisions with respect to the disciplinary charges against the second applicant.
The notice of motion, though issued as part of the judicial review proceedings clearly has no relationship to that cause. Although the documents were served on the first respondent and third respondent, the second applicant clearly seeks no relief against them. Despite the irregularities in the way the application was made, the relevant parties wanted the matter determined on its merits.
The affidavit material shows that on 7 May, 1999, the Union secretary made an allegation of breach of discipline against the second applicant, namely that she -
“a) contravened or failed to comply with a direction of Union Council in that she wilfully allowed William Peter Tait to enter the Student Representatives Room for the purpose of business other than Union related,
b) allowed William Peter Tait to enter the Student Representatives Room which aided William Peter Tait in removing a significant quantity of printing paper from the photocopy machine, which was the property of the Union, and
that in allowing William Peter Tait access to the Student Representatives Room, Rebecca Ann Smith has facilitated in the bringing and maintaining of legal proceedings against the James Cook University Union.”
Notice of a Special Council meeting of the Union was then given the only item of business for which was the consideration for the above allegation.
The second applicant is a duly elected member of the Union’s Council and holds the position of its Environment Officer whose duties are set out in exhibit “J” to the second applicant’s affidavit.
To the time of bringing the application there was no complaint of any non-compliance with the procedure to be followed in the conduct of disciplinary hearings by the Union.
The procedure to be followed at the hearing is set out in paragraph 10.2.9 of the Union Constitution and the following paragraph sets out the possible penalties in the event a two-thirds majority of the Union Council find her guilty (ex. M to the second applicant’s affidavit).
The basis upon which the second applicant seeks the intervention of this Court is the assertion that the allegation against her is:
(i) trivial, vexatious or oppressive;
(ii) an example of discrimination because of political activities and beliefs;
(iii) an attempt to pervert the course of justice;
(iv) in breach of the Hardiman principle;
(v) an example of a reasonable or probable cause of action.
The evidence of oppression referred to is the fact that after the allegation was made, the Union secretary erased the second applicant’s access code thereby preventing her access to the student representative’s room. This situation existed for only 24 hours. This does not in my view indicate any bias or oppression which is likely to prejudice the fair and impartial hearing of the disciplinary charges.
The grounds (ii), (iii) and (v) above seem to be a reference to the confrontation between the Union and the first applicant which finds expression in part in the judicial review proceedings. The terms in the which the disciplinary charge was framed makes reference to those proceedings but this seems to be done as identifying circumstances of aggravation rather than of breach. The breach clearly refers to the failure to comply with a Council direction and the removal of property. I do not regard the reference to the current legal proceedings as in any way affecting the competence of the Council to hear and determine the disciplinary charge.
In relation to (iv) above it is not clear to me what is the principle said to have been breached. The decision in R v Australian Broadcasting Tribunal ex parte Hardiman [1] defines the duty on the part of the tribunal charged with the responsibility of making an enquiry to do so thoroughly even if there is no party before it. The Union Council is the tribunal required to determine this matter as provided by the Union Constitution. As part of that process it will have to consider the facts which investigations by the Union offices have revealed. There is no suggestion that the Council has limited, or is likely to limit, in any way that process. Nor in connection with ground (vi) is there any evidence upon which this Court can determine the reasonableness or otherwise for the Council’s intention to proceed with the hearing. That is for the Council to determine how it will proceed recognising the requirement to comply with the rules of natural justice..
[1] (1980) 144 CLR 13
I therefore dismiss this application. The question of costs as I have indicated will be considered at the time of the adjourned hearing of the judicial review proceedings.
Notice of Motion - 17 May, 1999
This application is made on behalf of both applicants and is supported by an affidavit by the second applicant. It seeks to restrain the Council of the Union from considering or discussing the two matters which are the subject of the judicial review proceedings until these proceedings are dealt with.
The complaint to the Anti-Discrimination Commission concerning Stanwell is unlikely to engage the attention of the Union in any meaningful way and it is difficult to understand why that topic should have been referred to in this proceeding. There is certainly no evidence of any impending activity by the Union relative to the North Queensland Power Project nor any evidence of any contact between the Union and Stanwell.
The evidence in support of this application goes to an issue which has arisen between the applicants and the Union about the latter’s participation in a proposal to establish the Foundation which not only involves the Union and the University but also three local authorities.
The issue centres on whether the Union has complied with its own rules, particularly with respect to the consultation process with its members, before becoming involved in the proposal. No evidence has been placed before me as to the requirements of the rule or of the acts or omissions of the Union with respect to those rules.
Moreover, the first applicant is not a member of the Union and has no financial or proprietary interest in the proposal. Nor in my view does he have any “special” inertest such as to attract the equitable jurisdiction of this Court. Whilst there is no precise formula as to what suffices for a special interest in the subject matter of the litigation as discussed by the High Court in Bateman’s Bay Land Council v Aboriginal Community Benefit Fund Pty Ltd[2], the first applicant has not shown any material interest beyond what is held by any member of the public at large.
[2] 1998 ALJR 1270
The second applicant, though a member of the Union and therefore with at least a basic claim of having standing, does not bring forward any evidence of wrong behaviour on the part of the Union. There is no identifiable issue which would be the subject of other proceedings.
No details are given as to the nature of the Foundation’s undertaking nor of the effect of any delay in the Union’s’s commitment to the proposal. I am not satisfied therefore that the balance of convenience would favour the granting of the injunction.
Finally, it is submitted that the Court should have regard to the fact that neither applicant could give an undertaking as to damages that would have any substance. The applicants in the documents referred to and in argument before me indicated an inability to raise funds for legal advice and having to live in “considerable financial discomfort” [3]. Having regard to what I have already said, there is no need to further consider this point.
[3] Application at p.86
This application is dismissed. I reserve the question of costs to the adjourned hearing at Townsville.
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