FEDERAL COURT OF AUSTRALIA

Baird v State of Queensland [2005] FCA 1516

DISCRIMINATION LAW/RACIAL DISCRIMINATION – Limitations of Actions – whether the Applicants’ complaint to the Human Rights and Equal Opportunity Commission gives rise to a cause of action – whether the applicants’ cause of action for unlawful discrimination is statute barred.

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

Racial Discrimination Act 1975 (Cth) ss 9, 15

Limitation of Actions Act 1974 (Qld) s 10

Sullivan v Oil Company of Australia Ltd (2002) 2 QdR 94 distinguished

JAMES STANLEY BAIRD, MARIE CREEK, FRANK TAYLEY, HENRY WALKER, HENRY DEERAL, EDGAR IVAN GIBSON, ANITA KAREN GORDON AND ELLA WOIBO v STATE OF QUEENSLAND

Q 91 OF 2003

DOWSETT J

30 AUGUST 2005

BRISBANE

REASONS FOR JUDGMENT

1                     I have previously delivered my reasons for judgment in this matter.  However I omitted to deal with one matter, namely the respondent’s submission that the claims were statute-barred by virtue of the operation of the Limitation of Actions Act 1974 (Qld) (the “Limitations Act”).  For present purposes I assume, without deciding, that the Limitations Act applies to claims made under Commonwealth legislation and that the relevant limitation period is six years as prescribed by par 10(1) of that Act which provides that:

‘The following actions shall not be brought after the expiration of 6 years from the date on which the cause of action arose -

(a)       …

(b)       …

(c)        …

(d)        an action to recover a sum recoverable by virtue of any enactment, other than a penalty or forfeiture or sum by way of a penalty or forfeiture.’

2                     The relevant question is when ‘the cause of action arose’, but that question necessitates consideration of the meaning of the expression “cause of action”.  The Queensland Court of Appeal considered both questions in Sullivan v Oil Company of Australia Ltd (2002) 2 QdR 94.  At [41] – [44] Muir J cited the following propositions and authorities:

‘In Do Carmo v Ford Excavations Pty Ltd, Wilson J. said:

“The concept of a ‘cause of action’ would seem to be clear.  It is simply the fact or combination of facts which gives rise to a right to sue.  In an action for negligence, it consists of the wrongful act or omission and the consequent damages:  cf. Cooke v. Gill …; Read v. Brown (1888) 22 Q.B.D. 128, at 131.”

Lord Diplock gave this explanation in Letang v. Cooper:

“A cause of action is simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person.”

In Read v. Brown, Lord Esher M.R., discussing the meaning of “cause of action” observed:

“It has been defined in Cook v. Gill Law Rep. 8 C.P. 107 to be this:  every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court.  It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved.”

de Jersey C.J. in R. v. Chong, ex parte Chong referred to the same passage from Lord Esher’s reasons with approval.’

3                     The present proceedings were commenced pursuant to s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (the “HR Act”) which provides: 

‘Application to court if complaint is terminated

(1)       If:

(a)        a complaint has been terminated by the President under section 46PE or 46PH; and

(b)        the President has given a notice to any person under subsection 46PH(2) in relation to the termination;

any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Magistrates Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.

Note:      Part IVA of the Federal Court of Australia Act 1976allows representative proceedings to be commenced in the Federal Court in certain circumstances.

(2)       The application must be made within 28 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows.

(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, omissions or practices that were the subject of the terminated complaint.

(4)       If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:

(a)       an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;

(b)       an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;

(c)        an order requiring a respondent to employ or re-employ an applicant;

(d)       an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;

(e)        an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;

(f)        an order declaring that it would be inappropriate for any further action to be taken in the matter.

(5)       In the case of a representative proceeding under Part IVA of the Federal Court of Australia Act 1976, subsection (4) of this section applies as if a reference to an applicant included a reference to each person who is a group member (within the meaning of Part IVA of the Federal Court of Australia Act 1976).

(6)       The court concerned may, if it thinks fit, grant an interim injunction pending the determination of the proceedings.

(7)       The court concerned may discharge or vary any order made under this section (including an injunction granted under subsection (6)).

(8)       The court concerned cannot, as a condition of granting an interim injunction, require a person to give an undertaking as to damages.’

4                     Pursuant to s 3, the word “complaint” means ‘…except in Part IIC … a complaint lodged under Division 1 of Part IIB.’  Part IIC is not relevant for present purposes.  In Division 1 of Part IIB, s 46P(1) provides that ‘A written complaint may be lodged with the Commission, alleging unlawful discrimination.’  The “Commission” is the Human Rights and Equal Opportunity Commission.  The expression “unlawful discrimination” is defined in s 3 to mean:

‘…any acts, omissions or practices that are unlawful under:

…

(a)       … or

(b)       Part II or IIA of the Racial Discrimination Act 1975; or

(c)        …;

and includes any conduct that is an offence under:

…

(d)       …

(e)        subsection 27(2) Racial Discrimination Act 1975; or

(f)        …’

5                     The applicants allege racial discrimination contrary to s 9 of the Racial Discrimination Act 1975 (Cth) (the “RD Act”) and discrimination in employment contrary to s 15 of that Act.  Although discriminatory conduct based on race is made unlawful by the RD Act, that Act makes no provision for redress in connection with such conduct.  Such redress must be sought under the HR Act.  The applicants complained to the Commission pursuant to s 46P, the second to eighth applicants on 5 February 2002, and the first applicant, in March 2003.  Pursuant to s 46PF, the President of the Commission must investigate such a complaint and attempt to “conciliate” it.  Section 46PH provides for termination of complaints as follows:

‘(1)      The President may terminate a complaint on any of the following grounds:

(a)       the President is satisfied that the alleged unlawful discrimination is not unlawful discrimination;

(b)       the complaint was lodged more than 12 months after the alleged unlawful discrimination took place;

(c)        the President is satisfied that the complaint was trivial, vexatious, misconceived or lacking in substance;

(d)       in a case where some other remedy has been sought in relation to the subject matter of the complaint—the President is satisfied that the subject matter of the complaint has been adequately dealt with;

(e)        the President is satisfied that some other more appropriate remedy in relation to the subject matter of the complaint is reasonably available to each affected person;

(f)        in a case where the subject matter of the complaint has already been dealt with by the Commission or by another statutory authority—the President is satisfied that the subject matter of the complaint has been adequately dealt with;

(g)       the President is satisfied that the subject matter of the complaint could be more effectively or conveniently dealt with by another statutory authority;

(h)       the President is satisfied that the subject matter of the complaint involves an issue of public importance that should be considered by the Federal Court or the Federal Magistrates Court;

(i)        the President is satisfied that there is no reasonable prospect of the matter being settled by conciliation.

(2)       If the President decides to terminate a complaint, the President must notify the complainants in writing of that decision and of the reasons for that decision.

(3)       On request by an affected person who is not a complainant, the President must give the affected person a copy of the notice that was given to the complainants under subsection (2).

(4)       The President may revoke the termination of a complaint, but not after an application is made to the Federal Court or the Federal Magistrates Court under section 46PO in relation to the complaint.’

6                     The relevant complaints were terminated on 21 March 2003.  The applicants then applied to the Court pursuant to s 46PO, which section is set out above.

7                     Clearly, the power of the Court to grant any relief, including the specific kinds of relief identified in pars 46PO(4)(a) to (f), is derived from s 46PO itself.  No such power is conferred on the Commission or the President, although the various matters identified in those paragraphs might well be considered in the conciliation process.  Prima facie, I would infer that no cause of action arose in favour of the present applicants until the President terminated the complaints.  However it might be argued that Sullivan is authority to the contrary.

8                     In Sullivan, the Court of Appeal considered the application of par 10(1)(d) of the Limitations Act to a claim for compensation by a land owner against the holder of mining titles affecting the land in question.  The relevant legislation conferred such an entitlement upon the landholder.  The relevant legislation also provided that a party might apply to the mining warden for determination of the amount of compensation payable ‘if within such time as may be prescribed the parties are unable to agree upon the amount of compensation to be paid …’.  The Court considered that a cause of action to recover compensation accrued to the landholder prior to any negotiation as to the amount.

9                     The decision in Sullivan depended upon the proper construction of the relevant sections.  A right to compensation was clearly created, which right was independent of the contemplated negotiations.  In the present case, there is no suggestion in the HR Act that any right to relief existed prior to the termination of the complaint.  In my view, a cause of action accrued to each applicant at the time of such termination.  It follows that the proceedings are not statute-barred.

10                  I should point out that the RD Act previously contained provisions for enforcement and sanctions.  Those provisions may have entitled the applicants to seek relief.  However they were removed from the RD Act and replaced by the provisions in the HR Act, to which I have referred.  No argument has been advanced on behalf of the respondent based upon the operation of those earlier provisions.

Associate:

Dated:              27 October 2005