FEDERAL COURT OF AUSTRALIA

Douglas v State of Queensland [2006] FCA 1715

DAVID DOUGLAS, GREGORY DOUGLAS, DAPHNE FOSTER AND CHRISTINE NED v STATE OF QUEENSLAND

QUD389 OF 2005

COLLIER J

7 DECEMBER 2006

BRISBANE

THE COURT ORDERS THAT:

1.                  The applicants file and serve an amended statement of claim by 15 December 2006.

2.                  The respondents file and serve an amended defence by 15 January 2007.

3.                  The applicants pay the respondents costs of today, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

1                     This afternoon the parties attended an urgent directions hearing in this matter before me. The background to this directions hearing was as follows:

·         On 28 September 2006 I ordered that the applications filed in respect of QUD279 of 2004 and QUD389 of 2005 be permanently stayed, except to the extent that the applicants were 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 (Douglas v State of Queensland [2006] FCA 1288).

·         I did not however order a permanent stay of such of the applicants’ claims as related to discrimination by the respondent against the applicants in their ‘direct’ employment with the respondent between 1975 and 1986. Accordingly, a trial date was fixed in respect of that part of the claim in QUD389 of 2005, being 14-16 February 2007 in Mt Isa, and I ordered the applicant to file an amended statement of claim by 30 November 2006.

·         The applicants sought leave to appeal from the decision in [2006] FCA 1288. On 5 December 2006 Greenwood J granted leave to appeal 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 (Foster v State of Queensland [2006] FCA 1680). I understand that the appeal to the Full Court in this matter will not be heard before the February 2007 Full Court sittings at the earliest.

·         Accordingly, I ordered the parties to attend a directions hearing at 4.30 pm this afternoon to make submissions in relation to whether the trial currently listed before me to be heard in Mt Isa on 14-16 February 2007 should proceed.

2                     Mr Sprott on behalf of the applicants and Mr Murdoch SC on behalf of the respondents have helpfully provided the Court with written submissions. In summary, the applicants are of the view that the trial should be postponed until the Full Court hears the appeal in this matter, because:

·         in the event that the Full Court allows the appeal, there would be effectively two trials involving the same Doomadgee applicants

·         if two trials did proceed it would be a waste of the resources of all the parties involved, including the Court

·         the circumstances of the application, including those set down for hearing in February, have changed significantly as a result of the Full Court handing down its decision in Baird v State of Queensland ([2006] FCAFC 162); and

·         an advantage of postponing the trial is that it allows the parties time to negotiate (to the extent they choose to).

3                     The respondents on the other hand have submitted that the trial should proceed, on grounds including:

·         the matters the subject of the application are currently more than 20 years old

·         that part of the trial scheduled to take place in Mt Isa in February would be unaffected by the outcome of the appeal to the Full Court as it concerns the allegations of ‘direct’ employment by the State only

·         the issues relevant to the February trial are separate and distinct from the issues now before the Full court

·         there will be no duplication of fact or law if two trials are ultimately held and as such the cost of the February hearing would not be wasted; and

·         the appeal to the Full Court does not concern the first and second applicants in the proceedings and no satisfactory reason has been proffered as to why the trial of their matter should be delayed.

4                     After hearing the parties I am of the view that the trial as scheduled should proceed in February 2007. My reasons are as follows:

1.      the matters involved in this case are of long standing, and involve elderly applicants and witnesses. In those circumstances it is desirable that as much of the trial as possible be held as soon as possible.

2.      I accept the submission of Mr Murdoch SC that the part of the trial scheduled to take place in Mt Isa in February would be unaffected by the outcome of the present appeal. The trial listed for February 2007 is in respect only of such of the applicants’ claims as relate to discrimination by the respondent against the applicants in their ‘direct’ employment with the respondent between 1975 and 1986. This was not the subject of the current appeal, and is indeed a discrete aspect of the claim quite separate from the issues the current subject of appeal.

3.      the matter has already been adjourned once, in August 2006, pending the outcome of the appeal from the decision of Dowsett J in Baird v State of Queensland [2005] FCA 594. I was prepared to postpone the hearing pending that decision, for reasons I gave at the time including that the Full Court was considering issues of direct relevance to the case before me concerning s 9 and s 15 Racial Discrimination Act 1975 (Cth). However the Full Court has now delivered its decision (Baird v State of Queensland [2006] FCAFC 162). In my opinion, particularly in light of the fact that the trial in Mt Isa is in respect of issues not relevant in Baird, it is not appropriate to adjourn the trial.

4.      The most seriously inconvenienced party is clearly the respondent, who will need to, inter alia, organise witnesses to attend the trial in Mt Isa. However, the respondent is nonetheless pressing for the trial to proceed.

5.      Two applicants in the trial listed before me in February 2007 did not seek leave to appeal to the Full Court. I agree with the submission of the respondents that there is currently no reason before me which would support the further delay of the trial of their matters.

6.      As today’s date is only 7 December 2006, there remains considerable time for the parties to enter into meaningful dialogue or negotiations before the trial takes place in February 2007 should the parties wish.

5                     During the hearing, Mr Murdoch drew my attention to the fact that the applicants had failed to file and serve an amended statement of claim by 30 November 2006 as previously ordered by me. Mr Murdoch sought the costs of the respondents of today’s hearing to be paid by the applicants, on the basis that the failure of the applicants to file their amended statement of claim meant that the respondents were in an ill-informed position as to whether the trial in Mt Isa should proceed as scheduled, particularly as two of the applicants in QUD389/2005 had not appealed my decision in [2006] FCA 1288. Mr Sprott stated the solicitors for the applicants had been unaware of the need to file the amended statement of claim by 30 November 2006.

6                     In deciding this issue I note:

·         The result of the decision of Greenwood J in [2006] FCA 1680 meant that it was likely that I would call the parties before me in relation to whether the trial should proceed,

however

·         I accept the submission of the respondents that the failure of the applicants, for reasons which did not appear to be satisfactory, to file and serve an amended statement of claim as ordered, meant that the respondents were unable to properly evaluate their own position in relation to the trial going forward before me today. I consider of particular importance the fact that two of the applicants in QUD389/2005 have not appealed the decision in respect of the permanent stay. From the respondents’ perspective, this obviously raises a question as to which applicants will continue to prosecute this claim; and

·         From the perspective of the respondents the failure of the applicant to file and serve an amended statement of claim as previously ordered also meant that it was necessary for the directions hearing to be held in order for the respondents to air their concerns with respect to the amended statement of claim, and for the Court to then be required to rule on the issue of the trial taking place in February 2007.

7                     Accordingly, I am satisfied that it is fair that the applicants should pay the respondents’ costs of today’s hearing. There are no circumstances which require the applicants to pay these costs forthwith, and the costs should be paid in due course, to be taxed if not otherwise agreed.

8                     I also order that the applicants file and serve an amended statement of claim by 15 December 2006, and that the respondents file and serve an amended defence by 15 January 2007.

ORDER

1.                  That the applicants file and serve an amended statement of claim by 15 December 2006.

2.                  That the respondents file and serve an amended defence by 15 January 2007.

3.                  The applicants pay the respondents costs of today, to be taxed if not agreed.

Associate:

Dated:         8 December 2006