FEDERAL COURT OF AUSTRALIA

Charles v Fuji Xerox Australia Pty Ltd

[2000] FCA 1531

HUMAN RIGHTS – complaint to Human Rights and Equal Opportunity Commission of acts of disability discrimination in employment – period of time covered by complaint – whether applicant in proceeding before Federal Court can allege acts of discrimination not alleged in terminated complaint.

Human Rights and Equal Opportunity Commission Act 1986 (Cth), ss 46PA, 46PF(1), 46PF(4), 46PH, 46PO(1), 46PO(3)

Disability Discrimination Act 1992 (Cth), ss 15, 17, 67(1)(a), 68, 69, 71, 101

Human Rights Legislation Amendment Act (No. 1) 1999 (Cth), ss 3, 10, 14, items 24, 25 & 61 of Sch 1

Anti-Discrimination Act 1977 (NSW), s 88

Judiciary Act 1903 (Cth), s 79

Limitation Act 1969 (NSW)

Federal Court of Australia Act 1976 (Cth), s 32AB(1), 32AB(6)

McAuliffe v Puplick (1996) EOC ¶92-800 discussed

MacDonald v Puplick (NSWSC, 12 June 1998, unreported) referred to

Wigan v Edwards (1973) 1 ALR 497 discussed

Senate Explanatory Memorandum:  Human Rights Legislation Amendment Bill (No. 1) 1999 (Cth)

House of Representatives Hansard, 11 March 1999, pp. 3754 & 3755

MERVYN CLETUS CHARLES v FUJI XEROX AUSTRALIA PTY LTD

N 479 of 2000

KATZ J

30 OCTOBER 2000

SYDNEY

THE COURT DIRECTS THAT:

1.                  On the final hearing of the proceeding, the applicant not be at liberty to lead any evidence directed to establishing the doing by the respondent after 3 April 1999 of any act constituting unlawful disability discrimination in employment.

THE COURT ORDERS THAT:

2.                  The respondent’s motion be otherwise dismissed.

3.                  The proceeding be transferred to the Federal Magistrates Court.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     There is pending in the Court a proceeding begun on 11 May 2000 by Mr Mervyn Cletus Charles.  Mr Charles began the proceeding by application under subs 46PO(1) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOCA”).  In the proceeding, Mr Charles has alleged against his employer, Fuji Xerox Australia Pty Limited, the doing of acts constituting unlawful disability discrimination in employment.

2                     Fuji Xerox has now filed in the proceeding a notice of motion seeking (relevantly) an order that “[t]he complaint the subject of the proceeding[ ] covers the period [from] 4 April 1998 to 3 April 1999”.

3                     In order to make explicable the basis on which Fuji Xerox has sought relief before me, it is necessary that I refer to certain circumstances existing before Mr Charles began his proceeding in this Court.

4                     On 3 April 1999, the Disability Discrimination Act 1992 (Cth) (“the DDA”) provided in subs 69(1) thereof for the lodging with the Human Rights and Equal Opportunity Commission (“the Commission”) of a complaint in writing by a person aggrieved, alleging that another person had done an act that was unlawful under a provision of Pt 2 of the DDA.  Among the provisions of Pt 2 of the DDA was s 15, which rendered the doing of certain acts unlawful disability discrimination in employment. 

5                     On 3 April 1999, Mr Charles wrote to the Commission, saying (emphasis added),

“I do hereby submit my complaint against my employer Fuji Xerox Australia Pty Ltd … for discriminating against me because of my workplace injury and consequent disability.

I have enclosed copies of my correspondence to support my complaint along with copies that would prove that my complaint to the ADB of NSW [that is, the Anti-Discrimination Board of New South Wales] was one of racial discrimination and not of disability discrimination and that the disability issue was raised only in 1997.”

It appears from the words which I have emphasised in the passage which I have just quoted that Mr Charles was alleging against Fuji Xerox the doing of acts constituting unlawful disability discrimination in employment by it beginning no later than 1997.

6                     At the time at which Mr Charles made his complaint, subs 71(1) of the DDA required the Commission to notify the Disability Discrimination Commissioner (“the Commissioner”) of the making of a complaint like Mr Charles’s, whereupon the Commissioner was, subject to subs 71(2) of the DDA, required to inquire into the alleged unlawful act and endeavour by conciliation to effect a settlement of the matter to which the alleged unlawful act related.  In doing so, the Commissioner would be performing, on behalf of the Commission, the latter’s function under par 67(1)(a) of the DDA: see s 68 of the DDA as it was at the relevant time.

7                     Subsection 71(2) of the DDA, to which the Commissioner’s obligations under subs 71(1) of the DDA were made subject, provided that “[t]he Commissioner may decide not to inquire into an [alleged unlawful] act … if” any one of a number of listed circumstances existed.  Two such circumstances are presently relevant.  First, par 71(2)(c) listed the following circumstance: “a period of more than 12 twelve months has elapsed since the act was done and the complaint was made to the Commission”; secondly, par 71(2)(e) listed the following circumstance: “in a case where some other remedy has been sought in relation to the subject matter of the complaint—the Commissioner thinks that the subject matter of the complaint has been adequately dealt with”.

8                     On 11 October 1999, the Commissioner wrote to Mr Charles as follows (emphasis in original):

“I refer to your complaint under the Disability Discrimination Act 1992 against Fuji Xerox Australia Pty Limited.

You say that you suffered a work related back injury some years ago and you continue to experience pain as a result of that injury.  You experienced problems with your back throughout 1997 and 1998 and there were regular meetings between management, the rehabilitation provider and the Australian Services Union to determine what duties you could perform.  You were on restricted duties in the second half of 1998 and for most of that time you serviced one brand of photo-copying machine.

At the end of 1998 you were found not to have reached the required performance targets.  You say that this was the first time your performance had been assessed as being unsatisfactory and you believe that your manager did not take into account that you were on restricted duties.  As a result of the negative performance appraisal you received a formal warning, you were asked to follow an individual work plan and you did not receive your salary increment or your annual bonus.  The union intervened on your behalf and the industrial officer negotiated with Fuji-Xerox to pay you the bonus and salary increment and to remove the warning letter from your file.  In 11 June 1998 you entered into an agreement with Fuji-Xerox which specified that you accepted these terms in full and final settlement of your claim.

On 5 August 1999 you advised Ms Merrilyn Aylett the Commission that you wished to proceed with the complaint because you felt that the agreement did not adequately address the distress you suffered between December 1998 and June 1999.

After considering the material on the file I have formed the view that you have already obtained a remedy for the issues raised in the complaint.  Accordingly, I have decided not to inquire into the complaint, pursuant to section 71(2)(e) of the Act, because I think the subject matter has already been adequately dealt with.  I realise that you will be disappointed with my decision but once a matter has been finalised by a formal agreement both parties can reasonably expect that no further action will be taken.  I note that you were advised by the union during these negotiations and you appear to have made an informed decision to resolve the matters on the terms agreed.

The Act provides that you may require me to refer the complaint to the President of the Commission if you disagree with my decision and wish to have it reviewed.  You must notify me in writing within twenty-one (21) days of your receipt of this letter if you wish to have the decision reviewed.  If you do not reply within the statutory twenty-one day period the file will be closed.

I note that in your letter to the union you asked if the employer was permitted to continue to discriminate against you on the basis of age and ethno-religious background.  In your conversation with Ms Aylett you also raised the issue of discrimination on the ground of religion.

The Commission can inquire into complaints of discrimination in employment on the grounds of age and religion.  However there has to be a clear connection between the alleged less favourable treatment and the complainant’s age or religion.  If you think you have been discriminated against in the workplace on one of these grounds, I encourage you to try to resolve the matter informally in the first instance.  The union has been supportive in the past and it may be able to assist you to raise these issues with your employer.

If you would like to discuss the complaint or to obtain further information about the review procedure please do not hesitate to contact Ms Aylett….”

9                     I make a number of comments about that letter.  First, the letter was written pursuant to subs 71(3) of the DDA, which provided at the relevant time that if the Commissioner decided not to inquire into an alleged unlawful act in respect of which a complaint had been made to the Commission, then the Commissioner was required to give notice in writing to the complainant of that decision, of the reasons for it and of the rights of the complainant under subs 71(5) of the Act.  Secondly, the sole reason given in the letter for the Commissioner’s decision was the matter set out in par 71(2)(e) of the DDA; the Commissioner did not rely on the matter set out in par 71(2)(c) of the DDA.  Thirdly, the letter complied with subs 71(3) by giving Mr Charles notice of his rights under subs 71(5) of the DDA.  The latter subsection provided at the relevant time that if the Commissioner had given a complainant a notice under subs 71(3) of the DDA, then the complainant might, within twenty-one days after receipt of the notice, by notice in writing served on the Commissioner, require the Commissioner to refer the complaint to the President of the Commission (“the President”).

10                  On 24 October 1999, Mr Charles wrote to the Commissioner, requiring the reference of his complaint to the President. 

11                  On that day, subs 71(6) of the DDA provided that on receipt of a notice under subs 71(5) of the DDA, the Commissioner was required to refer the complaint to the President.

12                  Subsection 101(1) of the DDA provided that if a complaint was referred to the President under subs 71(5) of the DDA, the President might, without holding an inquiry, dismiss the complaint in a number of listed circumstances. 

13                  Subsection 101(2) of the DDA provided that if the President did not dismiss a complaint referred to him or her under subs 101(1) of the DDA, then the President was required to refer the complaint to the Commissioner for the Commissioner to continue to inquire into the alleged unlawful act under s 71 of the DDA.

14                  As of 13 April 2000, the Commissioner had referred Mr Charles’s complaint to the President, but the President had not yet decided whether to dismiss the complaint or instead refer it back to the Commissioner.

15                  On that day, the substantive provisions of the Human Rights Legislation Amendment Act (No 1) 1999 (Cth) (“the amending Act”) commenced.  Section 3 of, and items 24 and 25 of Sch 1 to, the amending Act had the effect of repealing (among other provisions) par 67(1)(a) and ss 68, 69, 71 and 101 of the DDA.  Section 10 of the amending Act, a transitional provision, applied to complaints which, on 13 April 2000, were in the situation in which Mr Charles’s complaint then was.  Subsection 10(2) of the amending Act provided that, on 13 April 2000, the President was taken to have terminated the complaint under s 46PH of the HREOCA, a section which was added to the HREOCA by s 3 of, and item 61 of Sch 1 to, the amending Act.   Subsection 14(1) of the amending Act, another transitional provision, provided that if the President was taken to have terminated a complaint under s 10 of the amending Act, then the President was required to notify the complainant in writing of the termination and the reasons for it.

16                  (I draw attention, incidentally, to subs 14(4) of the amending Act, which provided that the President was not required to notify any person under s 46PH of the HREOCA.  In my view, that subsection was expressed elliptically.  What was meant was that the President was not required to notify any person under s 46PH of the HREOCA, because a notification under subs 14(1) of the amending Act was taken to be a notification under subs 46PH(2) of the HREOCA.  I note that if, instead of reading subs 14(4) of the amending Act in the way which I have just described, one were to read it literally, that would mean, in light of the terms of subs 46PO(1) of the HREOCA, referred to in [18] below, that a person whose complaint was in the situation in which Mr Charles’s complaint was as of 13 April 2000, would have been unable thereafter to make an application to this Court under the latter subsection.  It is because such an outcome would be so obviously contrary to the plain legislative intent (see, for instance, the discussion, in the Senate explanatory memorandum for the Bill which became the amending Act, of the clause which became s 14 of the amending Act) that I read subs 14(4) of the amending Act in the way which I have described above.)

17                  On 13 April 2000, the President wrote to Mr Charles, informing him of the deemed termination of his complaint on that day by virtue of the amending Act and alerting him to his ability to make application to this Court under subs 46PO(1) of the HREOCA, a section which (like s 46PH) was added to the HREOCA by s 3 of, and item 61 of Sch 1 to, the amending Act.  (The President’s letter did not refer to an ability to make application to the Federal Magistrates Court under subs 46PO(1) of the HREOCA, since there existed no such ability at that time, that Court not yet having begun operation.  The provision was afterwards amended to include such ability.)

18                  Subsection 46PO(1) of the HREOCA now relevantly provides that if a complaint has been terminated by the President under s 46PH of the HREOCA and the President has given a notice under subs 46PH(2) of the HREOCA in relation to the termination, then the person on whose behalf the complaint was lodged may make an application either to this Court or to the Federal Magistrates Court, alleging unlawful discrimination under the DDA by the respondent to the terminated complaint.

19                  As I mentioned at the outset of these reasons, on 11 May 2000, Mr Charles began the present proceeding under subs 46PO(1) of the HREOCA.

20                  I return now to Fuji Xerox’s notice of motion seeking (relevantly) an order that “[t]he complaint the subject of the proceeding[ ] covers the period [from] 4 April 1998 to 3 April 1999”.

21                  I point out immediately that that order as set out in the notice of motion does not accurately describe the relief which Fuji Xerox has actually sought from me.  What it has actually sought from me is a decision that this Court will not determine in the present proceeding any allegation by Mr Charles against Fuji Xerox of the doing of an act constituting unlawful disability discrimination in employment by it, unless that act is alleged to have been done between 4 April 1998 and 3 April 1999.  That is the way in which Fuji Xerox argued its motion before me and accordingly, that is the way in which I propose to deal with that motion.  At the same time, however, an essential part of Fuji Xerox’s case for the granting of the relief which it has actually sought from me depends on an argument which it makes about the extent of the effectiveness of Mr Charles’s complaint of 3 April 1999 to the Commission and so it will be necessary in the first instance to consider whether Mr Charles’s complaint to the Commission effectively covered only the period from 4 April 1998 to 3 April 1999.

22                  I will deal first with the question whether Mr Charles’s complaint to the Commission effectively covered only a period which began on 4 April 1998.

23                  It was submitted by Fuji Xerox that one effect of the now repealed par 71(2)(c) of the DDA, the terms of which I have already set out in [7] above, had been that Mr Charles’s complaint to the Commission had, when made, effectively covered only a period which began on 4 April 1998, in other words, a period beginning twelve months before the date of lodging of the complaint.  Another effect of the provision was submitted to have been that if, but only if, the Commissioner had made a positive decision, after receiving Mr Charles’s complaint, to inquire into any act of unlawful disability discrimination in employment alleged in it to have been done before 4 April 1998, then Mr Charles’s complaint would have become additionally effective so far as such allegation was concerned.  However, since the Commissioner had made no such positive decision in the present case, the effectiveness of Mr Charles’s complaint to the Commission remained as it had been at the instant of its lodging, namely, that it covered only a period which began on 4 April 1998.

24                  It was further submitted by Fuji Xerox that its contentions as to the effect of par 71(2)(c) of the DDA were supported by the decision of Levine J of the New South Wales Supreme Court in McAuliffe v Puplick (1996) EOC ¶92-800.

25                  I reject Fuji Xerox’s submissions about the effect of par 71(2)(c) of the DDA.  In my view, in so far as Mr Charles’s complaint of 3 April 1999 alleged against Fuji Xerox any act of unlawful disability discrimination in employment by it which had been done before 4 April 1998, it was a fully effective complaint from the instant of its making and par 71(2)(c) of the DDA did not require the contrary conclusion to be reached.

26                  To my mind, far from assisting Fuji Xerox’s position, the McAuliffe case on which it relied detracted from that position, because that case provided an example of a contrasting legislative scheme which did achieve an effect of the type that Fuji Xerox contended had been achieved by par 71(2)(c) of the DDA.

27                  The legislation under consideration in that case was the Anti-Discrimination Act 1977 (NSW) (“the A-DA”), s 88(3) of which provided, “[A] complaint shall be lodged within 6 months after the date on which the contravention of the Act or the Regulations which is the subject of that complaint is alleged to have been committed”.  However, s 88(4) of the A-DA further provided, “Notwithstanding subsection 3, the President, on good cause being shown, may accept a complaint which is lodged more than 6 months after the date referred to in that subsection”.   As was said by Levine J in McAuliffe (at 78,923), s 88(4) of the A-DA “confers a power which enables an exemption from the command in s 88(3) that a complaint should be lodged within 6 months after the date on which the contravention is alleged to have been committed”. 

28                  The scheme created by the DDA was in contrast to that created by the A-DA.  Rather than creating a time bar and then providing for a positive decision to exempt a complaint from that time bar, the DDA created no time bar, but then provided in par 71(2)(c) for a positive decision not to inquire into a particular complaint on the ground of its staleness.  Thus, a DDA complaint was effective, no matter how stale the allegations of fact in it, unless and until the Commissioner positively decided on the ground of staleness not to inquire into it.

29                  I will deal next with the question whether Mr Charles’s complaint to the Commission effectively covered only a period which ended on 3 April 1999.

30                  It is apparent that, when made, Mr Charles’s complaint must logically have effectively covered only a period which ended on 3 April 1999, the day of its making.  (Compare MacDonald v Puplick (NSWSC, 12 June 1998, unreported), in which Simpson J took a similar approach to a complaint under the A-DA.) Furthermore, at all relevant times, the DDA contained no express provision permitting the amendment in any respect of a complaint subsequent to its making: compare s 46PA of the HREOCA, added to the HREOCA by s 3 of, and item 61 of Sch 1 to, the amending Act.  In any event, there is no evidence before me that Mr Charles sought to amend his complaint to the Commission in any respect before it was deemed by subs 10(2) of the amending Act to have been terminated.  I therefore accept that Mr Charles’s complaint to the Commission must effectively have covered only a period which ended on 3 April 1999.

31                  Thus far, I have been considering the question whether Mr Charles’s complaint to the Commission effectively covered only a period from 4 April 1998 to 3 April 1999 and have concluded that, although Mr Charles’s complaint to the Commission effectively covered only a period which ended on 3 April 1999, its effectiveness was not limited to a period which began on 4 April 1998.  However, that conclusion is by no means the end of the present matter, since I must now turn to consider the situation regarding Mr Charles’s application to this Court, as opposed to the situation regarding his complaint to the Commission.

32                  The first point to be made in that respect is that Fuji Xerox, which has filed points of defence to Mr Charles’s application, has not sought to rely in those points of defence on s 79 of the Judiciary Act 1903 (Cth), in so far as that statute might pick up and make applicable in the present proceeding any provision of the Limitation Act 1969 (NSW).  There is therefore no occasion for me to concern myself in these reasons with the difficult questions which would have been thrown up by such attempted reliance.

33                  The next point to be made in that respect is that Fuji Xerox has accepted before me (correctly, in my view) that this Court is able to determine in the present proceeding any allegation by Mr Charles of the doing by Fuji Xerox of an act constituting disability discrimination in employment, provided that that allegation does no more than duplicate an allegation effectively made in Mr Charles’s complaint to the Commission.

34                  A question arises, however, whether subs 46PO(3) of the HREOCA permits this Court to determine in the present proceeding any allegation by Mr Charles of the doing by Fuji Xerox after 3 April 1999 of an act constituting disability discrimination in employment.  That subsection provides:

“(3) The unlawful discrimination alleged in the application:

  (a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or

  (b) must arise out of the same (or substantially the same) acts … that were the subject of the terminated complaint.”

35                  Although that subsection only provides in terms for limits on what may be alleged in an application to this Court, I accept that it has the effect also of limiting by implication the ability of this Court to deal with allegations made in an application before it, including relevantly allegations of unlawful disability discrimination in employment.

36                  For the reasons which I give below, I do not consider that subs 46PO(3) of the HREOCA permits the Court in the present case to deal with any allegation by Mr Charles against Fuji Xerox of an act of unlawful disability discrimination in employment done by it after 3 April 1999.

37                  It appears to me that subs 46PO(3) of the HREOCA is only incidentally concerned with those allegations of fact which can be made in an application under subs 46PO(1) of the HREOCA; it is primarily concerned, not with such allegations, but rather with the legal character which those allegations of fact can be claimed to bear.  In the two situations with which it deals, it permits an applicant in a proceeding before the Court to claim that the facts alleged against the respondent constitute unlawful discrimination of a different legal character than the unlawful discrimination which was claimed in the relevant terminated complaint.

38                  Paragraph (a) of subs 46PO(3) of the HREOCA proceeds on the basis that the allegations of fact being made in the proceeding before the Court are the same as those which were made in the relevant terminated complaint.  The provision naturally permits the applicant to claim in the proceeding that those facts bear the same legal character as they were claimed in the complaint to bear.  However, it goes further, permitting the applicant to claim in the proceeding as well that those facts bear a different legal character from that they were claimed in the complaint to bear, provided, however, that the legal character now being claimed is not different in substance from the legal character formerly being claimed.

39                   Paragraph (b) of subs 46PO(3) of the HREOCA, on the other hand, permits the applicant to allege in the proceeding before the Court different facts from those which were alleged in the relevant terminated complaint, provided, however, that the facts now being alleged are not different in substance from the facts formerly being alleged.  It further permits the applicant to claim that the facts which are now being alleged bear a different legal character than the facts which were alleged in the complaint were claimed to bear, even if that legal character is different in substance from the legal character formerly being claimed, provided that that legal character “arise[s] out of” the facts which are now being alleged.

40                  It is worth recording here that, although the Senate explanatory memorandum for the Bill which became the amending Act did not elaborate on the intended operation of the proposed par 46PO(3)(a) of the HREOCA, it did elaborate on the intended operation of the proposed par 46PO(3)(b) of the HREOCA, saying,

“This second limb is intended to cover situations in which different instances of unlawful discrimination arise out of essentially the same factual circumstances.  For example, an Asian woman may make a complaint to HREOC alleging that her dismissal from employment amounted to discrimination on the ground of her sex.  On the basis of things said or done during the inquiry or conciliation process, the woman may form the view that her dismissal also amounted to discrimination on the ground of her race.  If the complaint cannot be conciliated and is terminated, and the woman makes an application to the Federal Court in respect of the terminated complaint, this paragraph may permit her to allege racial discrimination in that application.”

It appears to me that the first limb of subs 46PO(3) of the HREOCA was likely to have been intended to cover situations in which, for instance, a person makes a complaint to the Commission of the doing of an act constituting unlawful disability discrimination in employment, which complaint cannot be conciliated and is terminated, and the person then makes an application to this Court in respect of the terminated complaint, claiming instead, but on the basis of the same allegations of fact, unlawful disability discrimination in contract work (see s 17 of the DDA).

41                  On the construction which I give to subs 46PO(3) of the HREOCA, it is apparent that par (a) thereof provides no warrant for an applicant in a proceeding in this Court to make any allegation of fact in the proceeding different from those which were made in the applicant’s earlier complaint to the Commission.  On the other hand, par (b) thereof does permit an applicant in a proceeding in this Court to make allegations of fact in the proceeding different to a certain extent from those which were made in the applicant’s earlier complaint to the Commission.  However, I find nothing, either in the language of par (b) itself or in the example of its operation given in the Senate explanatory memorandum, in so far as that example reveals a legislative intent regarding the operation of par (b), which would support a construction of the paragraph that permitted Mr Charles to allege in the present proceeding the doing by Fuji Xerox after 3 April 1999 of any act constituting unlawful disability discrimination in employment. 

42                  I add that a construction of subs 46PO(3) of the HREOCA which does not permit Mr Charles to allege in the present proceeding the doing by Fuji Xerox after 3 April 1999 of any act constituting unlawful disability discrimination in employment appears to me to be consistent with the policy of the HREOCA of ensuring that there exists an opportunity for the attempted conciliation of complaints before they are litigated: compare subss 46PF(1) and (4) of the HREOCA.  (A similar policy of ensuring an opportunity for attempted conciliation in the first instance was also apparent in the DDA before its amendment by the amending Act.)  I note in that connection the following exchange when the Opposition sought to amend in the House of Representatives, after its second reading, the Bill which became the amending Act.  The Opposition spokesman moved (see HR Hansard, 11 March 1999, p 3754) an amendment whose effect he described as being “to enable complainants to amend a complaint before the Federal Court proceedings, even though that particular issue may not have been dealt with in the commission”.  The justification which he offered for the proposed amendment was as follows:

“These matters of discrimination can be flexible in the sense that events can occur which are part of an ongoing process of discrimination but may not themselves have been pleaded or raised in the conciliation proceedings.  So we say it is appropriate for a complainant to be able to amend the complaint after conciliation and before commencement in the Federal Court.”

 The Government rejected that proposed amendment, the Attorney General saying (see HR Hansard, 11 March 1999, p 3755),

“The government disagrees that there should be a power to add further allegations of discrimination after a matter has been determined in the commission and prior to applying to the Federal Court.  This is consistent with the policy of requiring discrimination complaints to go through the HREOC conciliation process.”

43                  I add further that a construction of subs 46PO(3) of the HREOCA which does not permit Mr Charles to allege in the present proceeding the doing by Fuji Xerox, particularly after 11 May 2000 (the date on which the present proceeding was begun), of any act constituting unlawful disability discrimination in employment would also be consistent with a longstanding judicial approach to litigation.  That approach is that a moving party is prevented from relying in a proceeding on a cause of action accruing after the commencement of the proceeding.  

44                  That approach was exemplified by Mason J in Wigan v Edwards (1973) 1 ALR 497 (HCA).  Wigan was a case in which plaintiffs had obtained a verdict in the District Court of Queensland on a cause of action which had only arisen after the commencement of their action and which they had been permitted to amend their plaint to add.  Mason J said (at 515),

“To succeed a plaintiff must establish his cause of action at the date of the plaint, for that is the origin of the action.  …

Although the District Court is not a strict court of pleading there is no good reason for concluding that in the absence of appropriate statutory provision, or the consent of the defendant, the [plaintiffs] could succeed in obtaining a judgment on a cause of action which had not accrued at the date of the plaint.  Rule 104(b) of the District Courts Rules 1966 (Qld) allows a ‘new cause of action’ to be added by amendment, but I read it as meaning a cause of action ‘different’ from that already pleaded, and not new in the sense of a cause of action accruing after filing of the plaint.  Now that it appears that the cause of action pleaded in paragraph 6A arose after the date of the plaint, it is my opinion that the amendment should not have been allowed and that the [plaintiffs] must fail.”

45                  In the result, the conclusion which I have reached is that this Court is unable to determine in the present proceeding any allegation by Mr Charles against Fuji Xerox of the doing by it after 3 April 1999 of any act constituting unlawful disability discrimination in employment.  This Court is, however, able to determine any allegation by Mr Charles against Fuji Xerox of the doing by it before 3 April 1999 of any act constituting unlawful disability discrimination in employment, the doing of which act he has alleged in his complaint to the Commission.  I will give a direction giving effect to that conclusion.

46                  As Fuji Xerox has been only partly successful in obtaining the relief which it has sought on its motion, I consider that there should be no order as to the costs of its motion.

47                  There is one final matter with which I wish to deal in these reasons.  I have already mentioned above that at the time at which Mr Charles began his proceeding in this Court, he was unable to do so instead in the Federal Magistrates Court, but that the Federal Magistrates Court has since begun operation and now has jurisdiction in matters like the present proceeding.  The existence of that alternative forum led me to raise with the parties during the hearing of Fuji Xerox’s motion the question whether I should exercise the power conferred on me by subs 32AB(1) of the Federal Court of Australia Act 1976 (Cth) to transfer the present proceeding to that Court.  In the result, both parties were content that I should do so.  Having had regard to the matters referred to in subs 32AB(6) of the Act, I have decided to do so.  In particular, I am satisfied that the resources of that Court are sufficient to hear and determine the proceeding and to do so sooner than could be done by me.  I am also satisfied that the parties will both be benefited by having the proceeding heard by that Court, not only by reason of an earlier determination of the proceeding, but also by reason of reduced expo-

sure to costs in that Court as compared to this Court.

Associate:

Date:                30 October 2000