Tait v Smith
[1999] QSC 201
•1 August 1999
IN THE SUPREME COURT
OF QUEENSLAND
TOWNSVILLE Writ No. 325 of 1999
[Tait v Smith]
BETWEEN: WILLIAM “BILLY” PETER TAIT
First Applicant
AND:REBECCA SMITH Environment Officer
Of the James Cook University Union
Second Applicant
AND: KAREN WALTERS Commissioner of the
Anti-Discrimination Commission Queensland
First Respondent
AND:DANVRE CLEMENT President of the James Cook
University Union
Second Respondent
AND:RUSSEL ROBINSON of Stanwell Corporation Limited
Third Respondent
REASONS FOR JUDGMENT
BEFORE THE HONOURABLE JUSTICE JONES
DELIVERED THE DAY OF AUGUST, 1999
On 21 April, 1999 William Peter Tait (“the applicant”) together with Rebecca Smith filed an application for judicial review of decisions made by Karen Walters as the Anti-Discrimination Commissioner (“the commissioner”), by the James Cook University Union (“university union”) and by the Stanwell Corporation (“Stanwell”). Rebecca Smith has withdrawn from the case and orders consequent upon her so doing have already been made. With respect to the decisions of the University Union and Stanwell, the application was incorrectly entitled. The applicant directed his application to the President of the University Union, Mr. Clement, and to an employee of Stanwell, Mr. Robinson. Whilst objection was taken by the respective respondents to this error, argument nonetheless proceeded on relevant issues as though the application was correctly entitled. This application was amended on 10 May, 1999 and now comes before me for orders for directions.
Each of the respondents to the application have applied to have the application against them dismissed on various grounds. It is appropriate that I deal with each of these summonses for dismissal before any further consideration is made of the original amended application.
After the hearing of these matters on 30 July, 1999 the applicant has, with the knowledge of the respondents, lodged with the registry further material. This includes an affidavit sworn on 4 August, 1999, an extract from the University Union’s news bulletin, extracts from parliamentary debates which led to the enactment of the Judicial Review Act (“JRA”) and an incomplete copy of the applicant’s submissions made to the Court of Appeal against my earlier decision in an injunction application on 18 May, 1999. I have had regard to this additional material which I find does not relevantly touch upon the issues which I have to determine in these summonses to dismiss the applicant’s amended application.
The bases upon which each respondent relies for the amended application to be dismissed are:-
(i)The application was made out of time, and no reason is shown why time should be extended;
(ii)No reasonable basis for the application is disclosed; and
(iii)The application is frivolous, vexatious or an abuse of the Court’s process.
Application by the Commissioner
The applicant lodged two complaints with the commissioner namely –
(i)On 23 November, 1998 an allegation of discrimination in the workplace because of his political belief and activity by the union as a result of his being found guilty of a breach of discipline as defined in Regulation 10.12.6 of the Union Regulations; and
(ii)On 30 January, 1998 alleged discrimination by Stanwell, by reason of its failure to include in a list of consultants in a draft Impact Assessment Study (“IAS”) for the Pinnacle Power Station, a reference to submissions made by him on behalf of the university union.
In February, 1999 the commissioner responded to these complaints by letter which included the following terms:-
“As to the question of whether your allegations of discrimination are because of your political belief or activity or for some other reason, I have formed the view that alleged less favourable treatment, including the union disciplining you and denying you access to the union facility and services, was not because of your political belief of activity. I believe that you were deprived of access to the union’s facilities because your actions were seen to damage the union’s public position, as well as the organisation’s reputation. Further, it appears that you used the union’s resources and information you gathered in your position to do so. Your duties required you to liaise with external bodies on behalf of the union. In sending your letters, it appears that you acted against the union’s interests and wishes.
It may be that the action taken by the union was unfair, but that does not mean that discrimination has occurred. The role of the Anti-Discrimination Commission is to deal with complaints of discrimination, not merely disputes, which may involve political activity or political belief.”
Relating to Stanwell the terms of the letter were:-
“I now turn to your complaint against Stanwell Corporation Limited and James Cook University Union.
As outlined above, the Act protects everyone from unfair discrimination in a number of areas of activity, including work. In relation to your claim against Stanwell Corporation Limited, you state that the alleged discrimination occurred at work. However, there is no work relationship (either as an employee or volunteer or contractor) between you and Stanwell Corporation Ltd. Your work relationship is with the union. In my view this complaint, insofar as it seeks to name Stanwell Corporation Ltd as a respondent cannot be accepted...
You also state that another ‘area’ where the alleged discrimination occurred was “in the process of making a submission to a government required public consultation/participation process” . This is not an area covered by the Act, however, you may like to contact the parliamentary commissioner for Administrative Investigations (the Ombudsman) to see if you can bring a complaint about the omission to the Ombudsman.”
That letter was sent to the applicant on 15 February, 1999.
The applicant’s application was filed on 21 April, 1999 some 9 weeks after the applicant was likely to have received the decision.
The first point taken by the commissioner is that this application is some 5 weeks out of time. However, pursuant to s.26 of the JRA, the applicant sought an extension to the time limit.
The first point raised on behalf of the commissioner is that no explanation for the delay has been given in the material filed. The applicant, from the bar table, indicated that the reason for his not filing the matter was that he was not informed as to his rights and that he lacked the resources to pursue the application. I note that the filing fee on an application such as this is $171.50.
The approach to questions such as this was suggested by Moynihan J in Kuku Djungan Aboriginal Corporation v Christiansen [1] where he said:-
“It seems to me that, prima facie, proceedings commenced outside the limitation period ought not to be entertained unless the applicant shows an acceptable explanation of the delay and that it would be fair and equitable in the circumstances to extend the time. Such considerations, in cases such as the present, extend beyond considerations applying as between the applicant and the respondent and to include a wider public interest. The same may be said of considerations of prejudice to the respondent and others consequent upon the delay in bringing the application. In any event this does not seem to be an issue. The considerations to which I have been referred seem supported by the likes of Hunter Valley Developments Pty Ltd v Minister for Home Affairs and the Environment [2] and Lucic v Nolan [3] although these cases deal with different legislation. Those cases also establish that the merits of the substantive application are a consideration relevant to granting an extension of time and it is material to term to a consideration of those merits.”
[1] [1993] Qd R 663 at p.665
[2] (1984) 58 ALR 305/310
[3] (1982) 45 ALR 411/415
Mr. White of counsel, appearing for the commissioner, argues that the application has no merits. This is relevant both to the issue of extension of time and to the issue of whether the amended application should be dismissed. Mr. White contends that the applicant has not even shown that the commissioner was aware of his political belief or activity nor that this was a factor in his dismissal by the union.
Dealing with the merits of the case and having regard to the material which is exhibited to the affidavit of Ms. Booth on behalf of the commissioner, I would have no doubt that the political belief and activity of Mr. Tait was well known to the members of the university union who determined the question of his breach of discipline. But there was simply nothing placed before the commissioner to indicate that the union’s decision was arrived at because of, or even having regard to, any political activity or belief of the applicant. The terms of the allegation of breach related to the applicant’s unauthorised use of union property and to his disobedience of union directions. These seem to me to relate to quite discrete factual issues which the union obviously determined against him. The very foundation of the applicant’s appeal to the commissioner – discrimination on the grounds of political belief and activity – is not made out. The applicant claims that he was treated less favourably referring to his denied access to union offices and facilities. This however was a consequence of his being found in breach of union discipline and not connected to his political activity. He claimed that the sending out of letters using union resources was part of his political activity. This misses the point that what the university union complained of was the unauthorised use of resources and not the purpose for which those resources were used. The applicant also raised the question of the fact that the union council meeting which found him guilty of breach of discipline was held in camera but I have been referred to the relevant regulations which satisfies me that it was within the union’s power to so conduct its proceedings.
I do not regard the applicant’s prospects of successfully pursuing his amended application against the Commissioner as having any significant value. The Commissioner’s explanation for not accepting his claim of being discriminated against was quite clear and delivered in a timely way. The applicant had ample opportunity to obtain legal advice, or himself to determine whether to institute the current proceedings within time. His explanation for not doing so is not at all compelling.
Because of his failure to make the application within time and because I regard that there is no reasonable basis for his application in any event, the claim against the Commissioner should be dismissed.
Application by the University Union
The claims against the Student Union are raised indirectly as part of the claim against the commissioner and directly at pages 39-52 of the amended application. At p.50 a sub-heading suggests that the applicant was seeking a statutory order to review as well as the prerogative order to review pursuant to Part V of the JRA.
A statutory order to review would not be available since it seems clear that the decision of the University Union against which relief is sought was not made under an enactment so as to satisfy s.4 of JRA. This matter was considered by Lee J. in McLean v Gilliver [4] where at pp.644-5 the following appears:-
“The point is that some power to make that decision must be contained in the enactment itself and in the present case I can find nothing in the J.C.U. Act or the statutes made thereunder which gives rise to the power to prescribe and decide upon qualifications for members of the Union’s executive. Indeed s.21 of the J.C.U. Act implies that this is a matter entirely for the Union itself to define by its constitution, subject of course to the Union’s power of veto.
In the present case, I do not think that the nexus between the decision making power and the Act is sufficiently strong to enable one to say that a decision made pursuant to the Union’s constitution or regulations is therefore made under the Act itself. The proximate source of that power is the constitution and the regulations themselves. In order to enliven the Court’s jurisdiction under the Review Act, therefore, it must be shown that the constitution and the regulations under which the decision was made are themselves “enactments”.”
His Honour then went on to examine the constitution and regulations of the Union and found that these had none of the characteristics of the statutory instrument but were private or domestic documents. Consequently, the Court would have no jurisdiction to consider any application for statutory order to review the decision of the University Union.
[4] [1995] 1 Qd R 637
So far as the application is made pursuant to Part V of the JRA the decision challenged was made on 13 November, 1998. The application therefore ought to have been made on or before 13 February, 1999 but was not made until 21 April, 1999 – some two months out of time. In his request to extend time the applicant relied, by way of explanation, upon his limited financial resources and the complexity of the application. The applicant also agreed that his approach was to follow the course of alleging discrimination as his first challenge to the decision. It was only when that approach was rejected it seems that his thoughts turned to alleging circumstances justifying the making of prerogative orders.
On 13 November, 1998 the University Union determined that disciplinary charges brought against the applicant had been proven. There were two charges, namely –
“Billy Tait has pledged the credit of the Union by the signing (and sending by registered mail without proper authorisation) of letters to:-
1) the Vice-Chancellor of the James Cook University;
2) the Mayor of Townsville City Council;
3) the Mayor of Thuringowa City Council; and
4) the Cairns City Council. ...”
and
ii)in sending such letters (the applicant) has failed to comply with a democratically voted, specific direction from Union Council of which he is a member, to endorse the Sports Foundation proposal and in so doing is guilty of s.10.12.6 (a) of the Union’s Regulations.
There was only one meeting of the University Union which was held in camera and at which both charges were dealt with.
One of the points raised by the applicant was that the charges should not have been determined at an in-camera hearing. This point has no validity since the regulations specifically provide for such a hearing to be conducted in this way. Regulation 1.20 is in the following terms:-
“1.20 In Camera meetings
1.20.1A meeting can only resolve to proceed in camera to consider business relating to personal or staffing matters.
1.20.2Once a meeting has resolved to proceed in camera, any person who is not a member must immediately leave the meeting.”
Apart from that there was no suggestion in the material of any breach of rules of natural justice, of bias in the University Union, any want of jurisdiction, fraud, or indeed any of the usual grounds upon which prerogative orders may be sought.
The applicant did complain from the bar table that he was never given any specific direction, his disobedience to which was the subject of the charge. Raised in this way there was no opportunity for the Union to challenge this assertion.
The applicant had made this allegation in one of his documents to the Commission [5] in these terms:-
“To my knowledge there was no “specific direction from Union Council...to endorse the Sports Foundation proposal” and if there were this direction it would be against the implied freedom of communication in the Australian Constitution and would fail the 2 part test (Lange v ABC) and would therefore be invalidated.”
[5] See Ex. SB1 to the affidavit of Sandra Booth filed on 17 June, 1999
There is no suggestion that the material lodged with the Commissioner was ever made available to the university union for its comment. The material lodged with the Commissioner was produced in this application by the Commissioner simply to disclose to the Court the material which was before it. This information is not evidence directly led by the applicant to support his claim against the university union.
On reflection it would be remarkable if such an allegation, if raised, would not be considered and dealt with at the hearing by the university union. Were it to be a basis for the seeking of a prerogative order one would have expected it to be raised in the highly detailed application filed on 21 April, 1999 or the amendment to that application filed on 10 May, 1999.
In the end result I am left with nothing more than an assertion from the bar table upon which, in the circumstances, I am not prepared to act. That being so, the applicant does not have evidence which suggests there is any basis for the review of the proceeding conducted by the university union. Moreover, the nature of the university union’s constitution and its relationship with its members (which is described as being of a domestic nature) would give rise to considerable doubt whether the relief defined in s.41(2) of the JRA would be available.
In circumstances where the essential explanation for delay was an unsuccessful attempt to gain relief from another tribunal, which gave its decision approximately one month prior to the expiration of time for this application and where no reasonable basis for the application is shown, I am not prepared to grant any extension of time. In all the circumstances, the amended application ought therefore to be dismissed.
The Application by Stanwell
This is an application for a statutory order to review made out of time.
The complaint which the applicant makes against Stanwell is that it failed to include his name in a schedule to an IAS which was to list the consultants from whom reports had been obtained.
The applicant had made submissions, both written and oral, to Stanwell opposing the establishment of an electricity power generating facility in North Queensland. In so doing he claimed to be speaking in his role as environment officer on behalf of the university union. The submissions were made as part of the public interest debate relating to the establishment of the power facility.
According to the amended application, the draft IAS listed the identity of consultants to the project in schedule “L”.
The draft study was not put in evidence, but one has sufficient familiarity with documents of this kind to appreciate the purpose of listing the professional consultants and experts who have furnished reports on the project. The applicant appears not to have appreciated that purpose if he felt that all submissions made in the course of public interest debate also had to be included. In short he has failed to make the distinction between the consultants who Stanwell approached for reports and persons who have simply contributed to the public debate.
Beyond that there is no evidence that Stanwell or any of its officers were aware of the applicant’s political beliefs much less that such knowledge as they may have had, caused them to treat him less favourably in the manner he alleges.
Stanwell is a State electricity entity within the meaning of the Electricity Act. In relation to this project it was engaged in commercial activities [6].
[6] See s.256 of the Electricity Act 1994
S.18A of the JRA provides:-
“18A. This act does not apply to decisions of a GOC mentioned in Schedule 6 to the extent provided under the application provision mentioned for the GOC in the Schedule.”
Stanwell is a corporation covered by this particular section. By virtue of s.256 of the Electricity Act the JRA does not apply to a decision of a State Electricity entity made in carrying out its excluded activities (i.e. its commercial activities or community service obligations prescribed under the Regulations).
The applicant’s approach to the commissioner alleging discrimination was properly rejected, there simply being no evidence upon which the commissioner could conclude otherwise. Consequently the seeking of relief against the commissioner which indirectly involves Stanwell is not reasonably based. Any direct application for statutory order to review decisions of Stanwell Corporation plainly is prevented by the legislative terms to which I have referred above.
The amended application against Stanwell therefore, in my view, must be dismissed.
Costs
Each of the respondents seeks an order for costs. This requires a consideration of s.49(2) of the JRA which details the various matters to which the Court is to have regard. Each of the respondents is a relevant applicant within the meaning of s.49(1)(b) or (c) or both. The applicant did claim for himself some special interest role as a representative of the people of Queensland and further as representative of students enrolled at the James Cook University. I reject any such claim.
I have had regard to the course of conduct of the applicant who appears to have pursued an appeal against every decision not made in his favour. Being found guilty of breach of discipline by the University Union he appealed to the commissioner. Having had this appeal rejected he initiated these proceedings in which he as well sought an injunction to restrain the University from considering matters relevant to its proper function. Having been unsuccessful in gaining such an injunction the applicant appealed to the Court of Appeal only to have each notice of motion be dismissed with costs.
Having found that there is no reasonable basis for any application against the separate respondents, I have regard to the expense and inconvenience to these parties being brought to Court to argue against claims, which on any view of the evidence would appear to have little prospect of success, brought by a person who has no financial worth. It is difficult to see how there can be any approach other than ordering the applicant to pay the costs of each respondent on a party and party basis. This order will include the reserved costs of and incidental to the hearing on 18 May, 1999.
I order that:-
1.The application filed on 21 April, 1999 as amended by the application of 10 May, 1999 be dismissed.
2.The first applicant pay to each of the first, second and third respondents its costs of and incidental to defending the application, including costs reserved on 18 May, 1999.
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