FEDERAL COURT OF AUSTRALIA

Foster v State of Queensland [2006] FCA 1680

PRACTICE AND PROCEDURE – application for leave to appeal from an order granting a permanent stay pursuant to Order 20, rule 2(1)(c) of the Federal Court Rules, of particular claims in two proceedings – consideration of whether the effluxion of time in conjunction with the dissipation of evidence probative of aspects of the controversy of fact gives rise, objectively, to an abuse of process. 

HUMAN RIGHTS – RACIAL DISCRIMINATION – consideration of ss 9 and 15 of the Racial Discrimination Act 1975 (Cth) – consideration of the essential integers comprising a contravention of s 9 of the Racial Discrimination Act 1975 (Cth) – consideration of Baird v State of Queensland [2006] FCAFC 162.

Federal Court of Australia Act 1976 (Cth), s 24(1A)

Human Rights and Equal Opportunity Commission Act 1986 (Cth), s 46 PO

Racial Discrimination Act 1975 (Cth), ss 9 and 15

Aborigines Act 1971 (Qld)

Federal Court Rules, Order 20, rule 2(1)(c)

Décor Corporation Pty Ltd v Dart Industries Inc. (1991-1992) 33 FCR 397

Baird v State of Queensland [2006] FCAFC 162

NBGM v Minister for Immigration and Multicultural Affairs [2006] HCA 54

Baird v State of Queensland (No. 1) (2006) 224 ALR 541

Batistatos v Road and Traffic Authority of New South Wales; Batistatos v Newcastle City Council (2006) 227 ALR 425

Hunter Valley Developments Pty Ltd v Cohen (1994) 3 FCR 344

FOSTER & ANOR v STATE OF QUEENSLAND AND BETWEEN BISMARK & ORS v STATE OF QUEENSLAND

QUD420 OF 2006

GREENWOOD J

5 DECEMBER 2006

BRISBANE

THE COURT ORDERS THAT:

1.                  Leave be granted to the applicants to appeal from the order of her Honour Justice Collier made on 28 September 2006 which effects a permanent stay of proceedings brought by each of the applicants in QUD279 of 2004 and QUD389 of 2005 of claims based upon allegations of discrimination against each of them pursuant to ss 9 and 15 of the Racial Discrimination Act 1975 (Cth), in relation to the claim made by the applicants in QUD279 of 2004 and QUD389 of 2005 that the respondent discriminated against each of them in contravention of s 9 of the Racial Discrimination Act 1975 (Cth) through the payment by the respondent to any manifestation of the Christian Brethren Church including the Christian Brethren of Australia Inc. of grants for the payment of the applicants’ wages that were based on race and resulted in the applicants receiving wages which were at a rate less than that to which they were entitled. 

2.                  Leave be granted to the applicants to extend time for the filing of the application for leave to appeal until 20 October 2006.

3.                  The costs of and incidental to the application for leave to appeal and the application for leave to extend time be costs in the cause.

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

REASONS FOR JUDGMENT

1                     I have before me an application by Notice of  Motion filed on 19 October 2006 by Daphne Foster and Christine Ned for an order that the applicants be granted leave to appeal pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) from a stay order made by her Honour Justice Collier on 28 September 2006 in respect of a proceeding before the Court, namely, QUD389 of 2005 in which the applicants on the Notice of Motion are applicants in the proceeding together with David Douglas and Gregory Douglas; and an application for leave to appeal from a stay order made in proceeding QUD279 of 2004 in which all four applicants in proceeding QUD389 of 2005 are also applicants together with 13 other applicants.  

2                     The relief sought in each of the substantive proceeding brought against the State of Queensland (‘the State’) pursuant to s 46 PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (the H R E O C’ Act) includes a declaration that the State engaged in an act of discrimination against each of the applicants pursuant to ss 9 and 15 of the Racial Discrimination Act 1975 (Cth) (‘the R D Act); an apology be given to each applicant; damages of $500,000 be awarded; interest upon that award; and costs of the proceeding. 

3                     The claims of each applicant concern a period between 1975 and 1986 when each applicant was allegedly paid wages which were lower than wages paid to other employees at the time or lower than the prevailing award rate of wage.  The differential treatment in the payment of wages is said to be based upon the Aboriginal race of each employee.

4                     The applicants on the Notice of Motion also seek an order that the time for filing of the Notice of  Motion be extended until Friday, 20 October 2006.

5                     The declaration sought by the applicants in each substantive application is in these terms:

(a)        a declaration that the State discriminated against each of the applicants pursuant to ss 9 and 15 of the R D Act in their employment with the State between 1975 and 1986; and/or

(b)        that the State discriminated against each of the applicants through the payment by the State to a church described as the Christian Brethren Church of grants for the payment of wages to the applicants based on race and which resulted in the applicants receiving wages which were at a rate less than that to which they were entitled.

6                     A second respondent to each of the substantive proceedings is an entity described as Christian Brethren of Australia Inc.  It is common ground that neither that entity (which is either misdescribed or no longer exists) nor any other entity representative of the Christian Brethren Church is a participant in the proceedings. 

7                     The only respondent is the State of Queensland. 

8                     Each substantive application seeks relief in respect of a controversy of fact which canvasses a period from 1975 to 1986 during which an Aboriginal Reserve for the purposes of the Aborigines Act 1971 (Qld) described as the Doomadgee Reserve was placed by the Governor‑in‑Council under the management of the Christian Brethren Church.  The applicants in the proceeding contend that the Christian Brethren Church as manager of the Doomadgee Mission was subject to the direction of the Minister and the Director of the Department of Aboriginal and Island Affairs and its successors; the State determined the policies applicable to the employment of Aborigines on reserves; the State determined the amount to be paid in wages to each applicant through the Christian Brethren Church or, alternatively,  the Aboriginal Council, in accordance with Cabinet decisions of the State; the State paid grants to the Christian Brethren Church or the Aboriginal Council four times per annum representing wages the State determined ought to be paid to the applicants; the amount of the grants paid by the State were, in part at least, based upon the Aboriginality of the applicants; the State knew and understood that the amount of the grants would be determinative of the wages in fact paid to the applicants; and that the payment of lower wages to Aboriginal applicants constituted a differential treatment ‘based upon race’ in respect of the same tasks and work undertaken by the applicants as compared with others and thus a contravention of ss 9 and 15 of the R D Act is said to arise. 

9                     Having regard to the effluxion of time between the period of the events and the prospective trial of the action in February 2007 and the lack of integrity in the evidence in the sense that the respondent contends that it is now not possible to test the central question of whether lower rates of wage payments were in fact made to Aboriginal recipients as compared with others as no records of wage payments now exist, the respondent brought an application before her Honour for an order that each proceeding be stayed pursuant to Order 20, r 2(1)(c) of the Federal Court Rules on the footing that either the proceeding generally or, alternatively, particular claims made in the proceeding, constitute an abuse of the process of the Court. 

10                  Having reviewed the contentions of the parties and the evidence adduced on the Application, her Honour in a careful and thoughtful judgment reached a conclusion that aspects of each substantive proceeding ought to be stayed.  Her Honour’s order is in these terms:

‘The proceedings brought by each of the applicants in QUD279 of 2004 and QUD389 of 2005 be permanently stayed to the extent that the applicants are claiming that the respondent discriminated against each of them pursuant to s 9 and s 15 of the Racial Discrimination Act 1975 (Cth) through the payment by the respondent to any manifestation of the Christian Brethren, including the Christian Brethren of Australia Inc of grants for the payment of the applicants’ wages that were based on race and resulted in the applicants receiving wages which were at a rate less than that to which they were entitled’.

11                  Apart from the contentions reflected at [8] of these reasons, her Honour also considered a further element of the claims of the applicants in each of the substantive proceedings concerning allegations of discrimination in contravention of the R D Act by the State in respect of a direct employment relationship between some of the applicants and the State during the period 1975 to 1986.  Her Honour understood that having regard to the record‑keeping facilities of the State in respect of that direct employment relationship and the records already tendered in evidence, the effluxion of time would not result in the proposed trial of those contentions being characterised as an abuse of process, according to principle. 

12                  Accordingly, her Honour determined, in effect, that to the extent that the applicants’ claim that the State discriminated against each of them pursuant to ss 9 and 15 of the R D Act between 1975 and 1986 by engaging in relevant acts involving a discriminatory elements in aspects of a direct employment relationship, that claim ought to proceed to trial. 

13                  Accordingly, a controversy of fact concerning the conduct of the State in relation to contentions of discrimination in contravention of ss 9 and 15 of the R D Act in wage payments in the period 1975 to 1986 at least in the context of a contended direct employment relationship between some of the applicants and the State and the contextual circumstances giving rise to the structural arrangements pursuant to which the State assumed a role and engagement in relevant employment, is to be determined by the tribunal of fact, in any event. 

14                  That part of the controversy going to the question of whether the State was an indirect or constructive employer of the applicants in the substantive proceedings and whether the State discriminated in a way which represents an expression of a contravention of ss 9 and 15 of the R D Act in the making of grants to the grant recipients which involved appropriations by the State for the payment of grants which, in part, included the payment of wages to Aboriginal employees at Doomadgee, is stayed by operation of her Honour’s order.

15                  The applicants seek leave to appeal from the whole of her Honour’s judgment on the following grounds:

‘GROUNDS OF APPEAL

1.         The learned primary judge erred in concluding that because of the effluxion of time, the causal link between the payment of the grants, the sums involved, and the level of wages received by the applicants is not evident, and evidence which could not be given on behalf of the respondent and witnesses who could provide insight into the management of the Doomadgee Mission and the employment of the applicants at  the relevant time is no longer available;

2.         The learned primary judge erred in finding that the substantive claims of the appellants do not distinguish in any material effects between acts of the respondent said to breach s 9 of the Racial Discrimination Act 1975 and those said to breach s 15 of the Racial Discrimination Act 1975.

3.         The learned primary judge erred in concluding that both claims pursuant to s 9 and s 15 of the Racial Discrimination Act as framed by the appellants rely on the establishment of an employment relationship between themselves and the respondent.

4.         The learned primary judge erred in concluding that it is difficult to separate the claims of the applicants that the respondent has breached s 9 of the Racial Discrimination Act 1975 from their claims in respect of s 15 of the Racial Discrimination Act 1975.’

16                  In seeking leave to appeal, the applicants must demonstrate in accordance with the well known passage from Décor Corporation Pty Ltd v Dart Industries Inc. (1991-1992) 33 FCR 397 at pp 398 and 399 per Sheppard, Burchett and Heerey JJ, that her Honour’s decision is attended with sufficient doubt so as to warrant the decision being considered by the Full Court and whether substantial injustice would result if, supposing the decision to be wrong, leave is refused. 

17                  The applicants contend that her Honour’s decision is attended by sufficient doubt because her Honour erred in observing that the substantive claims relating to ss 9 and 15 of the R D Act do not distinguish in any material respect between the acts of the respondent said to reflect a contravention of s 9 of the R D Act and those acts said to found a contravention of s 15 of the R D Act and secondly, her Honour is said to have erred in finding that both claims as framed by the applicants by the Statement of Claim in each action relies upon the establishment of an employment relationship between the applicants and the State.  Her Honour’s observations are these:

‘143.    In my view it is difficult to separate the claims of the applicants that the respondents have breached s 9 from their claims in respect of s 15.  The substantive claims of the applicants do not distinguish in any material respects between acts of the respondent said to breach s 9 and those said to breach s 15.  Both claims as framed by the applicants rely on the establishment of an employment relationship between themselves and the respondent.

144.     This is demonstrated by the Application and Statement of Claim.  The applicants seek a declaration that the respondent discriminated against each of the applicants pursuant to s 9 and s 15 of the Act in their employment with the respondent between 1975 and 1986 and/or a declaration that the respondent discriminated against each of the applicants through the payment, to the Christian Brethren, of grants for the payment of the applicants’ wages that were based on race and resulted in the applicants receiving wages which were at a rate less than that to which they were entitled.’

18                  The applicants say that the claim based upon a contravention of s 9 of the R D Act does not rely upon the establishment of an employment relationship between the applicants and the State; that the cause of action derived from the broader prescription contained in s 9 of the R D Act is pleaded because the applicants concede a difficulty in showing any such employment relationship; and that the limitations confronting the applicants in demonstrating such a relationship is the reason the applicants have sought an alternative declaration that the State discriminated against each of the applicants by reason of the making of grants for the payment of the applicants’ wages ‘based on race’.  Further, the applicants say that her Honour erred in concluding that the claims based upon ss 9 and 15 were necessarily integrated and lacked any differentiation between the elements of each claim.

19                  The applicants contend that as a result, her Honour’s decision is attended with sufficient doubt such that the order for the stay ought to be considered by the Full Court and substantial injustice will flow to the applicants if leave is refused. 

20                  In oral submissions, I drew the attention of counsel for the applicants to the apparent concessions made before her Honour at paragraph 113 of the judgment in these terms:

’113.    At the hearing of 26 July 2006, Mr O’Gorman for the applicants conceded that the applicants were perhaps on weaker ground in relation to the application for the permanent stay under s 15, on the basis that what is required there, among other things, is evidence as to the arrangement between the church and the individual employees and the like.  Mr O’Gorman also acknowledged that without the availability of witnesses involved in the management of Doomadgee, it could well be that I might think it appropriate to permanently stay that part of the application relating to s 15.’

21                  I invited counsel to say whether the judgment accurately records that concession and whether that concession reflects the current position.  Mr O’Gorman acknowledged before me that the applicants’ claim is ‘a lot weaker in relation to section 15, that is, where there must be an employment relationship between the applicants and the respondent, that is, the State of Queensland.  And, in fact, I perhaps would go even further and indicate that it’s based on the decision of the Full Federal Court.  It would be my submission that the claim in relation to section 15 is very weak’.  I invited Mr O’Gorman to articulate what consequences flow from that observation.  Mr O’Gorman says that the s 9 claim ‘remains the primary claim’.  I invited Mr O’Gorman to say whether his clients contend that the stay order of Collier J in respect of the s 15 claim is attended by error.  Mr O’Gorman responded, ‘I don’t make any submissions in relation to section 15’. 

22                  Mr O’Gorman submitted that it may well be that the applicants would only pursue relief based upon s 9 of the R D Act as pursuing relief based upon s 15 would require additional evidence to be adduced to address the employment relationship and those matters do not need to be addressed as a matter of evidence in relation to the s 9 claim.  Mr O’Gorman says that he is not in a position to formally abandon a claim based upon s 15 because he does not have formal instructions to that effect. 

23                  So far as the claim based upon s 9 of the R D Act is concerned, the applicants rely upon the decision of the Full Court in Baird v State of Queensland [2006] FCAFC 162 per Spender, Allsop and Edmonds JJ, to the effect that an act of calculating and making payment of grants by the State to a body such as the Christian Brethren Church in circumstances where in part at least, the grant monies include the payment of below award wages to Aboriginal employees rather than award wages, or differential payment of wages to Aboriginal employees as compared with others undertaking the same work, may involve a distinction based on race which has an effect of impairing a right to equal payment as contemplated by s 9, without the necessity of establishing as an essential integer of s 9, an employment relationship between the applicants and the State. 

24                  The correct methodological approach to the construction of a provision such as s 9(1) of the R D Act which represents the adoption into Australian domestic law as a constitutionally valid enactment of International Convention obligations adopted either expressly in terms of the Convention or in a qualified or modified way, entered into by the Commonwealth of Australia, is set out by their Honours Callinan, Heydon and Crennan JJ in NBGM v Minister for Immigration and Multicultural Affairs [2006] HCA 54 (15 November 2006) (at [61]).  Section 9(1) of the R D Act is, in terms, broadly proscriptive of acts of a person involving differential treatment based on race which have the purpose or effect of impairing a defined human right.  In each substantive proceeding, the differential treatment is said by the applicants to be found in the making of a grant by the State based upon race which has the effect of impairing a right in Aboriginal employees of the Christian Brethren Church to equal pay for equal work.  The applicants say that the making of the grant reflects a discriminatory element which has the relevant effect.  The making of the grant is not to be seen simply as a parliamentary appropriation by a State as a matter of funding to a body such as the Christian Brethren Church administering funds in a way which reflects differential treatment by that body.  The discriminatory element coupled with the relevant effect is said to be found in the making of the grant itself.  For the purposes of the application for leave, I accept that the construct adopted by the applicants is consistent with the decision of the Full Court of this Court in Baird v State of Queensland. 

25                  The respondent says that a recognition that a contravention of s 9 of the R D Act does not require an employment relationship between the applicants and the State, is ultimately not to the point.  The real difficulty with the application for leave to appeal is said by the State to be that unlike the circumstances confronting the respondent in Baird v State of Queensland (No. 1) (2006) 224 ALR 541 where very similar claims were made by applicants in respect of two Missions located in far north Queensland known as ‘Hope Vale’ and ‘Wujal Wujal’, the State was able to test the central contention that grant monies were provided to the Lutheran Church which included wage payments to Aboriginal employees of the church that could be shown, with at least some degree of accuracy, to be payments to particular Aboriginal employees at a wage rate lower than the award or payments made to non‑Aboriginal employees undertaking the same work. 

26                  In these two proceedings, the State says that it is simply not possible to test, interrogate or forensically analyse payments made to particular individuals; the class of work undertaken or the comparative applicable award rates; the comparative position between payments made to the applicants and payments made to others to determine whether differential payments were made; and whether supplemental payments were made by the Christian Brethren Church from revenues derived from some commercial activities conducted by the church at the Doomadgee Mission such as the ‘shop’.  In that sense, the respondent is ‘embarrassed’ in the technical sense in the conduct of the case by reason of the effluxion of time in conjunction with the dissipation of evidence. 

27                  The applicants accept that the circumstances in relation to the claims made by the applicants in connection with the Doomadgee Mission are in material respects different to the circumstances confronting the State and the Court in connection with similar claims concerning the Hope Vale and Wujal Wujal Missions. 

28                  The difference is this. 

29                  The records in relation to wage payments are limited in relation to the Doomadgee Mission.  In the case of Hope Vale and Wujal Wujal Missions, evidence was able to be called from individuals associated with the Lutheran Church and individuals who had worked at each Mission.  That evidence provided direct evidence probative of the material facts in issue in the Baird proceeding.  In each of these proceedings, a number of the principal individuals associated with the events during the period 1975 to 1986 have died and although a very significant actor in the administration of the payments to the applicants in connection with the Doomadgee Mission, Mr Allan Hockey, lives at Cairns in north Queensland, the medical evidence presented before Collier J strongly suggested that Mr Hockey who is now 86, is confronting such serious health questions that he is prevented from giving evidence.  The medical evidence on that question suggests that Mr Hockey would not be in a position to sustain the burden of a Court appearance, cross examination and other aspects of the preparation of evidence to be given in the course of Court proceedings. 

30                  The applicants further say that it might ultimately be the position before the tribunal of fact that the applicants are unable to discharge the onus of proof in establishing the ‘impairing’ effect upon a ‘right to equal pay for equal work’ of the State making a grant reflecting a ‘distinction based on race’ as contemplated by s 9 of the R D Act by reason of differential wage payments.  However, the applicants say, in effect, that the difficulty presented by the absence of evidence from Mr Hockey and the paucity of records on actual payments made ought not to deprive the applicants as citizens of Australia under the rule of law of an opportunity of a dispositive determination of the justiciable controversy of fact in the exercise of the judicial power of the Commonwealth.  The applicants say that there is a properly formulated claim which is supported by a substantial body of evidence already filed in the proceedings.  Some of that evidence is directly probative of matters in issue.  Some of that evidence is probative of secondary facts from which inferences might be drawn concerning the primary facts in issue.  The evidence includes statements or affidavits filed by these individuals. 

(a)        Mr David Sutton.  Mr Sutton held the position of Senior Accounting Officer in the Department of Aboriginal and Island Affairs from 1971 to 1988 and who was responsible for the financial accounts relevant to the Department’s operations.  Mr Sutton was in regular consultation with the Director (the equivalent of the present Director‑General) and Deputy Director of the Department as to the financial affairs.  Mr Sutton, although in ill health, was examined and cross examined on his affidavit at a preservation of evidence hearing before Collier J on 21 March 2006.  Although her Honour observes that there do not appear to be any records remaining at Doomadgee Mission, Mr Sutton was the author of most of the correspondence between the Department and the relevant churches in connection with the various Missions between 1971 and 1980.  Her Honour reviews the scope and content of some of that evidence at paragraphs [89], [90] and [91].  The evidence is detailed and extensive.

(b)        Mr Patrick Killoran.  Mr Killoran was the Senior Public Servant, Director, in charge of the Department of Aboriginal and Island Affairs.  Mr Killoran is also in poor health and is not available for cross examination.  However, Mr Killoran has provided an affidavit in which he discusses the quarterly payment of Cabinet approved grants by the Department to churches conducting the management of various Aboriginal Missions including the Christian Brethren Church.  Mr Killoran talks about the process for assessing and taking account of expenditures and receipts for the calculation of grants; the administrative position adopted by the Department in its dealings with the churches concerning wage payments to Aboriginal workers at Doomadgee; the assumption of responsibility by the State for the management of the community at Doomadgee in 1983; and other matters. 

(c)        Sir Llewellyn Edwards.  Sir Llewellyn Edwards was the Minister for Health and subsequently Treasurer and Deputy Premier of Queensland.  Sir Llewellyn Edwards has provided a four page affidavit in which he describes funding for grants to church conducted Aboriginal communities; the entitlement of church bodies to spend grants as they saw fit and augment grants; the role independent of the State undertaken by the church at Doomadgee and other related matters. 

(d)        Mr Hugh Fawsett.  Mr Fawsett was Principal of Doomadgee Mission from 1956 until 1983.  Mr Fawsett has provided two affidavits which address matters in the period 1975 to 1983.  Mr Fawsett left Doomadgee in 1983.

(e)        Sir Leo Hielscher.  Sir Leo Hielscher was Under Treasurer in Queensland between 1974 and 1988.  He has sworn an affidavit in which he describes the role of the Government; the allocation of grants to churches conducting Aboriginal communities; the subsidisation of those activities by the State; and the assumption from 1983 by the State of the management of the Doomadgee Aboriginal Reserve. 

31                  In addition, the applicants say that there are a range of Cabinet documents which are classified but which are either in evidence or are able to be adduced into evidence which are directly relevant to these matters.  In particular, Cabinet submission 36007, Cabinet decision 40190, Cabinet submission 37862 and others. 

32                  Ms Evelyn Barker has sworn an affidavit with annexures in which she says that she worked as a volunteer at Doomadgee Mission from around mid 1979 until August 1983; that from time to time she assisted Mrs Eunice Hockey with tasks of developing the budget for Doomadgee and kept the Mission’s books and payment of wages.  From time to time Ms Barker made entries in the Mission book of accounts and wage books concerning payment of wages to Mission workers.  Ms Barker says that Mr and Mrs Hockey conducted the Mission and Ms Barker has no recollection at any time prior to 1983 of the State providing any direction as to how the Mission should be conducted. 

33                  Mr Shane O’Connor has sworn an affidavit in which he says that he was employed by the Department of Aboriginal and Island Affairs; he provided an interim management service to the church administration in approximately 1983 at Doomadgee Mission; that at that time he was instructed by Mr Killoran not to interfere with the administrative policy of the Mission; that one of his tasks was to oversee the preparation of the estimates of expenditure of the Mission; that the workforce at Doomadgee was under the management of the church; and that wages paid to Aboriginal workers was determined by the Christian Brethren Church and not the Department. 

34                  Mr Eric Porter has sworn an affidavit.  From 1987 to 2002 he held the positions of Principal Industrial Officer and Principal Industrial Relations Policy Officer in the Department of Employment, Vocational Education, Training and Industrial Relations and the Department of Industrial Relations respectively.  In 1986, he was a member of a team established by the Queensland Government to survey local authority functions undertaken by Aboriginal and Torres Strait Islander communities conducted both by the State and by churches.  He provided a report with detailed findings.  As part of the process he visited Doomadgee on 30 July 1986.  He has perused such records as are available and has provided a comparative table for the contended period of employment for each applicant to show wages received or an estimate of those wages, the applicable award, classification under the award and the wage rates applicable under the award together with increases in the rates during the relevant period. 

35                  An affidavit has been filed by Mr Maxwell Smith an officer and senior lawyer employed in the office of the Crown Solicitor for the State of Queensland.  Mr Smith has set out details of the history of the Doomadgee Mission from 1930 and in doing so he deposes to the contents of a number of Cabinet submissions and Cabinet decisions which presumably are relevant to the matters in issue but are not yet released for public scrutiny.  Mr Smith says that Christian Brethren church congregations were organisationally independent with no formal order of clergy and that although Mr Smith interviewed Mr Hockey about various matters, he did not have a clear recollection or in some cases any recollection of matters put to him. 

36                  An affidavit has been sworn and filed by Mr Lachlan Edmonds who deposes to time consuming searches undertaken at the Queensland State Archives.  Mr Edmonds has examined Cabinet documents relating to the Aboriginal community of Doomadgee and others.  Mr Edmonds has not been able to identify documents passing between the State and the Christian Brethren Church for the relevant period concerning the determination of wages or the actual amount of wages paid to the applicants by the church during the relevant period.  Mr Edmonds says that at best there are merely documentary fragments that relate to employment of and wages paid to some of the applicants. 

37                  An affidavit has been filed by Mr Paul Toolis who was the Executive Officer of the Department of Aboriginal and Island Affairs based at Doomadgee between July 1984 and August 1986.  During August 1983, Mr Toolis coordinated the implementation of business processes in connection with Doomadgee on behalf of the Department.  Mr Toolis says that while this implementation process work was being undertaken, an officer acting on behalf of the Christian Brethren Church closed the books and accounts of the church and thereafter the Department on behalf of the State assumed responsibility for payments to particular individuals. 

38                  The scope of the evidence of these witnesses is described extensively in the Reasons for Judgment of her Honour.  For present purposes, five observations might be made. 

39                  First, there is, plainly enough, an extensive body of evidence in relation to the structural arrangements between the State and the Christian Brethren Church and, in addition, the policy and governance arrangements in connection with the engagement by the State in the administration of Aboriginal communities and Aboriginal Missions not only in relation to Doomadgee but also in relation to Hope Vale and Wujal Wujal and other Missions. 

40                  Secondly, the evidence in relation to these matters is given by very senior public administrators in the State of Queensland including Mr Patrick Killoran, the most senior public servant in the administration of the relevant Department’s affairs at the time, Sir Llewellyn Edwards, Sir Leo Hielscher, Mr Hugh Fawsett, Mr David Sutton and others.  These individuals can speak to the events at the time. 

41                  Thirdly, the factual circumstances which were regarded by the New South Wales Court of Appeal and the High Court as emblematic of the prosecution before the Supreme Court of a cause of action in circumstances of abuse in Batistatos v Road and Traffic Authority of New South Wales; Batistatos v Newcastle City Council (2006) 227 ALR 425, concerned a proposed trial of a claim for damages for personal injuries suffered in August 1965 arising out of a contended failure by the relevant entity in the design, construction or maintenance of a particular feature of a road, in circumstances where the deterioration in the evidence resulted in an inability to put before the forum any police records, hospital records, design and construction documents, oral evidence from relevant individuals at the time and insurance records.  Moreover, changes had occurred in the physical state of the road since the accident. 

42                  In other words, on six broad grounds, there were no documents going to the entire substratum of fact in controversy in the proceeding. 

43                  In each of these proceedings, there is a considerable body of evidence filed.  The applicants contend that the evidence filed in each proceeding is consistent with the evidence relied upon by the Baird applicants [25] which supported the findings of Dowsett J noted in the reasons of the Full Court at [67] of the judgment of Allsop J subject to an acceptance by the present applicants that the evidence of actual wage payments to particular individuals based upon either documents or oral evidence, in each of the substantive proceedings concerning Doomadgee, is poor or weak. 

44                  Fourthly, as to that limitation, although it is apparently the position that Mr Hockey is not able to give evidence even by means of the adoption of some process relevantly analogous to taking evidence ‘on country’ in native title cases where a more facilitative and less confronting environment might be crafted to enable a witness of fact to give evidence with ease, and the documentary record concerning payments to individuals is poor and fragmented, it seems to me that these considerations are nevertheless confined to one aspect of the evidence.  This recognised limitation in the evidence does not reflect a failure of the entire substratum of evidence going to the cause of action.  Accordingly, the applicants ought to be entitled to put before the Court the best evidence available to them in conjunction with evidence of primary or secondary facts which might support particular inferences. 

45                  If the probative quality of that evidence is insufficient to discharge the onus of proof, the applicants must fail.  However, that result ought to be the expression of an adjudication in all the circumstances of the case, rather than a deprivation of the opportunity of an adjudication. 

46                  Fifthly, the trial of the action will, in any event, proceed as to a part of the claim.  There seems to me to be little utility in foreclosing an adjudication upon the s 9 elements of the claim in circumstances where aspects of the controversy of fact which are likely to be relevant to the s 9 claim, directly or indirectly, will be adjudicated. 

47                  Having regard to all of these matters, I am satisfied that the decision of the primary judge in so far as it relates to the question of the claim by the applicants based upon a contravention of s 9 of the R D Act is attended by sufficient doubt that the order for a stay ought to be reconsidered by the Full Court of the Federal Court.  I am also satisfied that a failure to grant leave would result in prejudice to the applicants by reason of a deprivation of the opportunity of an adjudication of that part of the claim. 

48                  Having regard to the observations of Mr O’Gorman of counsel for the applicants [20] to [22], I refuse leave to appeal from the orders of Collier J in respect of the claim based upon s 15 of the R D Act. 

49                  The remaining matter concerns the question of leave to extend time for the making of the application for leave to appeal. 

50                  The application was filed out of time.  The application was supported by two affidavits.  The first is sworn by a Ms Pamela Jane Jones.  Ms Jones says that she is a volunteer worker for FAIRA Aboriginal Corporation which provides assistance to the applicants in both substantive proceedings.  Ms Jones says that consequent upon the publication of judgment by her Honour on 28 September 2006, Ms Jones made attempts to locate all of the applicants to determine if all or any of them wished to appeal her Honour’s decision.  All of the applicants reside in Doomadgee in north west Queensland.  Ms Jones deposes that it is often difficult to contact the applicants as not all of the applicants have the benefit of a telephone at their home.  Ms Jones completed speaking with the applicants during the course of October 2006 although the date is not clear from Ms Jones’s affidavit. 

51                  The second affidavit is that of Mr Peter David Sprott who is a solicitor in the employ of the solicitors for the applicants.  Mr Sprott annexes to his affidavit the proposed Notice of Appeal the applicants would seek to rely upon should leave be given.  The respondent is critical of this material because it fails to explain in any persuasive way the reasons for the delay in filing the application for leave to appeal which is 14 days out of time.  The respondent says that there is simply no satisfactory explanation for the delay; Mr Sprott, the solicitor, has made no effort to explain the delay and the applicants have failed to show ‘special circumstances’ consistent with the principles identified by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1994) 3 FCR 344 at 348 to 349.  Wilcox J observes that it is a precondition to the exercise of discretion in favour of an applicant for an extension of time to show an ‘acceptable explanation for the delay’ and that it is ‘fair and equitable in the circumstances’ to extend time. 

52                  Whilst I accept the force of these submissions as a matter of principle, three important considerations inform the exercise of the discretion in applying those principles to the facts of the present application.  The first is that there is no single applicant.  There are many applicants.  Secondly, the applicants live in a remote community where the orthodoxy of access and communication accepted within concentrated metropolitan communities does not apply.  Thirdly, the issues in connection with the consideration and determination of the application by her Honour needed to be explained to each applicant and instructions taken from each individual resident in a remote community. 

53                  I am satisfied that the discretion ought to be exercised to extend time for the filing of the application for leave to appeal. 

54                  One further matter should be mentioned. 

55                  The applicants for leave to appeal are the third and fourth applicants in QUD389 of 2005 namely, Daphne Foster and Christine Ned who are described as the first and second applicants on the Notice of Motion.  The first and second applicants in QUD389 of 2005 have not sought leave to appeal in respect of that action.  The remaining applicants on the Notice of Motion are all of the applicants in QUD279 of 2004 which includes all four applicants in action QUD389 of 2005.  In the draft Notice of Appeal exhibited to the affidavit of Mr Sprott, all of the applicants in QUD279 of 2004 are described as the appellants and the third and fourth applicants in action QUD389 of 2005 are described as the first and second appellants in that action.  The respondents say that the first and second applicants in action QUD389 of 2005 namely, David Douglas and Gregory Douglas have not sought leave to appeal in respect of that action and do not seek to be appellants in respect of that action. 

56                  The brief procedural history of the relationship between these two actions is that on 25 May 2005, Deputy District Registrar Reynolds made orders that resulted in four of the applicants in action QUD279 of 2004 commencing a further action in the nature of a test case as the vehicle for the determination of the various matters in issue.  QUD279 of 2004 is otherwise in abeyance until the test case of QUD389 of 2005 is determined.  The Notices of Motion filed by the State on 11 July 2006 seeking the stay orders relate to both proceedings.  The immediate difficulty is that the test case proceeding (QUD389 of 2005) with four applicants, Douglas, Douglas, Foster and Ned, has been the subject of further directions orders with the result that the matter is set down for trial in respect of that part of the claim not subject to the stay, during February 2006. 

57                  The respondent says that it will suffer disadvantage should leave be given because the respondent will lose the benefit of commitments counsel have made to the trial and the two applicants who have not sought leave to appeal, David Douglas and Gregory Douglas, will lose the opportunity to progress the test case to trial.  It seems to me that these considerations ought not to represent an answer to a grant of leave to appeal.  It is true that the trial dates in February will need to be vacated.  However, the appeal itself ought to be addressed with some urgency and determined quickly to enable that part of the controversy, as determined by the Full Court of the Federal Court, which ought to proceed to trial, to proceed to trial. 

58                  Accordingly, I grant leave to appeal from the order of her Honour Justice Collier made on 28 September 2006 which effects a permanent stay of proceedings brought by each of the applicants in QUD279 of 2004 and QUD389 of 2005 of claims based upon allegations of discrimination against each of them pursuant to ss 9 and 15 of the Racial Discrimination Act 1975 (Cth), in relation to the claim made by the applicants in QUD279 of 2004 and QUD389 of 2005 that the respondent discriminated against each of them in contravention of s 9 of the Racial Discrimination Act 1975 (Cth) through the payment by the respondent to any manifestation of the Christian Brethren Church including the Christian Brethren of Australia Inc. of grants for the payment of the applicants’ wages that were based on race and resulted in the applicants receiving wages which were at a rate less than that to which they were entitled. 

59                  I grant leave to extend time for the filing of the application for leave to appeal until 20 October 2006.

60                  The costs of and incidental to the application for leave to appeal and the application for leave to extend time for the filing of the application for leave ought to be costs in the cause.

Associate:

Dated:         5 December 2006