FEDERAL COURT OF AUSTRALIA

Prior v Wood [2017] FCA 193

REASONS FOR JUDGMENT

INTRODUCTION:

1    The applicant (“Ms Prior”) seeks an extension of time in which to apply for leave to appeal against a decision of a Judge of the Federal Circuit Court of Australia (the “Circuit Court”). The matter has attracted considerable media attention. The present application involves complex procedural questions, as well as difficult factual and legal considerations. In view of the widespread public interest in the matter, I shall deal with some aspects in more detail than I might otherwise have done.

MS PRIOR’S CLAIM

2    Ms Prior claims that the present respondents (“Mr Wood”, “Mr Powell” and “Mr Thwaites”, collectively the “respondents”) each infringed s 18C of the Racial Discrimination Act 1975 (Cth) (the “Racial Discrimination Act”). Ms Prior was, at the time of the alleged infringements employed by the Queensland University of Technology (“QUT”). The respondents were, or had been students at that university. QUT is a party to the principal proceedings, but not to the present application. On 27 May 2014 Ms Prior made a complaint to the Australian Human Rights Commission (the “Commission”) pursuant to s 46P of the Australian Human Rights Commission Act 1986 (Cth). The conduct giving rise to such complaint had occurred on 28 May 2013. Proceedings in the Commission were terminated on 25 August 2015. The Circuit Court proceedings were commenced on 23 October 2015.

3    Sections 18B, 18C and 18D of the Racial Discrimination Act provide:

18B    Reason for doing an act

If:

(a)    an act is done for 2 or more reasons; and

(b)    one of the reasons is the race, colour or national or ethnic origin of a person (whether or not it is the dominant reason or a substantial reason for doing the act);

then, for the purposes of this Part, the act is taken to be done because of the person’s race, colour or national or ethnic origin.

18C    Offensive behaviour because of race, colour or national or ethnic origin

(1)    It is unlawful for a person to do an act, otherwise than in private, if:

(a)    the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

(b)    the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

...

(2)    For the purposes of subsection (1), an act is taken not to be done in private if it:

(a)    causes words, sounds, images or writing to be communicated to the public; or

(b)    is done in a public place; or(c)    is done in the sight or hearing of people who are in a public place.

(3)    In this section:

public place includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.

18D    Exemptions

Section 18C does not render unlawful anything said or done reasonably and in good faith:

(a)    in the performance, exhibition or distribution of an artistic work; or

(b)    in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or

(c)    in making or publishing:

(i)    a fair and accurate report of any event or matter of public interest; or

(ii)    a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.

4    The respondents deny any breach of s 18C and, in the alternative, seek to invoke the protection of s 18D.

5    As I understand it, Ms Prior’s case is as pleaded in her amended points of claim (the “points of claim”). At paras 5-14 she sets out the relevant incidents as follows:

5.    The Applicant was at all material times:

(a)    an employee of the second respondent;

(b)    identified as an aboriginal person;

(c)    engaged in a course of study with the second respondent;

(d)    performing the role of Administration Officer in the first respondent's Oodgeroo Unit, Garden's Point campus in accordance with her duties as outlined in the Position Description.

6.    The Oodgeroo Unit is a unit within the First Respondent established to:

(a)    help Aboriginal and Torres Strait Islander people to enter university;

(b)    offer academic, personal and cultural support to students;

(c)    conduct     academic research in Indigenous studies, knowledge and associated areas of interest;

(d)    provide an indigenous perspective to the First Respondent through teaching and learning; and

(e)    organise events for staff, students and the general public.

7.    At the Gardens Point campus, the Oodgeroo Unit has offices, and provides facilities for Aboriginal and Torres Strait Islander students including, computer labs, printing and photocopying facilities. The Oodgeroo Unit also provides quiet places for Aboriginal and Torres Strait Islander students to study, work with tutors, and to meet with other students in a culturally safe space.

8.    The Applicant works as part of the Professional Services Team within the Oodgeroo Unit, which provides operational and administrative support to students and staff of the Oodgeroo Unit.

9.    The Applicant's role in the Oodgeroo Unit is to act as the first point of contact for staff and student visitors to the Oodgeroo Unit's facilities at the Gardens Point campus. The Applicant's role requires that she work alone in the reception area of the Oodgeroo Unit performing this function.

10.    The Applicant's role also:

(a)    has responsibility for the reception area of the Oodgeroo Unit's facilities at the Gardens Point campus;

(b)    has responsibility for the meeting rooms at the Oodgeroo Unit's facilities at the Gardens Point campus;

(c)    manages the tutorial room, including the bookings for the tutorial room;

(d)    monitors usage of the meeting rooms, tutorial room and computer lab;

(e)    maintains the office computers and stationary; and

(f)    provides general assistance to students and tutors using the facilities.

11.    The computer lab in the Oodgeroo Unit and the Gardens Point campus is provided for use by Aboriginal and Torres Strait Islander students only.

12.    On 28 May 2013 three men entered the computer lab in the Oodgeroo Unit at the Gardens Point campus.

13.    The Applicant advised the three men that they were in the Oodgeroo Unit, which was an indigenous space for Aboriginal and Torres Strait students studying at the First Respondent. The Applicant asked the three men whether they were Indigenous. The three men told the Applicant that they were not Indigenous. The Applicant advised the man that there were other places at the Gardens Point campus where they could access computer facilities and asked the men to leave ("the Computer Lab Incident").

14.    One hour after the Computer Lab Incident, information was posted on a Facebook page called "QUT Stalker Space" ("Stalker Space") regarding the Computer Lab Incident:

(a)    a post by the fourth respondent, Alex Wood, stated "Just got kicked out of the unsigned Indigenous computer room. QUT stopping segregation with segregation".

(b)    The sixth respondent, Jackson Powell, posted the following:

(i)    "I wonder where the white supremacist computer lab is"

(ii)    (in response to a post) it's white supremacist, get it right. We don't like to be affiliated with those hill-billies"

(iii)    (responding to the ninth respondent)"Chris Lee ... today's your lucky day, join the white supremacist group and we'll take care of your every need".

(d)    the seventh respondent, Calum Thwaites, posted "ITT niggers".

6    At para 15 Ms Prior pleads that the computer lab incident and the posts made her feel that indigenous students could not have a culturally safe space to study, and that she was very upset. Ms Prior then pleads other events which relate to her claims against other respondents. At paras 21 and 22 she pleads:

21.    The Applicant left work at the Oodgeroo Unit on 29 May 2013 and went home sick.

22.    By email addressed to the Second Respondent and cc'd to Professor Lee Hong dated 30 May 2013 the Applicant advised:

(a)    the Computer Lab Incident Posts, Dr Hayes' Posts and the Further Posts were very stressing for her personally;

(b)    she had left the campus the previous day due to stress;

(c)    she did not feel safe attending her workplace and believed it was a workplace safety issue;

(d)    she felt that she may be subject to verbal or physical attack by the people who posted the Computer Lab Posts and the Further Posts, or people associated with them if she returned to work at the Oodgeroo Unit;

(e)    she was seeking assurances in relation to her workplace safety prior to returning to work at the Oodgeroo Unit.

7    At para 46 Ms Prior pleads:

46.    The Applicant contends that each of the posts comprising the Computer Lab Incident Posts and [other posts not involving Messrs Wood, Powell and Thwaites]:

(a)    were writings communicated to the public and, therefore, done otherwise than in private;

(b)    were reasonably likely to offend, insult, humiliate or intimidate the Applicant and/or Aboriginal and Torres Strait Islander students of the First Respondent and/or Aboriginal or Torres Strait Islander people;

(c)    were done because of the race, colour or national or ethnic origin of Aboriginal and Torres Strait Islander students of the First Respondent entitled to use the facilities of the Oodgeroo Unit; and

(d)    were therefore made in contravention of section 18C(1) of the Act.

8    At paras 52 and 53 Ms Prior pleads:

52.    The Applicant has suffered loss and damage as a result of the First to Tenth Respondents’ contraventions of the Act, namely:

(a)    offense [sic], embarrassment humiliation and psychiatric injury;

(b)    ongoing fear for her safety;

(c)    future economic loss as a consequence of the Applicant being forced to take unpaid sick leave unlawful discrimination by the First Respondent as set out in these contentions;

(d)    loss of training further education course opportunity.

53.    The Applicant seeks the following remedies:

(a)    the First to Tenth Respondents provide a public apology to the Applicant;

(b)    the First to Tenth Respondents pay the Applicant compensation for 'loss or damage suffered by the Applicant caused by the contraventions of the Act, namely;

(i)    $100,000.00 for general damages;

(ii)    damages for past economic loss being the Applicant’s lost wages from 29 May 2013 to 6 September 2015;

(iii)    future economic loss being the Applicant's reduced salary from 7 September 2015 to a date determined by the Court;

(c)    interest at the rate of 9% simple interest per annum on the amount of compensation.

9    His Honour attached to his reasons the “message thread” in which the impugned posts appeared, commencing with that of Mr Wood, deleting only the names of persons not presently involved in this case. I shall also adopt that course. This document was exhibit 1 below. I shall refer to it in that way. Exhibit 1 on appeal is the transcript of proceedings below.

THE LAW

10    The operation of s 18C was considered by Kiefel J in Creek v Cairns Post Pty Ltd (2001) 112 FCR 352, which decision was substantially applied by the Full Court in Toben v Jones (2003) 129 FCR 515. In order to determine whether conduct infringes s 18C, one must ask, pursuant to s 18C(1)(a), whether the action in question is reasonably likely, in all the circumstances to offend, insult, humiliate or intimidate an identified person or group of people. One must then ask, pursuant to s 18C(1)(b) whether the act was done because of the race, colour or national or ethnic origin of the person or group. In Creek, her Honour said at [12] and [13], concerning s 18C(1)(a):

12    The first enquiry of s 18C is whether the act in question, here the publication of the photograph of the applicant, can in the circumstances be regarded as reasonably likely to offend or humiliate a person in the applicant’s position. The test is, as Drummond J observed in Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615 ... , necessarily objective. For this enquiry what brought about the action constituting the “behaviour” in question and what the applicant felt are not relevant.

13    It is necessary first to consider the perspective under consideration, which is to say the hypothetical person in the applicant’s position or the group of which the applicant is one. A reference to the person’s race may be too wide a description in some cases. That would be so here, where Aboriginal peoples’ views, about being portrayed as having a more traditional lifestyle, will differ depending upon where and in what circumstances they live. In that respect I consider the perspective suggested by the applicant’s counsel in submissions to be apposite, namely that of an Aboriginal mother, or one who cares for children, and who resides in the township of Coen. Such a person would, in my view, feel offended, insulted or humiliated if they were portrayed as living in rough bush conditions in the context of a report which is about a child’s welfare. In that context it is implied that that person would be taking the child into less desirable conditions. The offence comes not just from the fact that it is wrong, but from the comparison which is invited by the photographs. That is, I consider, how a reasonable reader would have viewed the photographs. So far as concerns the respondent’s submission that a reader would simply look at the people involved in the drama, it is not just the faces of the parties which are shown in the photographs. A background is also provided to them and in each case it conveys what might be taken as the parties’ lifestyle. A comparison is in my view invited.

11    At [14]-[16] her Honour said:

14    The respondent submitted that only very serious and offensive behaviour was intended as the subject of s 18C. This can be seen from the heading to the Part, which requires the behaviour to be based on racial hatred, the Second Reading Speech and the Explanatory Memorandum to the Racial Hatred Bill 1994. The Memorandum said that the Bill addressed concerns highlighted by the findings of the “Inquiry into Racist Violence and the Royal Commission into Aboriginal Deaths in Custody” and in doing so, the Bill intended to close a gap in the legal protection available to the victims of extreme racist behaviour.

15    It needs to be borne in mind, when reviewing speeches or writings about the Bill, that in addition to providing for the civil prohibition which became s 18C, it was then intended to create three criminal offences relating to inciting racial hatred or threatening racial violence. Those proposed offences did not however survive the federal legislative process and do not appear as sections in the Crimes Act 1914 (Cth) as was intended. The Memorandum went on:

“The Bill is intended to strengthen and support the significant degree of social cohesion demonstrated by the Australian community at large. The Bill is based on the principle that no person in Australia need live in fear because of his or her race, colour, or national or ethnic origin.”…

“The Bill maintains a balance between the right to free speech and the protection of individuals and groups from harassment and fear because of their race, colour or national or ethnic origin. The Bill is intended to prevent people from seriously undermining tolerance within society by inciting racial hatred or threatening violence against individuals or groups because of their race, colour or national or ethnic origin.”

The s 18C provision was described as “… the proposed prohibition on offensive behaviour based on racial hatred …”.

16    Pursuant to the section the nature or quality of the act in question is tested by the effect which it is reasonably likely to have on another person of the racial or other group referred to in par (b) of the subsection. To “offend, insult, humiliate or intimidate” are profound and serious effects, not to be likened to mere slights. Having said that, the court would of course be conscious of the need to consider the reaction from that person or group’s perspective. If par (a) of the subsection is established, as it is here, it is necessary then to consider the additional requirement relating to the reason for the act.

12    Concerning s 18C(1)(b) her Honour said at [17]-[28]:

17    The title says that the prohibition is against behaviour which is based on racial hatred, but the heading to the section simply refers to the reason for it being “race, colour or national or ethnic origin.” This is reiterated in s 18B, which deals with acts being done for more than one reason. So long as one of those reasons is one of the four listed in the subsection, the act in question is taken to be for that reason.

18    Headings are to be taken as part of the statute (s 13(1) Acts Interpretation Act 1901 (Cth)). Drummond J in Hagan considered that the heading to Part IIA should be taken into account as part of the statutory context, referring to CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408, where it was said that the modern approach to statutory interpretation was to consider context at the outset and this included the mischief which, it could be discerned, the statute intended to remedy. Whilst one may accept that hatred of other races is an evil spoken of in the statute, I do not consider that the heading creates a separate test - one which requires the behaviour to be shown as having its basis in actual hatred of race. Sections 18B and 18C make it plain that the prohibition will be breached if the basis for the act was the race, colour, national or ethnic origin of the other person or group. Whilst the reason for the behaviour in question may be a matter for enquiry, and this is a topic I will shortly turn to, the intensity of feeling of the person whose act it is, is not necessary to be considered, although in some cases it might shed light on what is otherwise inexplicable behaviour.

19    There have been differences of view expressed about the meaning of phrases such as “on the ground of” and “by reason of” in the context of discrimination legislation, and as to whether they require a causal connexion between the act complained of and the characteristic or attribute of the person identified in the legislation, which is to say the reason for the conduct. In some judgments it has been held that it does not matter if intention or motive are absent. This was the view expressed by Deane and Gaudron J in Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165, 176. Their Honours were dealing with provisions of the Anti-Discrimination Act 1977 (NSW) (s 24(1) and s 24(3)) which are similar to s 9 and s 9(1A) RDA. Section 24(1) provided that a person discriminated against another if, “on the ground of his sex”, or “a characteristic that appertains generally to” or “is generally imputed to persons of his sex, he treats him less favourably than in the same circumstance, or circumstances which are not materially different, he treats or would treat a person of the opposite sex”. Section 24(3) provided for indirect discrimination. And in Waters v Public Transport Corporation (1991) 173 CLR 349, 359, Mason CJ and Gaudron J considered that s 17(1) of the Equal Opportunity Act 1984 (Vict), which refers to discrimination “on the ground of the status or by reason of the private life of the other person”, required only that the material difference in treatment be based on the status or private life of that person, notwithstanding an absence of an intention or motive on the part of the alleged discriminator that is related to the status or private life of the person less favourably treated. Such views are in line with R v Birmingham City Council, ex parte Equal Opportunities Commission [1989] AC 1155 (HL) referred to in Waters (and see also James v Eastleigh Borough Council [1990] 2 AC 751 (HL)).

20    Their Honours’ reasoning was also that the first of the discrimination provisions, similar in effect to s 9 RDA set out above, extend to acts of indirect discrimination. In cases of indirect discrimination motive or intention play no part. The judgments of Dawson and Brennan JJ in Banovic (184, 171) and Dawson, Toohey and McHugh JJ in Waters (392-3, 401-2) however hold that provisions like ss 9 and 9(1A) RDA are mutually exclusive of each other. Such a conclusion is not directly relevant to any issue here concerning s 18C RDA, but it may well explain the construction placed on phrases such as “on the ground of” and “by reason of” by Mason CJ, Deane & Gaudron JJ. McHugh J in Waters (400-1) considered that the examples given by Deane and Gaudron JJ in Banovic, where intention or motive could not be said to be a necessary condition of liability, were cases falling within the concept of indirect discrimination dealt with under the separate subsection. His Honour expressed the following, contrary view of the meaning to be given to the words of the requirement:

“The words “on the ground of the status or by reason of the private life of the other person” in s. 17(1) require that the act of the alleged discriminator be actuated by the status or private life of the person alleged to be discriminated against.

…

The words “on the ground of” and “by reason of” require a causal connexion between the act of the discriminator which treats a person less favourably and the status or private life of the person the subject of that act (“the victim”). The status or private life of the victim must be at least one of the factors which moved the discriminator to act as he or she did.”

21    His Honour went on to say that, whilst those determining whether discrimination has occurred are not bound by “the verbal formula” which the alleged discriminator has used, if they would in any event, have acted in the way they did or if they acted genuinely on a non-discriminatory ground, they cannot be said to have acted “on the ground of the status or by reason of the private life” of the victim.

22    In my view this accords with the reasoning of Dawson J in Banovic, which described the enquiry as one as to the “true basis” or “true ground” of the action in question. His Honour also held that the subsection was not to be supplied [sic] subjectively, which I take to mean not by reference only to what the person whose conduct in question provides as a ground or basis for the action. The enquiry considers what was in truth likely to have given rise to it, when regard is had to all the circumstances, and this would include the nature of the conduct and the words and expressions used.

23    Such an approach would also seem to me to address the concerns expressed by Deane and Gaudron JJ (Banovic, 176) that discrimination legislation operates with respect to unconscious acts and that it is not necessary that there be a conscious appreciation, on the part of the discriminator, of their actions. Accepting this, it is not apparent that a search for the true reason would limit the application of the legislation. A statement by their Honours appears to accept that this is the proper enquiry (at 176-177):

“And there may be other situations in which habits of thought and preconceptions may so affect an individual’s perception of persons with particular characteristics that genuinely assigned reasons for an act or decision may, in fact, mask the true basis for that act or decision. Thus, in the ascertainment of the true basis of an act or decision it may well be significant that there is some factor, other than the ground assigned, which is common to all who are adversely affected by that act or decision. In certain situations that common factor may well be seen to be the true basis of the act or decision. And that may also be the case where some factor is identified as common to a significant proportion of those adversely affected.”

24    In my respectful view the approach taken by McHugh J gives meaning to words such as “on the ground of” and “because of”. The need to have regard to the plain words of the sections was discussed in some detail by Lockhart J in Human Rights and Equal Opportunity Commission v Mt Isa Mines Ltd (1993) 46 FCR 301, 322. Beyond that the matter is one of factual enquiry.

25    In Australian Medical Council v Wilson & Ors (1996) 68 FCR 46, 58 (Full Court) Heerey J referred to the judgment of Doyle CJ in Aboriginal Legal Rights Movement v State of South Australia (1995) 64 SASR 551, 553 where his Honour held that the enquiry under s 9 RDA:

“… is into whether the racial distinction is a material factor in the making of the relevant decision or the performing of the relevant act.”

26    I do not understand this view to be contrary to that of McHugh J. Whilst Doyle CJ had said that it did not mean that the inquiry is one as to motive, his Honour later refers to the question whether race is exposed “as the true basis of the decision”.

27    I should add that Lockhart J in Human Rights and Equal Opportunity Commission v Mt Isa Mines (321-2) equated the words “by reason of” with “because of”, “due to”, “based on”, “or words of similar import which bring something about or cause it to occur”; although it seems to me that “because of” perhaps marks out the causal requirement more clearly. I am aware that Weinberg J in Macedonian Teachers’ Association of Victoria Inc v Human Rights and Equal Opportunity Commission (1998) 91 FCR 8, 30 has expressed the view that “based on” in s 9(1) RDA encompasses a broader, and perhaps a non-causative relationship, but it is not necessary for me to deal with that question further here (and see also Australian Medical Council v Wilson).

28    In the present case the question is whether anything suggests race as a factor in the respondent’s decision to publish the photograph. ...

(Footnotes omitted.)

13    Clearly, the process to be undertaken in considering both s 18C(1)(a) and s 18C(1)(b) is evaluative. In that sense, minds may differ concerning the likely effect of relevant conduct, and as to whether such conduct was done because of the race, colour, or national or ethnic origin of a particular person or group of people.

HISTORY OF THE PROCEEDINGS

14    As I have said, the proceedings below were commenced on 23 October 2015. Ms Prior delivered points of claim on 14 January 2016. By applications dated 10, 15 and 18 February 2016, Messrs Thwaites, Wood and Powell respectively applied to have the proceedings against each of them dismissed or stayed. Concerning the state of the matter at the time of the hearing of those applications, the primary Judge said:

9.    Mr Wood, Mr [Powell] and Mr Thwaites have each filed defences to Ms Prior’s application. They each take many points in answer to Ms Prior’s claims. For the purposes of these summary dismissal applications, however, they do not rely on each of the matters they have raised by way of defence.

10    On 2 March, 2016 Ms Prior filed an affidavit sworn by her. That affidavit comprises the evidence-in-chief upon which she intends to rely at the trial of these proceedings and was filed in accordance with the Court’s directions. The applicant did not rely upon that affidavit at the hearing of the summary dismissal applications. Rather, she relied upon an affidavit by her solicitor filed on 4 March, 2016 and an affidavit by the third respondent filed on 7 March, 2016.

11.    Mr Wood has filed his affidavit of evidence-in-chief. He does not deny posting the messages to the “QUT Stalker Space” Facebook page that Ms Prior alleges that he posted.

12.    Mr Powell has filed his affidavit of evidence-in-chief. He does not deny posting the messages to the “QUT Stalker Space” Facebook page that Ms Prior alleges that he posted. He takes issue with the timing of those posts attributed by Ms Prior, but nothing seemingly turns upon that.

13.    Mr Thwaites has filed his affidavit of evidence-in-chief. He denies posting the messages to the “QUT Stalker Space” Facebook page that Ms Prior attributes to him. His case is, amongst other matters, that another person has posted the relevant message pretending to be him.

15    At paras [14]-[17] his Honour summarized the basis upon which Messrs Wood, Powell and Thwaites sought to have Ms Prior’s claim dismissed or stayed as follows:

14.    Mr Wood seeks to have Ms Prior’s proceeding against him stayed or dismissed on the basis that Ms Prior’s claim for relief against him has no reasonable prospect of success or alternatively, on the basis that:

a.    the proceeding or claim for relief is frivolous or vexatious; or

b.    the proceeding or claim for relief is an abuse of the process of the Court.

15.    He seeks relief pursuant to rule 13.10 of the Federal Circuit Court Rules 2001. In the further alternative, he argues that Ms Prior’s amended points of claim filed on 14 January 2016 be struck out, with leave for her to replead her case. In his written submissions, Mr Wood poses eight questions that arise in the context of his application, but in my view they can be conveniently summarised into four propositions for which he contends, namely

a.    Ms Prior does not have any reasonable prospect of successfully prosecuting the proceeding because Mr Wood’s Facebook statement:

i.    is not reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate her or the groups she nominates in her amended points of claim; and

ii.    was not published because of the race, colour or national or ethnic origin of Ms Prior or of some or all of the people in the groups nominated by her.

b.    Ms Prior does not have any reasonable prospect of successfully prosecuting the proceeding on the basis that Mr Wood’s Facebook statement was made in circumstances which engage s.18D of the of the Racial Discrimination Act.

c.    Ms Prior’s proceeding against him is frivolous or vexatious; and

d.    Ms Prior’s proceeding against him is an abuse of process.

16.    Mr Powell contends that Ms Prior’s proceedings against him should be summarily dismissed for three reasons, namely:

a.    there is no arguable case that the words published by Mr Powell were reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate the members of either of the “groups” identified by Ms Prior in subparagraph 46(b) of her amended points of claim;

b.    there is no arguable case that Mr Powell posted those words “because of the race, colour or national or ethnic origin” of the “group” identified in subparagraph 46(c) of the amended points of claim; and

c.    there is no arguable case to negate the exemption under section 18D of the Act.

17.    Mr Thwaites contends that he has simply no case to answer. It is alleged that he posted the words “ITT Niggers” to the QUT Stalker Space Facebook page. He denies that he posted those words, or indeed, any words at all. In circumstances where Ms Prior has filed all the evidence-in-chief upon which she intends to rely at the trial of these proceedings and Mr Thwaites contends that she produces no evidence at all that establishes that he published the relevant post, he says her claim against him should be dismissed without the necessity for a trial.

SUMMARY JUDGMENT

16    Pursuant to s 17A of the Federal Circuit Court of Australia Act 1999 (Cth) (the “Circuit Court Act”), the Circuit Court may give judgment in favour of a respondent if the Court is satisfied that the applicant has no reasonable prospect of success in the proceedings. Such a judgment is called a “summary judgment” to distinguish it from a judgment given after a full hearing. Rule 13.10 of the Federal Circuit Court Rules 2001 provides that the Circuit Court may stay or dismiss proceedings if it is satisfied that the applicant has no reasonable prospect of success, the claim is frivolous or vexatious, or the claim is an abuse of process. Obviously, the operation of this rule goes beyond the circumstances contemplated by s 17A. In these proceedings, the primary Judge ordered that the proceedings be dismissed as against each respondent pursuant to r 13.10(a), that is, upon the basis contemplated by s 17A(2) of the Circuit Court Act.

17    As I have said, summary judgment involves the disposal of proceedings without a full trial. Such proceedings, in one form or another, have been available for many years and in most courts. In the Federal Court of Australia Act 1976 (Cth) (the “Federal Court Act”), there are similar provisions to those contained in s 17A of the Circuit Court Act. They are contained in s 31A, which provision was considered by the High Court in Spencer v The Commonwealth (2010) 241 CLR 118 at [51]-[56]. The majority (Hayne, Crennan, Kiefel and Bell JJ) discussed tests which have been adopted in connection with other summary judgment regimes. Their Honours made it clear that judgment may be granted pursuant to s 31A even if it could not be said that the case was so clearly untenable that it could not possibly succeed. Their Honours said at [58]-[60]:

58    How then should the expression "no reasonable prospect" be understood? No paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content. Nor can the expression usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it cannot be said that there is "no reasonable prospect". The judicial creation of a lexicon of words or phrases intended to capture the operation of a particular statutory phrase like "no reasonable prospect" is to be avoided. Consideration of the difficulties that bedevilled the proviso to common form criminal appeal statutes, as a result of judicial glossing of the relevant statutory expression, provides the clearest example of the dangers that attend any such attempt.

59        In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like "clearly", "manifestly" or "obviously") as "frivolous", "untenable", "groundless" or "faulty". But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word "reasonable", in the phrase "no reasonable prospect", be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a "frivolous", "untenable", "groundless" or "faulty" claim.

60        Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is "no reasonable prospect" of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to "no reasonable prospect" can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase "just and equitable" when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.

(Footnotes omitted.)

18    In Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372, Gordon J identified six principles said to guide the exercise of the power to grant summary judgment pursuant to the Federal Court Act. First, at [124] her Honour noted that, s 31A prescribes a less stringent test for the grant of summary judgment than those applicable under earlier regimes. Her Honour was there making the point which is addressed in the passage from the judgment in Spencer to which I have referred above. Gordon J observed that Parliament’s purpose, in enacting the section, was to strengthen the Court’s power to dispose of unmeritorious matters, and to strengthen the Court’s power to manage proceedings, thus assisting in reducing cost and delay.

19    Secondly, her Honour said at [126], concerning an application for summary judgment (by a plaintiff or applicant), that the assessment of reasonable prospects involved the following steps:

1.    identification of the cause of action pleaded;

2.    identification of the pleaded facts said to give rise to that cause of action;

3.    a review of the evidence (if any) tendered in support of the claim for judgment;

4.    identification of the defence pleaded;

5.    identification of any facts pleaded which are said to give rise to the defence; and

6.    a review of the evidence (if any) tendered in defence of the claim.

20    These steps may readily be adapted so as to apply to a case in which a defendant or respondent seeks summary judgment against a plaintiff or applicant.

21    Thirdly, Gordon J noted that the moving party bears the onus of persuading the Court that the opponent has no reasonable prospect of success. However, once the moving party has established a prima facie case to that effect, the opposing party must respond by pointing to specific factual or evidentiary disputes which make a trial necessary. General denials will not be a sufficient basis for resisting summary judgment.

22    Fourthly, the decision to grant summary judgment is made as a question of law and reviewed as such by an appellate court. The word “may” is used in an “empowering” sense rather than as denoting the exercise of a discretion. Below, I say more about this matter.

23    Fifthly, where there is a real issue of fact relevant to a pleaded cause of action, it is unlikely that the proceedings will have no prospect of success.

24    Sixthly, in discerning whether a real issue of fact exists, the Court must draw all reasonable inferences in favour of the non-moving party.

the approach on appeal

25    In her Honour’s fourth point, Gordon J addressed the approach to an appeal against a decision granting summary judgment. As I understand it, when her Honour referred to the grant of such judgment as being a matter of law, she meant that it involved a decision, to which the decision-maker was led by a consideration of the facts and the law. Minds may differ as to the assessment of the evidence. However such a decision will reflect the relevant court’s view of the evidence and the application of the law to that evidence. That situation differs from cases in which a judge exercises a true discretion. That process involves a choice between available outcomes, based upon the judge’s assessment of the factors which, pursuant to the law creating the discretion, are relevant to its exercise. Gordon J meant that the grant or refusal of summary judgment fell into the former, and not the latter category.

26    In either case, the approach to any appeal will be that prescribed by the High Court in House v The King (1936) 55 CLR 499 per Dixon, Evatt and McTiernan JJ at 504-505 as follows:

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

THE PRIMARY JUDGE’S REASONS

27    His Honour directed himself as to the way in which he should deal with the applications and, at [28], observed:

There was some incongruity in the way in which the fourth, sixth and seventh respondents on the one hand and the applicant on the other hand, approached the present applications. The respondents’ approach was to invite the Court to consider all of the evidence relied upon by the parties in the present applications and to conclude that the applicant had no reasonable prospect of successfully prosecuting her claim. The applicant, on the other hand, seems to have approached the applications as applications to strike out her amended points of claim or have the proceedings dismissed on the basis that her pleading did not disclose a reasonable cause of action.

28    His Honour was, in effect, suggesting that Ms Prior’s approach was inconsistent with that taken in Spencer.

29    The primary Judge then set out the relevant parts of ss 18C and 18D and identified a number of propositions by reference to the cases. I should say that for the purposes of this application, the respondents do not rely upon s 18D. There may well be an argument that ss 18C and 18D must be read together, not separately. See Sutherland Shire Council v Folkes (2015) 331 ALR 494 at [49]-[53]. At [32] his Honour observed:

The two common arguments raised by both Mr Wood and Mr Powell are that:

a.    the words attributed to each of them in their Facebook posts are not reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate Ms Prior or the groups of people identified by her in her amended points of claim; and

b.    in any event there is no causal connection between the words published by each of them and of the race, colour or national or ethnic origin of either Ms Prior or the groups of people nominated by her in her amended points of claim.

30    His Honour observed at [37]-[41]:

37.    ... The task of the Court in a case of group offence is to identify a hypothetical representative of the group or groups to whom it was suggested the impugned conduct was directed: Eatock v Bolt at [250] and the authorities there cited. The Court must carry out the necessary assessment by reference to that hypothetical representative. Where it is alleged that the impugned conduct is directed at both an identified person and a group of people and the claim made is that both the identified person and the group of people were reasonably likely to have been offended, the conduct should be analysed from the point of view of a hypothetical representative of the group of people and in relation to each of the identified persons where a personal offence claim has been made.

38.    As cases like Creek v Cairns Post, Eatock v Bolt and Clarke v Nationwide News (above) demonstrate, where a group offence claim is made, it is the task of the Court to formulate the characteristics of the hypothetical representative of the group or groups concerned. No party addressed me on that matter. No party suggested what characteristics might attend a hypothetical representative of the groups identified by Ms Prior in her amended points of claim. Contrary to the position taken by the submissions for Mr Powell and Mr Wood, for her to succeed in her claim, it would be sufficient for Ms Prior to prove that the impugned words were reasonably likely in all of the circumstances to offend, insult, humiliate or intimidate a hypothetical representative of one or other of the groups she has identified.

39.    Moreover, the necessary assessment is not to be carried out by reference to “an objective application of community standards”. That approach was expressly rejected by Bromberg J in Eatock v Bolt at [253]:

It is the values, standards and other circumstances of the person or group of people to whom s 18C(1)(a) refers that will bear upon the likely reaction of those persons to the act in question. It is the reaction from their perspective which is to be assessed ... . Further, to import general community standards into the test of the reasonable likelihood of offence runs a risk of reinforcing the prevailing level of prejudice. To do that would be antithetical to the promotional purposes of Part IIA. Such an approach has been rejected in relation to sexual harassment ... . Sexual harassment legislation is the arena from which the words “offend, insult, humiliate or intimidate” were deliberately borrowed ... .

40.    The real issue for determination is whether Ms Prior has reasonable prospects of prosecuting her claim that the impugned words were reasonably likely to have the proscribed effect contended for by her. The submissions made by senior counsel for Mr Powell emphasise the point that Ms Prior has not filed any evidence to the effect that anyone was actually offended, insulted, humiliated or intimidated by Mr Powell’s words. In that circumstance, Mr Powell argues that the absence of evidence that anyone was actually offended, insulted, humiliated or intimidated is “a compelling reason to assume that this was not a “reasonably likely” outcome”.

41.    But when considering whether the impugned conduct might be regarded as reasonably likely to contravene the prescription of s. 18C(1)(a), what the applicant felt, in response to the conduct, is not relevant: Creek v Cairns Post at [12]. Indeed, evidence that someone was offended, insulted, humiliated, or intimidated by the relevant conduct is entirely unnecessary: Eatock v Bolt (above) at [241] and authorities there cited. In my view, the absence of evidence to that effect cannot be, either as a matter of law, “a compelling reason to assume that [the proscribed effect] was not a “reasonably likely” outcome”.

31    The primary Judge then considered the separate cases against Messrs Wood and Powell.

Mr Wood

32    Mr Wood’s post was the first in the thread set out in exhibit 1 below. It reads as follows:

Just got kicked out of the unsigned Indigenous computer room. QUT stopping segregation with segregation ... ?".

33    The primary Judge considered that the first sentence was factually accurate and unlikely to infringe s 18C(1)(a), whilst the second sentence was a statement of opinion “arguably posed as a question”. Whilst the primary Judge considered that the word “segregation” had negative connotations, he considered that such negativity was directed towards QUT. At para 45 his Honour said:

Taken together the two sentences carry a negative connotation with a racial undertone that derives from the propositions carried within the sentences that QUT has a computer room from which people who are not indigenous are excluded by reason of their race or ethnicity.

34    The primary Judge then dismissed a number of submissions made by Mr Wood and Mr Powell. His Honour noted that Ms Prior advanced both “a personal offence claim” and a “group offence claim”. I understand his Honour to have been using the term “offence” to include “insult”, “humiliation” and “intimidation”.

35    Ms Prior, by her points of claim, had claimed to be “a person” who was likely to have been offended by the various posts as contemplated by s 18C(1)(a). She identified two groups which were likely to have been so offended, namely:

    Aboriginal and Torres Strait Islander students of QUT (the “student group”); and

    Aboriginal and Torres Strait Islander people (the “wider group”).

36    Kiefel J had observed in Creek at [13], that a group description by reference to race alone may be too wide. In that case, the Court was concerned with Aboriginal people. Her Honour considered that Aboriginal views might differ, depending upon where a particular person lived, and the circumstances in which he or she lived. In the present case, at [46] his Honour seems to have concluded that a group comprising Aboriginal and Torres Strait Islander students of QUT was too broad to be adopted for the purposes of s 18C(1). I infer that his Honour considered that the identification of the wider group suffered from the same vice. His Honour observed that no party had suggested, “any perspective from which the impugned words might properly be considered”. I understand his Honour to have meant that no attempt had been made to describe the standpoint of a person in the position of Ms Prior or a representative of either identified group.

37    At [47]-[49] his Honour said:

47.    The facts and circumstances of each case in which it is alleged that s18C(1)(a) has been transgressed must guide the correct identification of the reasonable victim in each case Clarke v Nationwide News at [64]. But in every case, the hypothetical person or member of the relevant group from whose perspective the relevant conduct is to be considered will be a person who:

a.    exhibits characteristics consistent with what might be expected of a member of a free and tolerant society Eatock v Bolt at [255]; Clarke v Nationwide News at [59];

b.    meets the description of an ordinary or reasonable member or members of the identified group. “That is so because a group of people may include the “sensitive as well as the insensitive, the passionate and the dispassionate, the emotional and the impassive”. For that reason it is necessary to consider only the perspective of the ordinary or reasonable member or members of the group, not those at the margins of the group whose view may be considered unrepresentative.” Eatock v Bolt at [251] and Clarke v Nationwide News at [62].

48.    All the parties before me emphasise that the relevant assessment needs to be undertaken in light of all of the circumstances, including the social, cultural, historical and other circumstances attending the person or the people in the relevant group. However, beyond the factual matters that I have described at the commencement of these reasons and having regard to the course of the Facebook posts, set out in exhibit 1 in these proceedings, no party, particularly Ms Prior suggested that there were, or was likely to be, any other relevant circumstances that would inform the relevant assessment.

49    In my view, it is not reasonably likely that a hypothetical person in the position of the applicant, or a hypothetical member of the groups identified by Ms Prior who is a reasonable and ordinary member of either of the groups who exhibits characteristics consistent with what might be expected of a member of a free and tolerant society and who is not at the margins of those groups would feel offended, insulted, humiliated or intimidated by Mr Woods words. This is so because:

a.    Mr Wood’s words were directed to QUT and its actions; and

b.    Mr Wood’s words were rallying against racial discrimination.

38    As I understand this conclusion, it is based upon the assumptions made by his Honour at [47] (set out above), and the absence of any evidence as to the likely effect of the words on either a notional person in Ms Prior’s position (apart from her evidence as to her own reaction) or on a notional representative of either group.

39    At a later stage I shall say something about the proposition that any relevant group for the purposes of s 18C(1), should exhibit, “characteristics consistent with what might be expected of a member of a free and tolerant society”.

40    The primary Judge then considered the operation of s 18C(1)(b), concluding that the reasons for the post were those identified by Mr Wood in his evidence. His Honour sets out such evidence at [51] as follows:

51.    On 15 February, 2016 Mr Wood filed an affidavit deposed by himself in which he sets out the reasons for his Facebook post. In that affidavit, he gives three reasons for his Facebook post, namely:

a.    his moral abhorrence to racial discrimination and his concern that “racial segregation was policy administered on the campus of my university”;

b.    his concern that his HECS fees were being applied to provide a facility which excluded particular racial or ethnic groups from using; and

c.    his concern that the first respondent’s policy impacts upon the opportunity for interaction between students from different backgrounds which he considered to be invaluable and an important aspect of his university education.

41    His Honour also noted that Mr Wood had sworn that he had not known of Ms Prior’s race or ethnicity. I am not sure that this proposition is supported by the evidence, but it seems that the case was conducted on that basis.

42    His Honour concluded that in the absence of any evidence to the contrary, Mr Wood’s sworn evidence established a prima facie case for granting summary judgment. His Honour also concluded that even if the post was “capable of being seen as offensive or insulting, or amounting to humiliation or intimidation”, it could not amount to more than a “mere slight” and was thereafter not capable of constituting the conduct described in s 18C(1)(a).

43    This view seems to have been derived from, but may misstate the words used by Kiefel J in Creek at [16]. Her Honour did not mean that conduct found to be offensive, insulting, humiliating or intimidating might be dismissed as a “mere slight”. Rather, her Honour meant that a mere slight could not reasonably have an offensive, insulting, humiliating or intimidating effect. In any event, his Honour clearly understood that conduct which was a “mere slight” would not engage s 18C. In any event, Ms Prior does not suggest that she wishes to appeal on that basis.

44    At [58] the primary Judge concluded that Mr Wood had established that Ms Prior had no reasonable prospect of success against him.

Mr Powell

45    As may be seen from exhibit 1 below, there was another post by Mr Wood upon which Ms Prior does not directly rely. There were a number of posts by other persons whose names have been redacted. Some of those posts were arguably racist. None was particularly insightful. Mr Powell then posted:

I wonder where the white supremacist computer lab is ...

46    Mr Powell made three further posts upon which Ms Prior does not rely. I need not set out their contents. Mr Powell’s next relevant post reads, in context, as follows:

... [author redacted] By the logic in this thread: University is also a club with inclusion/exclusion criteria. Therefore you’re all a bunch of segregationists.

...

By ... [author redacted] logic its also fine to start a KKK Klub ...

...

Jackson Powell Michael McGrath, it’s white supremacist, get it right. We don’t like to be affiliated with those hill-billies.

...

47    Later posts addressed arguments for and against the provision of facilities for discrete groups. In the course of those posts Mr Powell posted a further statement upon which Ms Prior does not rely. It is, in any event, incomprehensible. Other posts followed, including the following:

... [author redacted] We need a room strictly for white males, so I can wear my fedora and wallet chain without being mocked. I’m being oppressed here!

Mr Powell then posted:

... today’s your lucky day, join the white supremacist group and we’ll take care of your every need.

...

48    At [62] his Honour explained the term “white supremacist” as follows:

The reference in each of those posts to “white supremacist” is plainly a reference to a racist ideology that promotes the belief that “white” people are superior to people of other racial backgrounds and that “white” people should politically, economically and socially rule people of other racial backgrounds. To ordinary and reasonable members of a free and tolerant society such an idea is plainly offensive and insulting.

49    The primary Judge correctly observed that “words and concepts” which are ordinarily insulting or offensive may not engage s 18C(1)(a) if the circumstances in which such words and concepts are such that they are not reasonably likely to offend, insult, humiliate or intimidate “in the way envisaged by that subsection”. The reference to the word “envisaged” is, I infer, a reference to the observations by Kiefel J in Creek at [16], as set out above. The primary Judge concluded that the relevant posts were, “a poor attempt at humour”, which may have been in “bad taste”, or which, “could potentially be regarded as distasteful by some persons”. However his Honour concluded that it was not reasonably likely that a person in Ms Prior’s position or that of a reasonable and ordinary member of either group would feel offended, insulted, humiliated or intimidated by Mr Powell’s conduct. His Honour considered that such person would exhibit characteristics consistent with those which might be expected of, “a member of a free and tolerant society and who is not at the margins of those groups”.

50    Having concluded that the posts would not offend, insult, humiliate or intimidate, his Honour focussed specifically upon the risk of intimidation. The notion of white supremacy, at face value, concerns questions of colour rather than race. However there can be no doubt that racial differences are very much part of it. Having acknowledged that the doctrine of white supremacy is plainly oppressive and insulting, his Honour concluded that in the present circumstances, use of that term was not intimidating.

51    His Honour then turned to s 18C(1)(b), pointing out that Ms Prior did not claim to have met Mr Powell, and that he had sworn that he had never met her. Mr Powell had also asserted that his posts were intended to express his disapproval of “racial or ethnic discrimination”, not of the fact that any student was of a “particular race, colour, or national or ethnic origin”. At [69] the primary Judge observed that there was no evidence which contradicted Mr Powell’s evidence. That proposition, it might be thought, overlooked any inferences available from his relevant conduct. However his Honour immediately made it clear that there was no such oversight. He said that Mr Powell’s evidence “near ties” any such inference. The words “near ties” can only be a typographical error, the intended word being “negatives”. His Honour also found that if the posts were capable of being seen as offensive or insulting or amounting to humiliation or intimidation, they could properly be described as mere slights. I have commented previously upon this line of reasoning. Again, Ms Prior does not seek to appeal on this basis. In those circumstances, his Honour concluded that Ms Prior had no reasonable prospect of success in prosecuting her claim against Mr Powell.

Mr Thwaites

52    In Mr Thwaites’ case no question presently arises as to whether the posting, allegedly made by him, contravened s 18C(1). The question before the Circuit Judge was whether Ms Prior had any reasonable prospect of proving that he posted the text. In support of his application for summary judgment, Mr Thwaites asserted by affidavit that:

    until December 2015, he had not seen any of the posts referred to by Ms Prior in her points of claim;

    he did not make the post as pleaded in the points of claim; and

    the relevant Facebook account was not his.

53    Mr Thwaites gave a reasonably detailed explanation as to the circumstances in which somebody else may have opened an account in his name and posted the relevant text. He had obviously made significant attempts to investigate the matter. Ms Prior seems not to have done so. She offered no evidence concerning the alleged authorship, pointing only to Mr Thwaites’ name and photograph on the relevant post. Counsel for Ms Prior conceded that she had no other evidence as to the authorship of the post, either at the time of the hearing below, or at the time of the hearing before me. Mr Thwaites contended that the post could not, itself, prove authorship.

54    At [73]-[79] his Honour said:

73.    In his affidavit filed on 11 February, 2016 Mr Thwaites deposes that he did not post the message. He descends into particularity in his evidence. He provides evidence that demonstrates, on a prima facie basis, that he did not post and could not have posted the relevant message.

74.    As senior counsel for Mr Thwaites concedes the fact that he deposes that he did not post the message attributed to him would not suffice to entitle him to summary dismissal of Ms Prior’s claim if there were any evidence to the contrary – however slight or tenuous, just so long as it was not demonstrably implausible or unreliable. However, as he points out, there is none.

75.    Ms Prior’s case rests solely on the fact that the name of Mr Thwaites is associated with the relevant message as its author and the inferences that might be drawn from that. But that fact that his name appears upon the post is not evidence of his authorship. Senior counsel for Mr Thwaites submits that in legal cognisance, the message posted in the name of Mr Thwaites is an unproved document, conceptually no different from a typescript letter with a typescript “signature”, or a document created by cutting letters from newspaper headlines and pasting them on a blank page. Until there is proof regarding the document’s true authorship, its contents have no probative value; and, for that very reason, one cannot prove the document’s authorship solely from the document itself. To put matters in a slightly different way: the issue is whether or not Mr Thwaites was responsible for the contents of the document. Until that is proved, the document is merely unsourced documentary hearsay, placed on the computer screen through the agency of Facebook. If it is proved that Mr Thwaites was responsible, then the document can be tendered against him. But the document, itself, cannot afford such proof, since its admissibility as an admission against interest depends on its authorship first being proved from another source.

76.    I accept those submissions.

77.    As I have already recorded, the authorities make it clear that, on an application like the present one, where the party seeking summary dismissal files evidence which would entitle that party to judgment, the onus shifts to the party resisting the application to adduce some evidence to the contrary. On the present application, Ms Prior has not adduced any evidence supporting her claim against Mr Thwaites. As senior counsel for Mr Thwaites points out, that failure has occurred in a context where Ms Prior was required to file her evidence in chief by 4:00pm on 1 March, 2016. She did so, but her legal representatives have chosen not to read any part of that evidence in chief on the hearing of the present application.

78.    There is no evidence that would put in contest the factual assertions made by Mr Thwaites.

79.    In my view he is entitled to summary dismissal of the claim made against him by Mr Prior.

THE PROCEDURE FOR COMMENCING AN APPEAL

55    Pursuant to s 24(1)(d) of the Federal Court Act, this Court has jurisdiction to hear appeals from judgments of the Circuit Court. Pursuant to s 4 of that Act, the word “judgment” means, relevantly:

a judgment, decree or order, whether final or interlocutory.

56    However, pursuant to s 24(1A) of the Federal Court Act, an appeal may only be brought from an interlocutory decision by leave of this Court, or a Judge of this Court. Section 24(1D)(ca) of the Federal Court Act provides that for presently relevant purposes, an order under s 17A of the Circuit Court Act is an interlocutory judgment. The decision under appeal was made pursuant to that section, and so Ms Prior requires leave to appeal against that judgment. Pursuant to r 35.13 of the Federal Court Rules 2011 such an application must be made within 14 days after the date on which the judgment was pronounced. Ms Prior failed to apply within that time. Rule 35.14 provides that she may seek an extension of time in which to apply for leave to appeal. Ms Prior now seeks such an extension of time. If that extension is granted, then she will seek leave to appeal. If the Court grants leave it will, at a later time, hear her appeal.

57    The process may seem complex, but it is designed to ensure that if there is to be any attempt to upset a decision, it is commenced promptly, and to exclude unmeritorious appeals.

extension of time

58    The relevant rules required that Ms Prior file any application for leave to appeal against the primary Judge’s decision within 14 days of 4 November 2016, that is on or before 18 November 2016. Her application for an extension of time was filed on 30 November 2016. The only explanation for the failure to file the application in time appears to have been that Ms Prior’s solicitor was not familiar with the relevant rules. Of course it is a solicitor’s duty to be familiar with such rules. A solicitor is not entitled to rely on casual remarks by the Court concerning time limits. Nor may a solicitor complain about accurate information provided by registry staff, if the solicitor misunderstands the way in which that information applies to the case in hand. Counsel for Ms Prior pointed to the relatively short time that had elapsed between the expiry of the relevant period and the filing of the application for an extension of time. None of the respondents asserts any prejudice resulting from the delay. However I accept the submission made by counsel for Messrs Powell and Thwaites that no real explanation has been offered for such delay, other than that of solicitor’s error.

59    Where there has been delay, the overall history of the matter may be important. I have already pointed out the delays between the occurrence of the conduct in question and the commencement of these proceedings. I should add that Mr Wood and Mr Thwaites only became aware of Ms Prior’s complaint in late July 2015. Mr Powell became aware of it in late August 2015. It seems that Ms Prior’s solicitor, QUT and the Commission all knew that the respondents had not previously been notified of the proceedings in the Commission. To say the least, it is surprising that those parties assumed that it was appropriate to proceed in that way. Although the respondents do not allege prejudice flowing from the delay in applying for leave to appeal, one cannot but wonder why they were so treated.

RELEVANT CONSIDERATIONS

60    In determining whether to grant leave to appeal, the Court will generally consider:

    whether in all the circumstances the relevant decision is attended by sufficient doubt to warrant its being considered by an appeal court; and

    whether substantial injustice would result if leave were refused, supposing the decision to be wrong.

61    The two considerations may overlap. Each case must be considered on its merits.

62    In considering whether to extend time in which to seek leave to appeal, the Court will consider whether there is sufficient prospect that leave to appeal would be granted as to warrant any such extension. Another consideration is whether there has been an adequate explanation for any period of delay in seeking leave to appeal. Where there has been minimal delay, an extension of time will generally be granted, unless any appeal would be hopeless. The Court will extend time only in order to do justice as between the parties.

PROPOSED grounds of appeal

63    In support of the application to extend time, Ms Prior identified the following proposed grounds of appeal:

1.    The learned primary Judge, in finding that the Facebook posts by [Mr Wood] were not reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate [the student group] erred in law in failing to consider whether the hypothetical representative of the [student group] may be offended, insulted, humiliated or intimidated by the contention by [Mr Wood] that the QUT should not provide them with the benefit of a special measure in the form of a designated computer laboratory.

2.    The learned primary judge erred in law in concluding that [Mr Wood] did not make the Facebook posts because of the race of [Ms Prior] or the [student group] based upon the subjective expression of the motive of [Mr Wood], when he should have found that the fact that the room is set apart for persons of a particular race is one of the reasons for the comments being published or that this was an issue that required a trial of the matter.

3.    The learned primary judge erred in law in concluding that [Mr Wood] did not make the Facebook posts because of the race of [Ms Prior] by taking into account the fact that [Mr Wood] did not know of [Ms Prior's] race, as evidence supporting the conclusion that the publication was not because of race, when the primary judge ought to have found that the publication was because of the setting aside of a space for the race group and therefore also because of the race of [Ms Prior] or ought to have found that this was an issue which required a trial of the matter.

4.    The learned primary judge erred in law by unreasonably concluding that the words published by [Mr Wood] and [Mr Powell] were not reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate a person in the position of [Ms Prior] or a hypothetical representative of the [student group] because he failed to [consider] the cumulative effect of the whole of the postings in Exhibit 1, including the postings of [Mr Wood] and [Mr Powell] upon a person in the position of [Ms Prior] or a hypothetical representative of the [student group].

5.    The learned primary judge erred in law in his conclusion that the words published, in the circumstances in which they were published by [Mr Wood] and [Mr Powell], did not have an intimidatory effect, in that he failed to consider, or demonstrate any consideration of, the effect upon the self-esteem or dignity of members of the [student group] the subject of the publication of the discussion of the idea that they should not be entitled to the benefit of a special measure in the form of the provision of a computer laboratory.

6.    The learned primary judge erred in law in arriving at an unreasonable conclusion, without an expressed basis, that references to segregation by [Mr Wood], in the context of a discussion about the entitlement of the [student group] to a designated computer room, was a mere slight, not amounting to humiliation or intimidation, when he should have concluded that it was humiliating and intimidating, in the sense of lowering self-esteem and demeaning the [student group].

7.    The learned primary judge erred in law by unreasonably concluding, without an expressed basis, that the reference to a white supremacist computer laboratory by [Mr Powell], in the context of a discussion about the entitlement of the [student group] to a designated computer room, was a mere slight, not amounting to humiliation or intimidation, when he should have concluded that it was humiliating and intimidating, in the sense of lowering self-esteem and demeaning to the [student group], and was aggravated, rather than diminished, by a characterization of the words as having an element of humour.

8.    The learned primary judge erred in law by unreasonably concluding that the evidence demonstrates, on a prima facie basis that [Mr Thwaites] did not post and could not have posted the relevant message insofar as stating that the fact his name appear upon the post is not evidence of his authorship when he should have concluded that [Mr Thwaites'] image also appears in relation to the authorship of that post and the image attributed to Mr Thwaites bears a Facebook "tag" in his name and account.

9.    The learned primary judge, in refusing to grant [Ms Prior] leave to cross-examine [Mr Thwaites], allowed and relied upon his unchallenged and untested evidence notwithstanding that [Ms Prior] made an application to cross-examine [Mr Thwaites] on the veracity of his affidavit material and therefore erred in failing to allow cross-examination of [Mr Thwaites].

10.    In circumstances of the concession by Senior Counsel for [Mr Thwaites] recorded at paragraph 74 of the reasons for decision of the learned primary judge, his Honour erred in failing to allow [Ms Prior] to cross-examine [Mr Thwaites].

11.    His Honour erred in stating that "Ms Prior's case rests solely on the fact that the name of Mr Thwaites is associated with the relevant message as its author and the inferences that might be drawn for that" because Ms Prior’s case was that the fact that [Mr Thwaites’] photo accompanied his name identifying the Facebook account as belonging to him.

12.    The learned primary judge erred in granting summary dismissal to [Mr Thwaites] in the context of accepting Counsel for [Mr Thwaites'] submissions that "if it is proved that Mr Thwaites was responsible, then the document can be tendered against him," at paragraph 77 of his reasons for decision because the submission demonstrates that the case is not one for summary dismissal but required a trial.

64    In her submissions before me, counsel for Ms Prior advanced three further grounds of appeal. I must consider each ground in order to determine whether any of them raises sufficient doubt about the correctness of the judgment as to justify the grant of leave to appeal, and therefore to grant an extension of time in which to seek such leave.

PROSPECT OF SUCCESS

Mr Thwaites

65    In view of the peculiar nature of Mr Thwaites’ case, I shall deal with his application before dealing with those of Messrs Wood and Powell. In order to do so, I must say something about the conduct of the proceedings at first instance. I may, in some respects, seem to be critical of both the primary Judge and counsel. However the case raised somewhat unusual issues and had received wide publicity, matters which frequently cause problems for judges and counsel. Unfortunately, communications between the legal advisers seem to have become somewhat strained. Further, the primary Judge was apparently under the pressure of other court commitments.

66    In her points of claim Ms Prior pleads against Mr Thwaites:

One hour after the Computer Lab Incident, information was posted on a Facebook page called "QUT Stalker Space" ("Stalker Space") regarding the Computer Lab Incident:

(a)    a post by [Mr Wood], stated "Just got kicked out of the unsigned Indigenous computer room. QUT stopping segregation with segregation".

(b)    [Mr Powell], posted the following:

(i)    "I wonder where the white supremacist computer lab is"

(ii)    (in response to a post) it’s white supremacist, get it right. We don’t like to be affiliated with those hill-billies.

(d)    [Mr Thwaites], posted "ITT niggers".

67    Mr Thwaites filed a "response" to Ms Prior’s points of claim, asserting that:

I did not make the comment alleged in the application. I expressed this to the applicant during conciliation and to Mary Kelly in 2013 via email.

68    Ms Kelly, an employee of QUT, is also a respondent in the substantive proceedings, but not in the present application. In support of his application for summary judgment dismissing Ms Prior’s application, Mr Thwaites filed an affidavit. In his affidavit, he denied having made the post, asserted that the Facebook account was “impersonating” him, and provided evidence concerning the possible way in which somebody else may have set up a Facebook page using his name and photograph. He also made it clear that he had, on the day in question in 2013, told Ms Kelly that he was not the author of the post.

69    Although, by the time of the hearing below, Ms Prior had filed the evidence upon which she proposed to rely at any trial, none of that evidence was read in opposition to the summary judgment application. Rather, Ms Prior relied upon affidavits by her solicitor, Ms Moriarty, and an affidavit by Ms Hong, another employee of QUT and also a respondent in the substantive proceedings, but not in the present application. Ms Hong’s affidavit is not relevant with reference to Mr Thwaites’ case. Ms Moriarty’s affidavits exhibit correspondence between legal advisers, apparently primarily concerning the conduct of the matter during, and after proceedings in the Commission.

70    Mr Thwaites’ case, both below and on appeal, has been that the existence of the post itself was not evidence of his authorship. Ms Prior seems not to have contradicted that assertion at any time prior to her filing supplementary submissions in response to a matter which I raised with the parties after the hearing of the present application. In her written submissions at first instance counsel for Ms Prior submitted that Mr Thwaites, “maintains that he is not the person who posted the offensive words ...”. Counsel further submitted that Mr Thwaites’ counsel opposed cross-examination of him on the basis that Ms Prior had filed no evidence going to the question of authorship, and that there should therefore be no cross-examination of Mr Thwaites. Counsel for Ms Prior submitted that Mr Thwaites had to be cross-examined on his affidavit in order to, “understand what he was saying and what he was not saying”. She further suggested that he should be cross-examined about the steps which he had taken to report the alleged impersonation. Later in these reasons, I shall deal with the question of cross-examination. In the end, there was no cross-examination.

71    Counsel for Ms Prior did not in the proceedings below, assert that the post was, itself, proof of Mr Thwaites’ authorship. The primary Judge concluded that the content of the post did not prove that Mr Thwaites was the author.

72    Proposed grounds of appeal 8-12 deal with the case as against Mr Thwaites. Proposed grounds 8-11 seem to raise only two criticisms of his Honour’s reasons, namely:

    that his Honour failed to consider the fact that Mr Thwaites’ photograph, as well as his name, appeared on the post; and

    that his Honour had not permitted cross-examination of Mr Thwaites.

73    Proposed ground 12 is more difficult to understand. Ms Prior seems to be asserting that in some way, his Honour had accepted that she might be able to prove authorship at trial, and that such acceptance should have led to dismissal of the application for summary judgment. The submission relates to his Honour’s reasons at [75]-[77]. In my view, at [75] his Honour was explaining the need for proof of authorship before the post could be received as evidence against Mr Thwaites, and that there was no such evidence. At [77] his Honour was pointing out that at that point in time, Ms Prior had filed her evidence at trial. In opposing the summary judgment application, she had not relied on that evidence, thus clearly demonstrating that it would not have assisted in such resistance. In those circumstances, it followed that the application for summary judgment should have succeeded.

74    In any event, in her written submissions before me, at paras 81-82, Ms Prior submitted:

81.    The Grounds 8 to 12 are better pleaded as a single ground, as follows:

The primary Judge erred in law by failing to properly address the question of whether there was a real issue of fact to be decided upon which the rights of Prior against Callum Thwaites depended, which it was appropriate to decide at a trial, in circumstances where -

(a)    the applicant claimed that Thwaites had published, by posting on Facebook, the words "ITT Niggers", on the basis that such a publication occurred connected to a Facebook account with the name and image of Thwaites;

(b)    Thwaites provided affidavit evidence denying authorship of the publication;

(c)    an application to cross-examine Thwaites was not granted, or was not proceeded with, on the basis that the application was one for summary judgment; and

(d)    The applicant had, prior to the primary judge arriving at his decision, filed an application for a subpoena seeking evidence from the publisher of Facebook as to the authorship of that which was yet to be determined by the Court.

82.    His Honour referred to Spencer v Commonwealth and noted, referring to the joint majority judgement, that "where there are real issues of fact and/or law to be decided upon which the rights of the parties depend, it is generally appropriate that the matter go to trial".

(Footnotes omitted.)

75    I shall deal separately with the issues concerning cross-examination and the subpoena.

The Evidence Act

76    At first instance and on the present application, Mr Thwaites has consistently argued that the post does not, without more, prove that he was its author. He submitted that such authorship could only be proven by other evidence. This proposition appears to have been substantially based on common law rules concerning the proof of documents and the hearsay rule. In the course of considering the matter I became concerned that at first instance, the probative value of the post may have been determined without reference to potentially relevant sections of the Evidence Act 1995 (Cth) (the “Evidence Act”), particularly ss 71 and 75. Hence I sought further submissions on the matter. I also asked for submissions as to whether, given her conduct of the proceedings at first instance, Ms Prior could now rely on any such provisions. As I have said, Ms Prior seems not to have previously asserted that the post was evidence of authorship, although she had submitted that it was, in effect, the basis of her claim.

77    With the benefit of counsels’ submissions I have come to the conclusion that s 75 is not engaged, simply because the “source” has not been identified. In Levis v McDonald (1997) 75 FCR 36 at 43, Lindgren J proceeded upon the basis that a source must be identified in order to engage that section. In Registrar of Aboriginal Corporations v Murnkurni Women’s Aboriginal Corporation (1995) 137 ALR 404 at 413, Nicholson J considered that it was insufficient to identify the source as being the Australian Federal Police. Presumably his Honour considered that the deponent must identify as the source, a person or, perhaps, an admissible document. In De Bortoli Wines Pty Ltd v HIH Insurance Ltd (in liq) (2011) 200 FCR 253 at [39]-[41], Stone J accepted those cases as correctly identifying the requirement that the source be identified. Her Honour considered that the decision in Proctor & Gamble Australia Pty Limited v Medical Research Pty Ltd [2001] NSWSC 183 was to different effect. As I understand that case, a number of persons had been identified as possible sources. Hunter J considered that the requirements of the New South Wales version of s 75 had thus been satisfied. That is not the present case. In her supplementary submissions, Ms Prior does not really address this question.

78    Exhibit 1 below is, in so sense, Mr Thwaites’ document. It was presumably printed out for the purposes of these proceedings. Mr Thwaites’ alleged conduct was entering the post “ITT niggers” into his computer and sending it to the relevant Facebook page, all of which conduct was performed by the utilization of electronic means. The effect was to store the words in an electronic form, capable of being read on a computer screen by anybody who was able to access the page, and capable of being reduced to printed form. Exhibit 1 below is in the nature of real evidence in the sense in which that term is used to describe such things as photographs and tape recordings. See JD Heydon, Cross on Evidence (10th ed) at [1270]-[1330]. As the learned author observes at [1275], real evidence is frequently of little value, unless it is accompanied by testimony, identifying it as the object, the qualities of which are in issue or relevant to that issue. Thus, for example, the provenance of a photograph or a tape recording must be established. If a document is to be tendered in evidence against a party as being his or her document, there must be evidence which establishes that fact. Section 71 of the Evidence Act does not make a representation admissible if it is contained in an electronic communication. The section operates only to take it out of the area of operation of the hearsay rule as defined in the Evidence Act.

79    In my view, neither the printed version of the post, nor the electronic form in which it exists says anything more than that somebody has posted the relevant statement, claiming to be Calum Thwaites. If it is to be used in either form as evidence against Mr Thwaites, it must be proven that he was the author.

80    In the primary Judge’s reasons at [75]-[78], his Honour accepted Mr Thwaites’ submission that the post could not prove authorship. As I have said, neither in the draft grounds of appeal nor in Ms Prior’s initial written submissions before me was there any suggestion that his Honour had erred in law in accepting such submission. It was only after I had drawn attention to the possible relevance of the Evidence Act that counsel for Ms Prior asserted that there had been, at first instance, an assertion that the post was probative of authorship, and that the operation of the Evidence Act had been the (tacit) subject of submissions. Having considered the transcript, the written submissions at first instance, the draft grounds of appeal and Ms Prior’s submissions dated 14 December 2016 in these proceedings, I am satisfied that neither matter was advanced at first instance, nor at any time prior to my raising the issue.

81    Having regard to the supplementary submissions made by the parties and a more careful consideration of the Evidence Act, including the meaning of the term “electronic communication” in the Electronic Transactions Act 1999 (Cth) (the “ET Act”), I have concluded that the matter is more complex than I had initially thought. I should explain my reasons for this view.

82    The term “electronic communication”, according to the dictionary forming part of the Evidence Act, is that found in the ET Act. In s 5 of the Act, the term is defined as:

(a)    a communication of information in the form of data, text or images by means of guided and/or unguided electromagnetic energy; or

(b)    a communication of information in the form of speech by means of guided and/or unguided electromagnetic energy, where the speech is processed at its destination by an automated voice recognition system.

83    It seems to me that in order to engage s 71 of the Evidence Act, it would have to be proven that the “document” referred to in s 71 was a record of an electronic communication. There is no evidence of that matter. However it seems probable that the case was conducted upon the basis that exhibit 1 below was a record of a Facebook post which post was, I infer, an electronic communication. The word “document” is sufficiently widely defined in the dictionary. I also note that ss 170 and 171 of the Evidence Act contemplate proof of some aspect or aspects of s 71, presumably the fact that the relevant document actually records an electronic communication. As I have said that matter seems not to have been in dispute at the hearing below.

84    Section 15 of the ET Act may also be relevant. It provides:

Attribution of electronic communications

(1)    For the purposes of a law of the Commonwealth, unless otherwise agreed between the purported originator and the addressee of an electronic communication, the purported originator of the electronic communication is bound by that communication only if the communication was sent by the purported originator or with the authority of the purported originator.

(2)    Subsection (1) is not intended to affect the operation of a law (whether written or unwritten) that makes provision for:

(a)    conduct engaged in by a person within the scope of the person’s actual or apparent authority to be attributed to another person; or

(b)    a person to be bound by conduct engaged in by another person within the scope of the other person’s actual or apparent authority.

Certain provisions of the Evidence Act 1995 etc. not affected

(5)    This section does not affect the operation of:

(a)    section 87 or 88 of the Evidence Act 1995; or

(b)    a law of a State or Territory that corresponds to section 87 or 88 of the Evidence Act 1995; or

(c)    a law of a State or Territory, or a rule of common law, that provides for a statement made by a person to be treated as an admission made by a party to a proceeding in a court.

85    The word “attribution” in the heading may well inform the meaning of the word “bound” in s 15(1). If so it would seem that the evidentiary effect of s 71 is not to prove the truth of any representation as to authorship, at least in the absence of any agreement of the kind identified in s 15(1). Section 88 of the Evidence Act may also be relevant. It provides:

For the purpose of determining whether evidence of an admission is admissible, the court is to find that a particular person made the admission if it is reasonably open to find that he or she made the admission.

86    Although exhibit 1 below was received into evidence, it is clear that there was a dispute as to its relevance to the question of authorship. Section 88 seems to provide that such evidence will be admissible if it is reasonably open to the Court to find that the relevant person was the author. In the present case, exhibit 1 below would be receivable as an admission only if the Court considered that it was reasonably open to find that Mr Thwaites was the author. In other words the matter for proof in order to establish admissibility was the matter for ultimate determination in the proceedings. His Honour was not invited to make any finding as to whether it was reasonably open to him to find that Mr Thwaites had made the admission.

87    It is difficult to know how proceedings would have been conducted had the Evidence Act been invoked. In light of s 88, it is difficult to see that the primary Judge could have proceeded on any other basis than that on which he did. I should add that the term “admission” is defined in the Evidence Act dictionary as follows:

admission means a previous representation that is:

(a)    made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding); and

(b)    adverse to the person’s interest in the outcome of the proceeding.

88    At para 8 of Mr Thwaites’ written supplementary submissions, it is said that:

Accordingly, as to “whether the proceedings to date have been conducted upon the basis that the post is (or is not) evidence that Mr Thwaites was the originator of it”, the position is that:

(a)    the proceedings to date have been conducted upon the basis that the post is not admissible as direct evidence that Mr Thwaites was the originator of it;

(b)    however, it was consistently contended on behalf of Ms Prior that the post was admissible for the limited and specific purpose of supporting an inference that Mr Thwaites was the originator of it.

89    In the primary Judge’s reasons at [75] his Honour said:

Ms Prior’s case rests solely on the fact that the name of Mr Thwaites is associated with the relevant message as its author and the inferences that might be drawn from that. But that fact that his name appears upon the post is not evidence of his authorship. Senior counsel for Mr Thwaites submits that in legal cognisance, the message posted in the name of Mr Thwaites is an unproved document, conceptually no different from a typescript letter with a typescript “signature”, or a document created by cutting letters from newspaper headlines and pasting them on a blank page. Until there is proof regarding the document’s true authorship, its contents have no probative value; and, for that very reason, one cannot prove the document’s authorship solely from the document itself. To put matters in a slightly different way: the issue is whether or not Mr Thwaites was responsible for the contents of the document. Until that is proved, the document is merely unsourced documentary hearsay, placed on the computer screen through the agency of Facebook. If it is proved that Mr Thwaites was responsible, then the document can be tendered against him. But the document, itself, cannot afford such proof, since its admissibility as an admission against interest depends on its authorship first being proved from another source.

90    As I have previously indicated, in her written submissions before me, Ms Prior departed from the proposed grounds of appeal, adopting the proposed ground which appears at para 81 of her submissions and is set out above. It asserts an error of law but seems to be an assertion that in the circumstances of the case, his Honour must have failed properly to address a relevant question. In other words, Ms Prior submits that the result bespeaks an error. However the relevant considerations identified in the submissions are not capable of supporting that outcome. It is said that the post bore both the name and a photograph of Mr Thwaites. This submission draws attention to the fact that the primary Judge held only that the presence of Mr Thwaites’ name on the post did not prove authorship. Ms Prior apparently submits that the presence of a photograph somehow invalidates his Honour’s conclusion. The presence of the photograph may well demonstrate that whoever the author was, he or she intended to represent that the Calum Thwaites whose name was on the post was the person in the photograph. However that proposition says nothing more about the authorship of the post. It is probable that his Honour’s reference to the name, and not the photograph, simply reflected the way in which the case was conducted before him. It is quite likely that it was a shorthand way of referring to the apparent attribution of the post to Mr Thwaites. I see no basis for concluding that any such “oversight” demonstrates a basis for doubting the correctness of the decision below.

91    Ms Prior also submits that the absence of any cross-examination of Mr Thwaites, whether because of a decision by his Honour refusing to allow it, or because Ms Prior’s counsel did not persist in seeking to cross-examine, was based on the fact that the application was for summary judgment. Ms Prior seems to imply that in such circumstances, Mr Thwaites’ application for summary judgment necessarily had to fail. I shall deal separately with the question of cross-examination.

92    If the matter lay there, with Mr Thwaites’ denial and no evidence from Ms Prior as to his authorship, Mr Thwaites’ application would almost certainly have succeeded. As I have said, on the hearing of the present application, counsel for Ms Prior conceded that she had no “other” evidence as to authorship, either at the time of the hearing at first instance, or at the time of the hearing before me. As much was implicit in the fact that prior to the hearing at first instance, she had filed her evidence on trial but did not refer to any of it at the hearing. Thus it seems that Ms Prior’s position in the summary judgment proceedings was that, given that she had claimed that Mr Thwaites was the author, it was for him to prove the contrary. However, in my view, when Mr Thwaites, by his affidavit, denied authorship, it was for Ms Prior to show that there was a matter in issue between them. It may not be necessary, in every case, that the party responding to an application for summary judgment adduce evidence. However, a mere assertion in a pleading would rarely, if ever, be a sufficient answer to affidavit evidence. One might have expected that in answer to Mr Thwaites’ pleaded denial, Ms Prior would have sought evidence to support her claim. However she apparently had not done so. If she thought that the affidavit evidence was in some respects unconvincing, it was for her to respond, based upon appropriate enquiry.

93    The question for determination was whether Ms Prior had a reasonable prospect of success at trial. Subject to the question of cross-examination and the question of the subpoena, it is difficult to see any such prospect of success, even if exhibit 1 below should be characterized as being some evidence of authorship.

The application to cross-examine

94    I have been somewhat concerned by the primary Judge’s approach to Ms Prior’s request to cross-examine Mr Thwaites. In earlier summary judgment regimes of the kind discussed in Spencer, it was necessary only to show a barely arguable case in order to resist summary judgment. In those circumstances cross-examination was rarely appropriate. If the opposing parties, usually by affidavit, asserted conflicting factual issues, then the test was generally satisfied, and any application for summary judgment would fail. It may be that in seeking to demonstrate or disprove a reasonable prospect of success, cross-examination will be more frequently justified than was the case under earlier regimes.

95    Although, pursuant to s 26 of the Evidence Act, the Court may control the questioning of witnesses, s 27 confers a right upon a party to question a witness. Section 4 of the Evidence Act suggests that such right arises in all proceedings in federal courts. Clearly, the right is limited by considerations such as relevance. Any cross-examination of a deponent in a summary judgment application would be limited by the nature of those proceedings, and the questions to be determined. Fishing expeditions would not generally be permissible. One would expect that a party who sought to cross-examine would have to identify, with some specificity, the matters to be addressed. Such cross-examination would inevitably be limited by the nature and extent of the relevant party’s factual instructions to counsel.

96    At the beginning of the hearing at first instance, counsel for Ms Prior indicated that she wished to cross-examine Ms Angove. Ms Angove had made an affidavit upon which Mr Powell sought to rely. It apparently went to the operation of s 18D, a question which, in the end, did not arise in the summary judgment proceedings. Certain documents were also exhibited to the affidavit. There may have been some issue concerning the admissibility of those documents. When the question of cross-examination was first raised, the following exchange occurred at ts 7, ll 27-41:

HIS HONOUR:        Not a chance.

[COUNSEL]:        I understand, your Honour.

HIS HONOUR:        This is an interlocutory application. Nobody’s cross-examining anybody.

[COUNSEL]:        Your Honour, what that will mean ---

HIS HONOUR:        Give me a break.

[COUNSEL]:        I understand, your Honour. What that will mean is I will need to take your Honour to the documents that I suggest should be ignored by the court, if your Honour is minded to accept the affidavit even on the basis that it appears to be a relevant issue in the proceeding.

97    Ms Prior does not seek to appeal against any decision made concerning the cross-examination of Ms Angove.

98    Prior to the hearing, counsel for Ms Prior had indicated that Mr Thwaites should be available for cross-examination. It seems that counsel for Mr Thwaites had, prior to the hearing, indicated his objection to any application to cross-examine on the basis that Ms Prior had filed no material “going to the substantive issue”. However, at the hearing, counsel made it clear that he had no objection to such cross-examination. In her written submissions below, counsel for Ms Prior said:

16.    Mr Thwaites maintains that he is not the person who posted the offensive words pleaded at 14(d) of the points of claim. Mr Morris objects to the cross-examination of Mr Thwaites on the basis that no evidence "going to the substantive issues" has been filed by applicant. Mr Thwaites filed an affidavit on 11 February 2016. He attempts to demonstrate by that affidavit that, in spite of the fact that his name and face appear on the offensive post, it was not he who posted the material. He must be cross-examined about a number of points in that affidavit so that the Court can understand what he is saying - and what he is not.

17.    The points about which Mr Thwaites should be cross-examined will be pointed out in oral submissions, but commence with where the documents are demonstrating what he did to report this alleged impersonation.

(Footnotes omitted.)

99    At the hearing, counsel for Mr Thwaites asked the primary Judge whether he should call him for cross-examination. Notwithstanding his earlier assertion that, “Nobody’s cross-examining anybody”, his Honour invited counsel for Ms Prior to make an appropriate application, although it cannot be said that the invitation was encouraging. Counsel then drew his Honour’s attention to various aspects of Mr Thwaites’ affidavit. The first was that when Ms Kelly, a QUT staff member, sent him an email requesting removal of the offending post, he responded, nearly five hours later, denying his authorship. Ms Prior seems to have been suggesting that such a delay was, in itself, suspicious. I doubt whether we have yet reached the point at which one may not leave one’s emails unanswered for a few hours. Counsel also seems to have asserted that although Mr Thwaites claimed to have immediately complained to Facebook about the apparent impersonation, he did not receive a response until February 2015. This lapse of time was said to call for an explanation. Of course, during that period, Mr Thwaites was unaware of any complaint by Ms Prior. One can imagine that the matter may not have been pressing, from his point of view. Finally, the following passage appears at ts 17, l 24 to ts 18, l 35:

HIS HONOUR:        Sorry - I'm sorry to interrupt but what's the point of cross­examining him? Is it to ask - invite me, ultimately, to find that what he swears in his affidavit is untrue?    

[COUNSEL]:        Untrue or incomplete. Yes, your Honour.

HIS HONOUR:        Untrue or incomplete?

[COUNSEL]:        Yes, your Honour.

HIS HONOUR:        So let's assume that we go through the process and I determine that what he swears in his affidavit is true.

[COUNSEL]:        Yes, your Honour.

HIS HONOUR:        If I do that do you say that his application to summarily dismiss your client's case must therefore succeed?

[COUNSEL]:        No, your Honour.

HIS HONOUR:        Right. So even if what he says is true his application should, in any event, fail?

[COUNSEL]:        Yes, your Honour.

HIS HONOUR:        Yes.

[COUNSEL]:        Your Honour, of course, because this is a summary judgment application and your Honour's being asked to determine ---

HIS HONOUR:        Exactly. So why are we bothering with this?

[COUNSEL]:        For completeness, your Honour.

HIS HONOUR:        For completeness.

[COUNSEL]:        Your Honour, the issue is this, these two - these three respondents have made clear, as your Honour just saw, a demonstration from the bar table of the kind of vitriolic communication between the parties in this matter.

HIS HONOUR:        Listen, I've read the communications between the parties in this matter getting ready for today. It isn't one sided.

[COUNSEL]:        Yes, your Honour. That's why I said the vitriolic communication between the parties.

HIS HONOUR:        Well, having referred to the people each side of you may mean Mr Kelly - Mr Henry and Mr Morris.

[COUNSEL]:        I certainly include the parties.

HIS HONOUR:        Can we just get on with the guts of this thing?

[COUNSEL]:        Yes.

HIS HONOUR:        Instead of all this nonsense that's going on between all of these lawyers let's just get on with the gravamen of the thing so that I can determine it and get on to the next thing I've got to determine. Yes?

[COUNSEL]:        Yes, your Honour.

100    Counsel’s response that she proposed to cross-examine for the purpose of completeness is a little difficult to understand. It may have meant that she wished to tie Mr Thwaites to a version of events from which he could not depart at trial. It may be that counsel meant that she wanted to explore his evidence in some way, in the hope of finding some area of inconsistency. I am by no means sure that cross-examination for either purpose would have been permissible on a summary judgment application. If, however, there were specific matters, particularly documents, to be put to Mr Thwaites, which matters might seriously undermine his evidence, then it might well have been a case for limited cross-examination. If, as seems to have been the case, the proceedings below were conducted on the basis that the post was not capable of proving authorship, then there was good reason for not permitting cross-examination. In those circumstances, it could have been little more than a fishing expedition.

101    In any event, his Honour seems to have understood that counsel was not persisting in her application to be allowed to cross-examine. In her proposed grounds of appeal, Ms Prior asserts that his Honour erred in not permitting cross-examination of Mr Thwaites. However, as I have demonstrated, in written submissions, counsel took a somewhat different course, effectively submitting that his Honour had erred in his approach to the question of whether there was a real issue of fact for determination having regard to the fact (amongst others) that the application to cross-examine “was not granted or was not proceeded with ...”. In other words, Ms Prior seems to accept that it is, at best for her, unclear whether the primary Judge refused to permit cross-examination, or whether counsel did not persist in her application. Ms Prior rather seems to submit that whatever the reason for there having been no cross-examination, its absence should have led his Honour to refuse summary judgment.

102    Had counsel for Ms Prior wished to persist in her application, she was obliged to, politely but firmly, respond to the primary Judge’s enquiry at ts 18, ll 27-33, asserting such wish. She did not do so. It may well be that his Honour should have been less discouraging than he was. He was obviously unpersuaded that cross-examination would be of assistance in the circumstances of the case. Counsel apparently believed that she could defeat the application for summary judgment, even if Mr Thwaites’ evidence were accepted. The matters about which counsel wished to cross-examine suggest that it would have been little more than a fishing expedition. In those circumstances, it is understandable that counsel decided not to persist.

103    Mr Thwaites’ affidavit clearly denies that he was the author of the post. He offered some evidence as to his investigation of the matter, over a period during which he knew nothing of Ms Prior’s complaint or the ongoing proceedings in the Commission. It is difficult to see how Ms Prior could have instructed counsel that his evidence was untrue. She may have believed that Mr Thwaites was responsible for the post, but she cannot have instructed counsel that his evidence was untrue. In the absence of such instructions, any cross-examination would necessarily have been limited. In other respects the proposed cross-examination was likely to be speculative and therefore likely to be classified as “fishing”. When counsel was asked to elaborate on her purpose, she suggested that it was for “completeness” and seems to have related it to the “vitriolic communications between the parties”. I do not refer to these matters in order to justify any decision which his Honour made. Rather, I refer to them as indicating why counsel may have chosen not to press her request to cross-examine. I consider that counsel abandoned such request. In those circumstances, the case fell to be decided on such evidence as there was.

The subpoena directed to Facebook

104    Following the hearing before the primary Judge on 11 March 2016, his Honour reserved his decision. On 13 June 2016 Ms Prior applied to the primary Judge for leave to serve a subpoena out of the jurisdiction. The subpoena was addressed to “The Proper Officer, Facebook Security, Law Enforcement Response Team, Facebook Ireland Ltd” at a Dublin address, and was for the production of documents. One infers that it was hoped that the documents produced in answer to the subpoena would produce some evidence in support of the claim that Mr Thwaites was the author of the post. At the hearing of the application, there appears to have been some doubt as to whether the subpoena was for the purposes of any future trial, or for the purposes of resisting the applications for summary judgment. However it became clear that Ms Prior had in mind the possibility that if anything useful emerged in answer to the subpoena, she might seek to re-open her case in the summary judgment proceedings. In the end, leave was given as sought.

105    Ms Prior now submits that the primary Judge should have deferred giving judgment on Mr Thwaites’ application until there had been a response to the subpoena. There is no suggestion that the subpoena has yet produced anything of assistance to Ms Prior in establishing Mr Thwaites’ authorship. It is said that his Honour could not have reasonably concluded otherwise than that it would be inappropriate to exercise his discretion to dismiss the claim against Mr Thwaites before determining the application for the subpoena, and before considering any evidence which might be disclosed in answer to it. That proposition is entirely without merit. First, his Honour granted leave to serve the subpoena. Second, Ms Prior had filed her evidence for trial and had defended the application for summary judgment. Insofar as concerns the summary judgment application, she had closed her case, and there was no apparent reason to believe that anything helpful would come out of the subpoena. Further, Ms Prior made no attempt to explain why she was seeking the production of documents at such a late stage. In any event, it is clear that as at 13 June 2016 no useful documents had been produced. Further, as far as the evidence goes, no useful documents have yet emerged. The proposed ground of appeal is without any prospect of success.

106    I see no arguable error in his Honour’s conclusion that the case against Mr Thwaites enjoyed no reasonable prospect of success. There is no basis for granting leave to appeal, and so the application to extend time in which to apply for such leave must fail.

Ms Prior’s perspective and that of the student group and/or the wider group

107    Before addressing the proposed grounds of appeal against Mr Wood and Mr Powell, I again note the primary Judge’s observation that very little had been said by the parties concerning the perspective of a person in the position of Ms Prior or of the representative of the student group or the wider group. In particular, no attempt was made below to identify the way or ways in which either Mr Wood’s post or those of Mr Powell was or were reasonably likely to offend, insult, humiliate or intimidate. Nor was any attempt made to show the basis upon which it could be said that such statements were made because of race. Ms Prior seems simply to have asserted that the statements were made, and that they concerned facilities made available to indigenous QUT students. It is only on the hearing of the present applications that there has been any attempt to particularize the case. As a result, many of the proposed grounds of appeal, as explained in Ms Prior’s written and oral submissions were not raised at first instance. I should add that, although some mention was made in oral submissions concerning the wider group, the proposed grounds of appeal and the written submissions appear to deal only with Ms Prior and the student group.

Expectations of a free and tolerant society

108    I have previously referred to the primary Judge’s adoption of the proposition that the “reasonable victim” should be characterized as exhibiting, “characteristics consistent with what might be expected of a free and tolerant society”. In Eatock v Bolt (2011) 197 FCR 261 at [255]. Bromberg J seems to have assumed that for the purposes of s 18C(1)(a), the relevant person or group should have such characteristics. Barker J took the same approach in Clarke v Nationwide News Pty Ltd (2012) 201 FCR 389 at [59]. Bromberg J found support for this approach in an observation made by Nettle JA in Catch the Fire Ministries Inc v Islamic Council of Victoria Inc (2006) 15 VR 207 at [96]. However, as Bromberg J noted, the remarks by Nettle JA concerned s 11 of the Racial and Religious Tolerance Act 2001 (Vic) (the “Victorian Act”). The conduct in question was said to be engaging in conduct which incited hatred against, severe contempt for, or revulsion or severe ridicule of another person or class of person (on the ground of religious belief or activity).

109    In that case, the members of the Court drew attention to substantial differences between the Racial Discrimination Act and the Victorian Act. More importantly, the relevant observations by Nettle JA related to s 11 of the Victorian Act, which section dealt with circumstances in which the proscribed conduct might be excused, the function performed in the Racial Discrimination Act by s 18D. Finally, as Nettle JA observed at [94], the preamble to the Victorian Act made it, “clear, that the standards of reasonable persons are the standards of an open and just multi-cultural society”. Notwithstanding such differences between the two acts, the remarks by Nettle JA may well have relevance to the approach to be taken to s 18D. It may be dangerous to graft such remarks on to s 18C(1) where the prescribed test is the reasonable likelihood that the conduct in question will offend, insult, humiliate or intimidate a particular person or group for reason of his, her or its race. Such an approach may significantly narrow the scope of s 18(1)(a). That section focusses on the reasonableness of the alleged effect on the person or group in question. It does not impute to the person or group the characteristics expected of a free and tolerant society. It may be, however, that such community qualities are to be taken into account in assessing the question of reasonableness, having regard to the fact that the person or group is living in a free and tolerant society. The values of such a society might also inform the operation of s 18D.

110    In any event there is no appeal arising out of the primary Judge’s identification of a person in the position of Ms Prior or a representative of the student group. It is therefore not necessary that I further consider this matter.

Mr Wood

111    Of the three respondents to this application, only Mr Wood was involved in the incident in the computer lab. Shortly thereafter, he posted the statement:

Just got kicked out of the unsigned Indigenous computer room. QUT stopping segregation with segregation?

112    The primary Judge dealt with Mr Wood’s statement as follows:

    the statement that he had been “kicked out of” the computer lab was entirely factual;

    no attempt had been made to demonstrate how it may have infringed s 18(1)(a);

    the second statement was a statement of opinion, posed as a question;

    the word “segregation” had a racial tone and historically had “negative connotations”;

    taken together, the two sentences carried a negative connotation with a racial undertone derived from the reference to QUT stopping segregation with segregation, referring to QUT’s conduct in providing segregated facilities where non-indigenous people were excluded by reason of race or ethnicity;

    the statement was a reference to the separation of people into ethnic or racial groups; and

    any such negative connotations were directed at QUT.

113    His Honour concluded that because the post was directed at QUT and its actions, and against racial discrimination, a hypothetical person in the position of Ms Prior or a representative of either group would not have been offended, insulted, humiliated or intimidated by Mr Wood’s post. As to s 18C(1)(b), at [51] the primary Judge observed that Mr Wood had filed an affidavit in which he asserted that his reasons for the post were as follows:

a.    his moral abhorrence to racial discrimination and his concern that “racial segregation was policy administered on the campus of my university”;

b.    his concern that his HECS fees were being applied to provide a facility which excluded particular racial or ethnic groups from using; and

c.    his concern that the first respondent’s policy impacts upon the opportunity for interaction between students from different backgrounds which he considered to be invaluable and an important aspect of his university education..

114    His Honour continued at [52] and [53]:

52.    As Mr Wood explains:

... The fact that these facilities were provided exclusively for indigenous students - rather than, say, Chinese students, or Muslim students, or Native American students, or Anglo-Saxon students - was quite irrelevant to me when I made the post. What I objected to was the apparent policy of racial or ethnic discrimination and racial or ethnic segregation; not any particular “race, colour or national or ethnic origin” of the students who use such facilities.

53.    Further, Mr Wood swears that he had did not know Ms Prior’s race or ethnicity.

115    As I have said, I am not sure that Mr Wood swore that he did not know Ms Prior’s race or ethnicity, but the case seems to have been conducted on that basis, perhaps because it was perceived to be a reasonable inference from his affidavit. His Honour considered that Mr Wood’s evidence established a “prima facie case for relief because it was evidence that he had not made the post for reason of Ms Prior’s race, colour, nationality or ethnic origin” or because of the similar characteristics of the identified groups. To the extent that any such inference could be drawn from the post itself, his Honour considered that Mr Wood’s evidence negated it. Alternatively, Mr Wood’s post was a mere slight

116    I turn to the proposed grounds of appeal. Proposed ground 1 relates only to Mr Wood’s post as it affects the notional representative of the student group, not that of the wider group, nor a person in Ms Prior’s position. It asserts that his Honour failed to consider whether Mr Wood’s post may have offended, insulted, humiliated or intimidated members of the student group by advancing “the contention ... that QUT should not provide them with the benefit of a special measure in the form of a designated computer laboratory”.

117    There are a number of problems with this proposed ground. First, at the hearing below, Ms Prior made no such submission concerning the capacity of the post to offend, insult, humiliate or intimidate. Second, the proposed ground attributes to the words used in the post, a meaning not pleaded or previously asserted. On its face the post addressed segregation, not the provision of special measures. The New Shorter Oxford English Dictionary defines “segregation” to mean, “the separation or isolation of part of a community or group from the main body or from a particular class etc”, or “the enforced separation of different racial groups in a country, community, establishment, etc”. To say that a relevant community should not be segregated is not to say that individual members or groups should not receive special assistance. At most such a statement may imply that special measures should not be provided in a segregated environment. Proposed ground 1 is misconceived.

118    In her written submissions on appeal, Ms Prior seeks to add ground 1A as follows:

The learned primary Judge, in finding that the Facebook posts by [Mr Wood] were not reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate [the student group] because they were directed at the QUT, erred in law in failing to consider whether the hypothetical representative of the [student group] may be offended, insulted, humiliated or intimidated by the contention by [Mr Wood] that the QUT should not provide the group with the benefit of a special measure in the form of a designated computer laboratory.

119    Proposed ground 1A adds little to proposed ground 1. Proposed ground 1 addresses his Honour’s alleged failure to consider whether the post was likely, in the circumstances to offend, insult, humiliate or intimidate the representative member of the student group. Proposed ground 1A addresses the alleged failure to consider whether, notwithstanding the fact that the post was directed at QUT, the post might have such an effect. In my view, both grounds address the effect of the post in the circumstances in which it occurred. Ms Prior seeks to support proposed ground 1A by suggesting that the direction of the post to QUT and its conduct was irrelevant. I see no justification for that assertion. Neither proposed ground 1 nor proposed ground 1A raises any doubt as to the correctness of the primary Judge’s decision.

120    Proposed ground 2 seems to accept his Honour’s finding that Mr Wood had some reason other than race for making the post. However Ms Prior asserts that his Honour ought to have found that at least one reason for the post was race. The submission seems to be that in expressing a concern about segregation by race, Mr Wood’s post was “because of” Ms Prior’s race or that of the student group. In support of that submission, Ms Prior points to the fact that his Honour made no mention of s 18B, which section relates to circumstances in which there are multiple reasons for the relevant conduct, including race. However his Honour found that there was no evidence that Mr Wood made the post because of race. In those circumstances, there was no need to refer to s 18B. Ms Prior seems to submit that if there may be more than one reason for conduct, one should assume that all reasons were reasons. Such a proposition is clearly unsupportable. Whilst the primary Judge had to keep that possibility in mind, such other causes were excluded by his findings of fact. A fact-finder need not accept at face value a reason offered by a relevant person as the sole reason, or one of the only reasons for his or her conduct. Nor need it accept a denial that a possible reason was the reason for such conduct. Nonetheless, in each case, the fact-finder may so decide. In the present case Ms Prior does not explain why there should be a finding that race was a relevant cause. She rather asserts that it should be assumed that race was a reason, simply because there was some relationship between the post on the one hand and the student group on the other. As I have previously observed, there is a clear distinction between a comment concerning segregation on the basis of race, and a comment concerning a particular race. There is no necessary inference that a comment about segregation is caused by the races which are segregated. This ground also seems not to have been raised below.

121    In her written submissions, Ms Prior advances a further proposed ground 2A. However it relates to Mr Powell. I shall discuss it when I consider the proposed appeal as it concerns him.

122    Proposed ground 3 asserts that the primary Judge erred in his conclusion that Mr Wood’s post was not made because of Ms Prior’s race, in that he took into account the fact that Mr Wood did not know of Ms Prior’s race. As I have said I am not sure that Mr Wood said precisely that, but his Honour seems to have proceeded on that basis. There is no challenge to his Honour’s approach in that regard. Mr Wood certainly said that he did not “really know” if he had ever met or seen Ms Prior. However he assumed that she was the person who spoke to him in the computer lab. Ms Prior’s written submissions seem to accept that Mr Wood was not aware of Ms Prior’s race. She submits that the matter was irrelevant to the decision concerning s 18C(1)(b), or that it should have been displaced by a finding that a reason for the post was the setting aside of the computer lab for use by indigenous people. Of course his Honour’s decision was not based solely on the proposition that Mr Wood did not know Ms Prior’s race. It was primarily based upon Mr Wood’s evidence as to his purpose. Further, there is no rational argument advanced in support of the proposition that Mr Wood’s ignorance of Ms Prior’s race was an irrelevant consideration. Finally, no attempt has been made to justify the proposition that his Honour ought to have found that publication of the post was because of the setting aside of space for a race group. I see no need to add anything further to my remarks concerning proposed grounds 1 and 2. Ms Prior seeks to raise proposed ground 3A. It is similar in form to proposed ground 3, but concerns Mr Powell. I shall deal with that matter when I deal with the case against him.

123    Proposed ground 4 asserts that the primary Judge failed to find that the cumulative effect of Mr Wood and Mr Powell’s posts, in the context of the other posts in exhibit 1 below, was likely to offend, insult, humiliate or intimidate Ms Prior or the student group. Such a submission was made in Ms Prior’s submissions below at para 34. However there has been no attempt to explain how the effect of any relevant post would have been affected by its being read with another post, or in the context of all of the posts. Nor has there been any attempt to identify the cumulative effect of either Mr Wood and Mr Powell’s posts and all of the posts.

124    Generally, if words are to be treated as having any meaning other than their natural meaning, such special meaning must be pleaded. On the other hand, it is quite clear, with reference to the three posts by Mr Powell upon which Ms Prior relies, that their meanings were inter-related and, to some extent, to be understood in light of the posts by other persons, which posts preceded them. I do not see, however, any way in which either Mr Wood or Mr Powell may be held responsible for the other’s posts, for that allegedly made by Mr Thwaites, or for any of the other posts. There can be no basis for seeking to understand Mr Wood’s post in light of following posts, given that it preceded all of them. Nor do I see any sensible basis for “accumulating” the effect of Mr Wood’s post with those of Mr Powell’s subsequent posts, at least as against Mr Wood. Before me, it was suggested that the combined effect of the posts by all three respondents, using the words “segregation”, “white supremacist” and “niggers” might offend, insult, humiliate or intimidate. However there is no suggestion that Mr Thwaites and/or Mr Wood and/or Mr Powell acted in concert. As I have said there has also been no attempt to identify any cumulative effect.

125    Section 18C imposes liability upon a person for his or her conduct, and not for the conduct of others. There seems to me to be no basis upon which Mr Wood could be responsible for conduct occurring after his post. In any event, I see no basis upon which Ms Prior should be allowed to raise such an argument, given that no such “cumulative” meaning was pleaded or advanced in argument below or before me. I shall consider this matter as it affects Mr Powell when I consider the case against him.

126    Proposed ground 5 appears to be a more specific version of proposed ground 4, focussing on intimidation and the observation, apparently made in some cases, that intimidation involves an element of loss of self-esteem or dignity and the lowering of regard in the wider community. Once again, no such argument was raised below. His Honour gave special consideration to the question of intimidation in considering Mr Powell’s posts, but not in connection with Mr Wood’s post. His Honour may have considered that the term “white supremacist” might have a particularly intimidating effect which Mr Wood’s reference to segregation would not. For the reasons which I have given, I see no basis for reading Mr Wood’s post in light of subsequent posts. I also see no basis for inferring that his Honour did not understand the meaning of the word “intimidate”. Neither proposed ground 4 nor proposed ground 5 raises any question as to the correctness of the primary Judge’s decision.

127    Proposed ground 6 asserts that the primary Judge unreasonably concluded that Mr Wood’s reference to segregation was a “mere slight”. His Honour dealt with the matter at [57]. I have previously observed that his Honour may have misstated the point made by Kiefel J in Creek. The point is that, “to offend, insult, humiliate or intimidate are profound and serious effects, not to be likened to mere slights”. In this context, the word “slight” means, according to the New Shorter Oxford English Dictionary:

Marked indifference or disregard, supercilious treatment ... An instance of slighting or being slighted; a marked display of disregard; a failure to show due respect.

128    This definition suggests that the word “slight” describes the conduct of a person towards another, rather than the effect of such conduct on the other. In s 18C, the words “offend”, “insult”, “humiliate” and “intimidate” describe the effect, or possible effect of the conduct of a person on another person. It follows that the word “slight” does not describe an effect which is less than offence, insult, humiliation or intimidation. Kiefel J meant that conduct which could be characterized as a mere slight was conduct which could not reasonably cause another person to feel offended, insulted, humiliated, or intimidated. The word “slight” does not appear in s 18C. Her Honour used the term to describe conduct which, by virtue of its trivial nature, would not engage that section. It follows that proposed ground 6 adds nothing to the other proposed grounds and casts no doubt upon the correctness of his Honour’s decision.

129    None of the proposed grounds of appeal as against Mr Wood raises any basis for doubting the correctness of his Honour’s decision. It follows that there should be no extension of time in which to seek leave to appeal as against him.

Mr Powell

130    Proposed grounds 2A, 3A, 4, 5 and 7 relate to Mr Powell. The case against Mr Powell is rather more complex than that against Mr Wood. First, Mr Powell made numerous posts, three of which are said to have offended against s 18C. Second, he used the somewhat emotive term “white supremacist”. Third, his posts tended to interact with the posts of others. As with Mr Wood, at first instance, Ms Prior seems not to have attempted to suggest how or why Mr Powell’s posts were likely to offend, insult, humiliate or intimidate, either by way of attributing any particular meaning to his posts, or by describing how the posts, so understood, would have caused offence, insult, humiliation or intimidation.

131    The New Shorter Oxford English Dictionary defines the term “white supremacy” to mean “domination by Whites over non-Whites, esp. Blacks”. “White supremacism” is defined as “the doctrine or practice of white supremacy”. The term “white supremacist” means “a believer or practitioner of white supremacy”. There can be little doubt that to people who do not identify as “white”, such a philosophy is offensive. For a person to claim to be a white supremacist might produce, in such people, a feeling of animosity. To suggest that a group of white supremacists should be given some sort of benefit might cause outrage, as might a suggestion that they were as entitled to such benefit as a group who had been historically subjected to discrimination on the basis of race or colour. However, it is quite clear that Mr Powell was not suggesting any of those propositions. When one considers his posts as a whole and, where relevant, in context, he was saying something quite different. Persons who responded to his posts so understood him. The primary Judge considered that his posts may have been an attempt at humour, which attempt was in poor taste. In my view it may be more accurate to say that he sought to employ the rhetorical device of irony. I use the term “rhetorical” to mean “pertaining to the art of rhetoric”, and not in its more commonly used sense. The New Shorter Oxford English Dictionary defines “irony” as:

The expression of meaning using language that normally expresses the opposite; esp. the humorous or sarcastic use of praise to imply condemnation or contempt.

132    Sarcasm can therefore be seen as a form of irony. However the New Shorter Oxford English Dictionary defines the term “sarcasm” to mean:

A bitter or wounding expression or remark, a taunt, esp. one ironically worded.

133    I do not understand it to be suggested that Mr Powell intended to hurt anybody by his remarks. However that fact does not dispose of the assertion that he infringed s 18C.

134    Mr Powell’s first post does not assert that there should be a computer lab for white supremacists. Rather, he was asserting that such a proposition would be absurd. It is fair to say that he used such absurdity in order to demonstrate his opposition to the provision of separate computer facilities for indigenous students. That proposition was advanced in the context of Mr Wood’s post concerning segregation. It is likely that his concern was also physical separation on the ground of race. However his affidavit does suggest some opposition to special arrangements for groups of students. It is possible that his first post could be construed as involving opposition to such special arrangements. In that sense, his posts could be said to have been made, “because of” positive discrimination on the ground of Ms Prior’s race or that of either group. As with segregation, the concept of differential treatment because of race may be distinct from that of race.

135    When one looks at the second and third of those of Mr Powell’s posts which are relied upon by Ms Prior, his real intention becomes more obvious. Posts by other people expanded upon the idea of providing facilities for individual groups, referring to extreme examples of such “positive discrimination”. One post mentioned the “KKK”, presumably the Ku Klux Klan. Mr Powell responded, distinguishing his assumed white supremacist persona from that of “those hillbillies”, seeking, in an ironic way, to imply relative superiority of his assumed doctrine over that of the other organization. A post by another person referred to the need for a room for white males, “so I can wear my fedora and wallet chain without being mocked”, adding the comment, “I’m being oppressed here”. Mr Powell responded, “Today's your lucky day, join the white supremacist group and we'll take care of your every need". By this time, Mr Powell’s contribution to the thread had descended into (humorous or ironic) fantasy. Mr Powell’s final post was not directed towards separate facilities or special arrangements, but to the satisfaction of all “needs”.

136    The primary Judge considered that a reasonable person in the position of Ms Prior, or a reasonable representative of the student group would appreciate that Mr Powell was speaking, humorously (or ironically). Such a person may have considered such humorous treatment to be inappropriate, given the nature of the topic, but, in his Honour’s view, it was unlikely that such a person would be offended, insulted, humiliated or intimidated.

137    His Honour also considered that Mr Powell’s evidence established that his posts were not made because of Ms Prior’s race, or that of the student group, but because of discrimination on the basis of race. His Honour understood that Mr Powell did not know Ms Prior and had never met her. In those circumstances the primary Judge inferred that there was no evidence of any other reason for the posts. To the extent that the posts, themselves, might have provided a basis for inferring that they were made because of Ms Prior’s race or that of the student group, his Honour considered that the obvious attempt to use humour (or irony) demonstrated to the contrary. Further, his Honour concluded that Mr Powell’s conduct was not such as to engage s 18C(1)(a) in that the effect of such conduct could not be seen as sufficiently profound or serious. His Honour could have rejected Mr Powell’s evidence, but he saw no reason to do so.

138    It may be possible to read many different meanings into these posts whether each is taken in isolation from the others or all are considered collectively. Similarly, it may be possible to attribute meanings by reference to posts by other people. However the question posed by s 18C(1)(a) is as to the reasonably likely effect, not possible effect. Although Mr Wood’s post was prompted by his exclusion from the computer lab, nothing in his post suggested anything other than a view as to the appropriateness of such arrangements, without any reference to whether or not special arrangements of any kind were appropriate for the benefit of indigenous people. Mr Powell’s posts was in response to the thread of posts which were posted after Mr Wood’s post and before his own. Whilst his first post may have addressed either segregation or special arrangements, he did not make any reference to race or special arrangements based on race. His later posts seem to have been more designed to maintain the ironic use of the term “white supremacist” than to make any further comment or criticism concerning the provision of the computer lab for indigenous students.

139    I turn to the proposed grounds of appeal. Proposed ground 2A asserts that his Honour erred in acting upon Mr Powell’s evidence as to the reason or motive for the posts. Ms Prior submits that a reason for the posts was the setting aside of a room for use by indigenous students. However she makes no attempt to explain the basis for such assertion, other than that the posts were made. To make a comment opposing the differential treatment of people on the basis of race is not necessarily to make a comment about a particular race, in this case Aboriginal and Torres Strait Islander people. It might be otherwise if a comment urged or opposed discrimination in favour of, or against one race as opposed to another. Ms Prior seems to submit that the posts themselves inevitably indicated that they were made because of her race or that of the student group. The argument seems to be that Mr Powell’s sworn evidence must give way to the bare possibility that the posts were because of race. It is true that a person’s perception of his or her motivation may overlook ingrained values and attitudes which are race-based. However such an approach can be taken too far. We must surely be past the days in which subliminal, if not conscious, discrimination on the basis of race is simply to be assumed. The proposed ground offers no basis for doubting the correctness of the primary Judge’s decision.

140    Proposed ground 3A against Mr Powell seems to be misconceived. I do not understand the primary Judge to have acted upon the basis that Mr Powell did not know of Ms Prior’s race. He said only that Mr Powell did not know her, and had never met her. In any event, as I have observed in connection with the case against Mr Wood, the primary Judge acted upon Mr Powell’s evidence and his views as to its involving elements of humour. The proposed ground demonstrates no apparent error in the primary Judge’s reasons.

141    As to proposed ground 4, I accept that to some extent, Mr Powell’s posts must be read cumulatively, and in the context of other posts with which they are patently associated. I do not accept that he is to be held responsible for all of the posts in the thread. I do not see that Mr Wood’s post adds anything to Mr Powell’s posts, other than by commencing the debate concerning segregation. The post attributed to Mr Thwaites can hardly be described as having been in response to anything said by Mr Powell (or, for that matter, by Mr Wood). It is simply a deliberately provocative racial slur. Mr Powell neither prompted that post nor adopted it. I have dealt with the context in which the other impugned posts were made. Once again Ms Prior has not sought to identify any particular contextual matters which should have been addressed. She does no more than allege a failure to consider the cumulative effect of the posts, without identifying that cumulative effect. Proposed ground 4 identifies no error in the primary Judge’s reasoning.

142    As I have previously pointed out, proposed ground 5 deals only with intimidation. It asserts that discussion of the student group’s entitlement to special measures might have an (unspecified) effect upon the self-esteem or dignity of group members. It is said that his Honour did not consider this possibility. Once again, there seems to have been no such submission made below. His Honour dealt specifically with intimidation at [67]. His conclusion was that the posts would not intimidate in the context in which they occurred. I take that context to include the humorous intention (or irony) to which his Honour had earlier referred. There is no suggestion in the statement of claim that the pleaded statements were to be understood in a particular way by reference to their combined effect, or in the context of the thread as a whole. This proposed ground identifies no error in the primary Judge’s reasons.

143    Proposed ground 7 deals with his Honour’s finding that Mr Powell’s posts were no more than mere slights. The thrust of the proposed ground seems to be that use of the expression “white supremacist” in connection with the entitlement of the student group to a designated computer lab could never be other than humiliating or intimidating, “in the sense of lowering self-esteem and demeaning Aboriginal students at QUT”. It is further submitted that any humour aggravated, rather than diminished, such effect.

144    Once again, no such submission was made at first instance. The primary Judge was left to identify for himself the basis of Ms Prior’s case. Further, to suggest that humour (or irony) cannot blunt the most outrageous of statements overlooks the history of such devices, and the extremes to which comedians, authors and speakers commonly use them today. No reasonably intelligent person would have understood Mr Powell’s posts as other than humour or irony. His Honour concluded that the posts would not offend, insult, humiliate or intimidate a reasonable person in the position of Ms Prior or in the position of the representative of the student group. Proposed ground 7 demonstrates no error in his Honour’s reasoning.

The wider group

145    I have proceeded upon the basis that none of the proposed grounds of appeal relates to the wider group. However, at one point in oral submissions before me, counsel for Ms Prior suggested that her case concerned both groups. Nonetheless, nothing else was said about the wider group. Identification of a relevant group as simply being comprised of Aboriginal and Torres Strait Islander people would pose serious evidentiary problems for Ms Prior, simply because of the diversity of such a group. His Honour seems to have dealt with both groups as if they had similar characteristics. That approach has not been challenged on appeal. Nor do any of the proposed grounds distinguish between the two groups. There is therefore no apparent reason for assuming that Ms Prior may have succeeded in proving that the reasonable representative of the wider group would have been offended, insulted, humiliated or intimidated where the reasonable representative of the narrower group would not.

146    In the circumstances, the proposed grounds of appeal offer no more than disagreement with the primary Judge’s conclusions. They do not suggest any reason to doubt the correctness of the decision. In those circumstances, leave to appeal would not be granted. The application for an extension of time in which to seek leave to appeal must be dismissed. I shall receive submissions as to costs.

Associate:

Dated:    3 March 2017