FEDERAL COURT OF AUSTRALIA

Hastwell v Kott Gunning [2017] FCA 1557

ORDERS

THE COURT ORDERS THAT:

1.    The respondent’s interlocutory application dated and filed 19 September 2017 be dismissed.

2.    The respondent pay the applicant’s costs of and incidental to the interlocutory application, including costs thrown away by reason of granting the respondent’s adjournment application on 19 September 2017, and the costs of the prior interlocutory application filed on 1 August 2017, on an indemnity basis.

3.    The proceedings be listed for a case management hearing on 2 February 2018 at 12.00 noon Sydney time/9.00 am Perth time, or on such other date and time as is convenient to the Court and the parties.

4.    The parties, by 48 hours prior to the case management hearing, email to the associate to Justice Bromwich agreed or competing procedural orders outlining the next steps in the proceeding, including the fixing of a trial date, and any orders for assessing the quantum of costs ordered to be paid above, with a view to such orders being made in chambers and the case management hearing on 2 February 2018 being vacated.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BROMWICH J:

1    In May 2017, the applicant, Mr Haydn Gary Hastwell, commenced proceedings in this Court by way of an originating application that has since been amended. Mr Hastwell seeks relief under s 46PO(4) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) in relation to allegations of prohibited discrimination on the basis of sexual orientation, disability and victimisation, in contravention of the Disability Discrimination Act 1992 (Cth) and the Sex Discrimination Act 1984 (Cth). In these reasons, references to section numbers and parts of section numbers are all references to provisions of the AHRC Act, unless stated otherwise. Independently of the s 46PO aspect of his case, Mr Hastwell also seeks declarations and damages for breach of contract, based upon the same alleged factual substratum.

2    These reasons concern an interlocutory dispute arising from an assertion made by the respondent, Kott Gunning, that this Court does not have jurisdiction to determine Mr Hastwell’s proceedings in this Court. These proceedings are based upon a complaint to the Australian Human Rights Commission (HRC) that was terminated.

3    Kott Gunning is a law firm in Perth comprised of its equity partners. That partnership was the former employer of Mr Hastwell as a solicitor. The partnership changed composition during the period of Mr Hastwell’s employment, and has changed further since he left that firm. Mr Hastwell’s complaint to the HRC concerned the same allegations of prohibited discrimination on the basis of sexual orientation and victimisation that he now seeks to litigate in this Court. The conduct was alleged to have happened during the time that he was employed by Kott Gunning.

4    The conditions ordinarily precedent to commencing valid s 46PO proceedings in this Court include that a complaint to the HRC has been terminated: s 46PO(1), subject to subsection (3A). A properly constituted complaint to the HRC in the first place, and a match between a respondent to that complaint and each respondent to proceedings in this Court, is also required for valid proceedings in this Court: s 46PO(1). Proceedings in this Court are confined to the ambit of the complaint in the form in which it was terminated: s 46PO(3). In such proceedings, this Court is not bound by technicalities or legal forms: s 46PR.

5    Kott Gunning, by way of an interlocutory application, seeks summary dismissal of the entire proceedings. However, that application necessarily has to be confined to the s 46PO aspect of Mr Hastwell’s claim. It cannot extend to summary dismissal of the contract claim, as that is not confined by the regime established by the AHRC Act.

6    Kott Gunning seeks summary dismissal of the s 46PO aspect of Mr Hastwell’s proceedings by asserting that:

(1)    no valid complaint was made to the HRC; and

(2)    even if a valid complaint was made to the HRC, the required commonality between the respondent to the HRC complaint and the respondent to the proceedings in this Court is absent.

7    It is common ground that if either of the above related contentions is made good, the s 46PO aspect of these proceedings would be doomed. Summary judgment could not then be resisted by Mr Hastwell in respect of that part of his claim. However, for the reasons that follow, each contention made on this interlocutory application is devoid of merit. Kott Gunning’s application for summary judgment must therefore be dismissed.

Overview

8    Mr Hastwell was employed as a solicitor by Kott Gunning between 3 September 2013 and 2 April 2015. Any dispute as to the precise dates of his employment is presently immaterial. His written contract of employment, dated 7 August 2013, described “Kott Gunning”, with its Australian Business Number (ABN), as his employer. The footer to that contract described the law firm as “Kott Gunning LAWYERS”.

9    On 24 March 2016, Mr Hastwell lodged a complaint with the HRC. Page 3 of the complaint form is headed “Part B – Who is the complaint about?” That is followed by words seeking the “Name of the person or organisation”. The typewritten entry in response is “Kott Gunning Lawyers”. The next line of the complaint form seeks the “ABN of person or organisation (if relevant)”, to which the typewritten entry in response is the same typewritten ABN as appeared in Mr Hastwell’s contract of employment. Mr Hastwell’s completed complaint form was accompanied by a letter from Mr Hastwell’s then solicitors, which makes wide-ranging allegations of adverse conduct directed towards Mr Hastwell during his time at Kott Gunning. That letter also had a number of further attachments.

10    It is presently neither necessary nor desirable to consider, let alone canvass, any of the details of the allegations made by Mr Hastwell in his complaint to the HRC. As detailed below, numerous attempts were made by the HRC to conciliate the complaint without success.

11    On 13 March 2017, the complaint was terminated by a delegate of the President of the HRC upon the ground of being satisfied, pursuant to s 46PH(1) of the AHRC Act, that there was no reasonable prospect of the matter being settled by conciliation. On 10 May 2017, Mr Hastwell commenced these proceedings. That was done within the required 60 days of the termination of the complaint.

12    Mr Hastwell’s amended originating application names “Kott Gunning” as respondent. That accords with r 9.41(2) of the Federal Court Rules 2011 (Cth), which provides that a proceeding may be brought against two or more persons who it is claimed are liable as partners in the partnership name.

13    On 19 September 2017, Kott Gunning filed the present interlocutory application for summary judgment. This had the effect of reinstating an earlier, abandoned, application directed to the initial originating application.

The difference between “Kott Gunning”, “Kott Gunning Lawyers” and “Kott Gunning, lawyers”

14    Some weight was placed by Kott Gunning in this interlocutory application on an assertion that the listing of “Kott Gunning Lawyers” as the respondent on the HRC complaint form lodged by Mr Hastwell referred to an entirely different legal entity to “Kott Gunning”. That argument was ultimately somewhat faintly advanced. However, it must still be addressed because it was never abandoned. It may be disposed of quickly.

15    Various items of correspondence during the HRC complaint phase in evidence on this application use the name “Kott Gunning” and “Kott Gunning Lawyers” interchangeably. This aspect of Kott Gunning’s application relied upon acceptance of this being a distinction of substance. When counsel appearing for the respondent was asked during the interlocutory hearing whether “Kott Gunning, lawyers” would have been any different to “Kott Gunning” as a means of identifying Mr Hastwell’s employer in the HRC complaint, both as originally made, and as the complaint progressed through conciliation to termination, he responded as follows:

… can I say this in relation to the difference between Kott Gunning – the phrase “Kott Gunning” and the phrase “Kott Gunning Lawyers”. My submission is that “Kott Gunning”, the phrase, is a collective noun that describes the law firm or the firm of individuals trading in partnership under the banner of Kott Gunning. “Kott Gunning Lawyers”, which appears on the footer of the letterhead and, of course, on the footer of the employment contract, is a reference to what that firm does – what those individual partners comprising that partnership actually do. So, … for example, when one refers to – I mean, one uses the epithet “lawyers” in distinction, for example, to accountants or financial advisers, etcetera. In my submission, nothing much turns on that because both of those entities, your Honour, are not legal entities, and I don’t think that that can be disputed. A partnership, certainly under the common law, does not have legal personality, and Kott Gunning Lawyers in the term that describes the business of that partnership, equally so.

16    This was a most unconvincing response to a point apparently taken seriously in written submissions, as outlined later in these reasons. The asserted distinction based on the use of the word “Lawyers” (or “, lawyers”) may be disregarded without further consideration as lacking any substance. Either the use of a firm name was sufficient to identify the partners behind that name as the legal entities against whom the HRC complaint was being made, or it was not. The presence or absence of the surplus word “Lawyers” makes not a jot of difference in this case as to whether or not the necessary identification took place.

The asserted need to name the partners of a law firm in a complaint to the HRC

17    The real substance of the case advanced for summary dismissal turned upon an assertion that, for a complaint against any partnership to the HRC to be validly made under the AHRC Act, it had to individually name each partner constituting the partnership. This point turns on the distinction between naming a partnership by its firm name, rather than by the name of each partner at each relevant point in time, in a complaint made to the HRC. It was asserted that the partners constituting the partnership at the time of the making of the complaint had to be named, rather than the partners at the time of each event complained of.

18    Despite repeated questions by the Court, it was never made clear by counsel appearing for Kott Gunning why a complaint to the HRC should name someone who was not a partner at the time of the alleged conduct, and should not name a partner who was a partner at that time, but who had left the partnership prior to the complaint being made. However, this issue does not need to be resolved, at least in those terms. The substance of Kott Gunning’s case is that it could never be valid for anyone to make a complaint to the HRC against the partners of any partnership by using only the partnership name. Every such complaint had to name each and every partner individually (putting to one side the question of who the partners were at each relevant point in time).

19    Thus, on Kott Gunning’s argument, while a complaint to the HRC always had to name the individual partners, the commencement of proceedings in this Court could, and usually would, name the same partners by their collective partnership name in accordance with r 9.41(2) of the Federal Court Rules. This unavoidable consequence of a different naming requirement in the HRC and in this Court or the Federal Circuit Court, if Kott Gunning’s argument was to be accepted, was not a promising start to their case for summary judgment on the s 46PO aspect of Mr Hastwell’s case. That is especially so when regard is had to the express terms of s 46PO(1). The soundness of Kott Gunning’s argument did not improve with closer examination as a matter of statutory interpretation, the application of established authority, or plain and practical common sense.

The relevant provisions of the Australian Human Rights Commission Act 1986 (Cth)

20    Section 46PO(1) to (4) of the AHRC Act provide as follows:

(1)    If:

(a)    a complaint has been terminated by the President under section 46PE, paragraph 46PF(1)(b) or section 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 Circuit Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.

(2)    The application must be made within 60 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.

(3A)    The application must not be made unless:

(a)    the court concerned grants leave to make the application; or

(b)    the complaint was terminated under paragraph 46PH(1)(h); or

(c)    the complaint was terminated under paragraph 46PH(1B)(b).

(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.

21    Section 3(1) of the AHRC Act defines various terms, including that “respondent” in relation to a complaint means “the person or persons against whom the complaint is made”. In that regard, the Acts Interpretation Act 1901 (Cth) relevantly provides:

2C    References to persons

(1)    In any Act, expressions used to denote persons generally (such as “person”, “party”, “someone”, “anyone”, “no-one”, “one”, “another” and “whoever”), include a body politic or corporate as well as an individual.

(2)    Express references in an Act to companies, corporations or bodies corporate do not imply that expressions in that Act, of the kind mentioned in subsection (1), do not include companies, corporations or bodies corporate.

22    It is clear that a complaint must be made against a legal entity in order to meet the description of a “person” who can be the subject of a complaint. The central issue raised by Kott Gunning’s application is what is required to sufficiently identify such a complaint respondent when a partnership is involved.

The relevant case law

23    In Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118; 63 AILR 101-302, the following was observed about the regime in s 46PO of the AHRC Act:

46    Section 46PO(3) contemplates some ambit for additional conduct, acts, omissions or practices to constitute unlawful discrimination. In Travers v State of New South Wales [2000] FCA 1565 at [8] Lehane J referred to the terms of s 46PO(3) as suggesting a degree of flexibility. However, s 46PO(3) operates as an important constraint upon the ability of a complainant later to seek relief in the Court in respect of a complaint he or she had not previously raised for consideration by the Commission. As Lehane J cautioned, the ability to make an application to the Court “should not be used to launch an application … effectively bypassing the procedures provided by the legislation”: Travers [2000] FCA 1565 at [8]. His Honour also followed the warning of Branson J in Commonwealth v Sex Discrimination Commissioner (1998) 90 FCR 179 at 188B-D, that usually a complaint will not be drawn by a lawyer and it ought not be construed as a pleading. Justice Branson held also that a complaint under s 46P was not to be equated to a criminal complaint or information: 90 FCR at 188B. Her Honour followed Merkel J’s decision in Simplot Australia Pty Ltd v Human Rights and Equal Opportunity Commission (1996) 69 FCR 90 at 93-94 that a complaint in writing did not need to include any details of the alleged unlawful discrimination (see now s 46P of the AHRC Act).

47    As Lehane J said in Travers [2006] FCA 1565 at [8], the ambit of the complaint may be ascertained for the purpose of s 46PO(3), not by considering its initial form, but by considering the shape it had assumed at the time of its termination: see too Simplot 69 FCR at 94F-G. In Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573 at 580-581 [35]-[41] Katz J considered the construction of s 46PO(3). He held that s 46PO(3)(b) permitted an applicant to allege different facts in proceedings in the Court from those alleged in the terminated complaint, provided that those new facts were not different in substance from those formerly alleged: Charles 105 FCR at 580 [39].

48    The unlawful discrimination referred to in s 46PO(3) consists of any acts, omissions or practices alleged in the complaint that amount to unlawful discrimination as defined in s 3(1) of the AHRC Act. It is not appropriate for a court considering an application for leave to amend to preclude an amendment that raises an arguable claim for relief, especially where the terms of s 46PO(3)(b) (in particular) permit of some flexibility. And, in applying the terms of s 46PO(3), the terms of a complaint made to the Commission should not be read with the same strictures as apply to a pleading in a Court. Not only was this approach implicitly recognised by the flexibility of the terms employed in the sub-section itself, s 46PR required an approach “not bound by technicality”. It provided in relation to, among other provisions, s 46PO:

“Court not bound by technicalities

46PR    In proceedings under this Division, the Federal Court and the Federal Magistrates Court are not bound by technicalities or legal forms. This section has effect subject to Chapter III of the Constitution.”

The “substantive directions” given by s 46PO(3) must still be respected, notwithstanding the provisions of s 46PR: Maghiar v Western Australia [2002] FCA 262 at [18] per French J.

24    The decision in Dye is binding authority that dictates the approach that is required to be taken, including in considering the authority that Kott Gunning based their central argument upon, namely Grigor-Scott v Jones [2008] FCAFC 14; 168 FCR 450. Before turning to Grigor-Scott, it is important to note that, in considering whether the gateway conditions have been met before a terminated complaint to the HRC may become the basis for proceedings in this Court (or in the Federal Circuit Court), Dye requires a focus on substantial compliance, rather than compliance with mere form.

25    The evident purpose of this aspect of the AHRC Act is to ensure that the executive complaint process and, in particular, conciliation, have been exhausted before a complainant is able to access the curial remedies available under the AHRC Act. That gateway effect, by which it must first be determined by the appropriate person at the HRC that there is no reasonable prospect of the matter being settled by conciliation, will only be achieved if there is commonality between the subject matter of the complaint and the parties to it. Otherwise, the “no reasonable prospect” test, which was formerly in s 46PH(1)(i) and is now to be found in s 20(2)(iib), will not operate to filter the same potential parties to litigation, nor essentially the same dispute.

26    The gateway requirement in the AHRC Act should be viewed as a practical one, not an unduly technical one. It should not be required to be met with the formality of pleadings as to named parties or the subject matter of the complaint being applied to the process prior to termination. With that characterisation of the requirements of this aspect of the AHRC Act, it is convenient to turn to Grigor-Scott and the arguments advanced by Kott Gunning in reliance upon that case.

27    In Grigor-Scott, a complaint was made to the HRC by Mr Jones, the President of an organisation that was not incorporated, against a body that was also not incorporated, the Bible Believers Church. Neither organisation was therefore a legal entity. In the case of Mr Jones, that did not matter because he, as the complainant, was a legal person, albeit bringing his complaint in a representative capacity. Following the HRC’s termination of the complaint, Mr Jones brought proceedings in this Court, purportedly against the Bible Believers Church.

28    Mr Grigor-Scott was one of the organisers of the Bible Believers Church. He was subsequently added as a respondent to the proceedings in this Court. Mr Grigor-Scott had never been a person named or treated as a respondent in the HRC complaint process, although he had participated in that process on behalf of the Bible Believers Church. The primary judge found for Mr Jones. Mr Grigor-Scott and, ostensibly, the Bible Believers Church appealed.

29    The Full Court in Grigor-Scott removed the name of the Bible Believers Church as an appellant because it was not a legal entity able to sue or be sued. That left Mr Grigor-Scott as the sole appellant. The appeal was upheld on the basis that there was no commonality, as required, between the original complaint respondent (the Bible Believers Church) and Mr Grigor-Scott, as the only legal entity capable of being sued in this Court. The Full Court observed in Grigor-Scott:

77    It is true, as Mr Jones has argued on the appeal, that Mr Grigor-Scott communicated with the Commission after the complaint was made. However, the complaint was made in respect of the Website. Mr Jones, the Commission and the President treated the complaint as having been made against Bible Believers’ Church. No party at any time prior to 21 July 2005 treated the complaint made to the Commission as a complaint against Mr Grigor-Scott. Mr Grigor-Scott was never a respondent to the complaint before the Commission.

78    Since Mr Grigor-Scott was never a respondent to the complaint to the Commission, no proceeding could be brought against him by Mr Jones. …

30    Thus the case brought by Mr Jones in this Court in Grigor-Scott failed because his HRC complaint was not made against a person at all. In those circumstances, there could be no person who was an HRC complaint respondent able to be sued in this Court. The outcome and reasoning in Grigor-Scott could only assist Kott Gunning in this application if it could likewise be shown that no effective complaint had been made to the HRC about Kott Gunning as a partnership comprising its partners, and thus as a legal entity in the form of those partners.

31    With particular heed to the passage quoted above from Dye at [47] that “the ambit of the complaint may be ascertained for the purpose of s 46PO(3), not by considering its initial form, but by considering the shape it had assumed at the time of its termination”, the Court is required to determine whether Mr Hastwell made a complaint against the partners comprising Kott Gunning, or only a complaint against the bare shell bearing that name alone, being a non-legal entity. The practical approach to commonality in Dye is not, in principle, confined to the content of the complaint, but may be taken to extend also to determining against whom the complaint was made. This comparison is required to be made not simply at the time the complaint was lodged, but by considering the complaint process as a whole, and who the complaint respondent was by the time it was terminated.

Against whom was the complaint made to the HRC?

32    As described above at [9], the complaint form lodged on behalf of Mr Hastwell to the HRC on 24 March 2016 described “Kott Gunning Lawyers” as the respondent “person or organisation” who the complaint was “about”. Attached to the complaint form was a supporting letter from Mr Hastwell’s then solicitors to the HRC, also dated 24 March 2016. That letter referred to the complaint as arising from “inappropriate conduct of the Firm’s employees and the Firm’s agents”, and stated that the “Firm” condoned such behaviour. In relation to the victimisation claim, the letter stated that “[t]he Firm and a number of its employees and agents have severely victimised Mr Hastwell on the basis of his sexuality.” As will be seen from what later transpired, the HRC treated the complaint as being directed to the firm, rather than to any of the firm’s employees individually, and the firm responded accordingly.

33    Also attached to the complaint were a number of supporting documents, several of which are relevant for the purposes of this interlocutory dispute. The following warrant specific mention:

(1)    The first further attachment, a letter from Mr Hastwell to the respondent titled “Formal Complaint” and dated 10 December 2014, is addressed to the “Partners” of Kott Gunning and chronologically sets out the substance of what became Mr Hastwell’s later complaint to the HRC. That letter notes that Mr Hastwell felt “let down by Kott Gunning”, and questions what action “the Firm” will now take in response to his concerns, while indicating that the complaint concerned the conduct of Kott Gunning staff, including some of its partners.

(2)    A letter sent by Mr Hastwell’s solicitors to the Managing Partner of Kott Gunning, dated 18 December 2014, refers to an email sent by Mr Ashley Crisp, a partner at Kott Gunning, to Mr Hastwell on 16 December 2014, in which Mr Crisp confirmed that the allegations set out in Mr Hastwell’s letter of 10 December 2014 would be investigated. The letter refers to the complaint being “against your Firm and certain employees of the Firm”.

(3)    A letter sent by the Managing Partner of Kott Gunning to Mr Hastwell’s solicitors, dated 16 January 2015, refers to a response now being provided to Mr Hastwell’s solicitors’ letter of 2 January 2015 as “the partners in our insurance section have now all returned from leave and have had an opportunity to read your letter”. This letter and subsequent letters sent in response to Mr Hastwell’s solicitors’ correspondence use collective language to refer to the partners of Kott Gunning and their views and actions in response to Mr Hastwell’s concerns, as distinct from those of the general staff of Kott Gunning.

(4)    Letters dated 26 February 2015 and 26 March 2015, which appear to be drafted by Mr Vidal Hockless, a partner (and chairman of partners) at Kott Gunning, are signed off simply as “Kott Gunning” with a digital signature, rather than the signature of any individual partner or author.

34    Further to the above, and subsequent to the lodging of the complaint, Mr Hastwell sent an email to the HRC on 11 February 2017 seeking to amend his complaint to include an allegation of sexual harassment. That email refers to the conduct of “the Respondent or one of the agent’s [sic] of the Respondent or an employee of the Respondent” as being the conduct the subject of the complaint. That language is reiterated in a further email from Mr Hastwell to the HRC on 25 February 2017. Those emails refer to Mr Hastwell’s former employer entity, which was the partnership, as having responsibility for what he said happened to him, although some individual responsibility is suggested as well.

35    On 13 March 2017, the HRC issued a letter to Mr Hastwell advising him of the termination of his complaint, on the basis that the HRC President was satisfied that there was no reasonable prospect of the matter being settled by conciliation. That letter refers to the complaint being made against “Kott Gunning”, and to Kott Gunning as the respondent from whom a reply was received regarding the complaint on 2 September 2016.

36    The substance of the responses to the letters and emails of complaint was either expressly or impliedly communicated on behalf of the partners of Kott Gunning in relation to the allegations made against them. The responses were representative in nature.

37    That approach was also apparent during the life of the complaint process before the HRC. In particular, as addressed later in these reasons:

(1)    email communications between the HRC investigator/conciliator and a partner (and chairman of partners) of Kott Gunning, Mr Vidal Hockless, repeatedly refer to Kott Gunning as an entity which has a state of mind, which could only be held by the partners collectively and not by a mere shell;

(2)    Kott Gunning participated in the HRC conciliation process on several different days as a firm, and thus partnership, constituted by its partners – the conciliation conference agendas in evidence for 11 November 2016 and 24 February 2017 refer to Mr Hockless appearing from Kott Gunning, the named respondent, with counsel also in attendance on its behalf;

(3)    emails in evidence indicate the input of Mr Hockless and counsel in the preparation documentation for the conciliation conferences on behalf of the partnership;

(4)    Mr Hockless emailed the HRC investigator/conciliator to advise that “our counsel” was available on a proposed conciliation date, making it reasonably clear that it was the partnership by the name Kott Gunning that was participating in the complaint and conciliation process.

The proceedings in this Court

The evidence of the Kott Gunning partners

38    Of the various Kott Gunning partners or former partners who swore affidavits in relation to this interlocutory application, six partners gave oral evidence at the interlocutory hearing and were subject to cross-examination by counsel for Mr Hastwell. The following relevant points were elicited from the affidavit and oral evidence of those partners on the issue of who the respondent to the HRC complaint was:

(1)    All six of the testifying equity partners – Mr Vidal Hockless, Ms Emma Leys, Mr Mark Fatharly, Mr Thomas Darbyshire, Mr Ashley Crisp and Mr Stephen Williams – accepted that, during the HRC complaint process, they understood themselves to be respondents to the complaint, and that the reference to “Kott Gunning” in the complaint was a reference to the partnership as the employer of Mr Hastwell.

(2)    Mr Hockless stated in his affidavits sworn on 26 July 2017 and 5 September 2017 that the name of the partnership constituting the firm is “Kott Gunning”, and that correspondence from the firm, and therefore from the partnership, is signed as “Kott Gunning”. On the basis of correspondence in evidence on this application, that seems to have sometimes been the case, with some other correspondence being signed by an individual partner on behalf of the firm.

(3)    Mr Hockless gave evidence as to the HRC complaint and conciliation process, which he accepted that he engaged in on behalf of the equity partners constituting the firm. Relevantly, when taken to the responses provided by Kott Gunning by email on 2 September 2017 to certain questions posed by the HRC, Mr Hockless was pointed to the description he provided of Mr Hastwell’s employer as “Kott Gunning Lawyers”. Mr Hockless stated that he “should have probably specified the individual partners as employers, but I didn’t”. Upon being asked by counsel for Mr Hastwell whether that was because he understood that he was, by writing “Kott Gunning Lawyers”, identifying himself and his fellow partners as the employer, Mr Hockless agreed that that was the case.

(4)    Counsel for the applicant took Mr Hockless to a number of documents that highlighted the multiple opportunities Kott Gunning had had during the complaint process to dispute the description of the complaint respondent as “Kott Gunning Lawyers” or “Kott Gunning”, rather than as the names of the partners constituting the firm. Those documents indicated an acceptance by Kott Gunning of how the complaint respondent had been framed, and included:

(a)    an email from Mr Hockless to the HRC, sent on 3 August 2016 on behalf of the Kott Gunning partnership, acknowledging receipt of Mr Hastwell’s complaint;

(b)    an email from the HRC to Mr Hockless on 11 October 2016 confirming “Kott Gunning’s agreement to participate in a conciliation … in relation to the complaint made by Mr Haydyn Hastwell”; and

(c)    an agenda created by the HRC for a conciliation conference scheduled on 11 November 2016, the purpose of which is described in the document as “to discuss, and try to resolve through conciliation, the complaint by Haydyn Hastwell against Kott Gunning”. Under a list of participants in the conference, Mr Hockless is listed as “from the respondent”.

(5)    Upon being taken to the letter sent by the HRC to Mr Hockless on 13 March 2017 advising of the termination of Mr Hastwell’s complaint, in which the complaint was described as being against “Kott Gunning”, Mr Hockless accepted that the firm did not inform the HRC of any issues with that description.

(6)    In his affidavit sworn on 27 July 2017 and in oral evidence, Mr Ashley Crisp confirmed that he accepted service of Mr Hastwell’s Federal Court originating application on behalf of the partnership of Kott Gunning. The email that he sent to Mr Hastwell’s then solicitors on 18 May 2017 notably draws to their attention, as a matter of “procedure under the Federal Court Rules”, that:

The proceedings against a partnership should be brought in the name of the partnership and not in the name of the individual partners (Rule 9.41) and in any event the group of defendants you have named does not represent the partnership of Kott Gunning at the material time.

(7)    Despite accepting that the equity partnership constituting Kott Gunning was Mr Hastwell’s employer, and that he understood that he was a respondent to the complaint “at the time”, Mr Stephen Williams gave evidence, orally and in his affidavit sworn on 29 November 2017, that Mr Hastwell could have discovered who the relevant partners were at the time of making the complaint from a search of the Legal Practice Board of Western Australia website. He stated that he was told by a lawyer acting for Kott Gunning, Ms Miller, that the website had been available since 2012. The evidentiary value of that evidence for Kott Gunning’s application was not, and is not, apparent, unless it was seeking to make the point that the complaint to the HRC could have named the individual partners instead of using the firm name, in which case it goes nowhere, because the issue is not whether Mr Hastwell could have named the individual partners, but rather whether he had to do so.

39    Counsel for Mr Hastwell made the following pithy and apposite submission at the hearing about the oral evidence given by the Kott Gunning partners:

Our submission is that the question of who is a respondent to a complaint in the Human Rights Commission is a question of fact and substance and not of form, and what was interesting about the evidence … of the persons who gave evidence today, not one of them, when describing the employer of Mr Hastwell, named all the partners. They all said in various forms either “Kott Gunning” or “the partners of Kott Gunning”. So even they, as they understand themselves as the employer, do not understand themselves as having to name each individual. They consider themselves correctly named by “the partners of Kott Gunning” or simply by “Kott Gunning”. That is how they understand a reference to their collective selves.

Submissions on behalf of Kott Gunning

40    The oral and written submissions made by Kott Gunning can be summarised as follows:

(1)    Kott Gunning framed the three issues for the Court’s determination as:

A.    Whether Mr Hastwell’s Federal Court Claim is competent, given that it is based on an AHRC complaint against a non-legal entity;

B.    Whether the participation of partners of Kott Gunning in the AHRC proceedings is relevant to the competence of the AHRC complaint or the Federal Court Claim; and

C.    Whether Mr Hastwell’s amendment to the claim cures any incompetence.

(2)    On the first issue (“A” above), Kott Gunning noted the legislative provisions referred to at [20] above as establishing the necessary preconditions for a competent claim to the Federal Court based on a HRC complaint process, and highlighted the need for the HRC complaint to have been lodged against an individual or entity with legal personality. Kott Gunning submitted that “Kott Gunning Lawyers”, as the complaint respondent was named, is neither a legal entity nor a partnership, with the true partnership by whom Mr Hastwell was employed being named “Kott Gunning”. This aspect of Kott Gunning’s argument that relied upon the surplus use of the word “Lawyers” has already been rejected at [14]-[16] above. Counsel for Kott Gunning stated that none of the partners individually listed as respondents to the initial originating application were named as respondents to the HRC complaint, but that is not the current version of the pleading.

(3)    It was then submitted that, even if “Kott Gunning” had been named as the respondent to the HRC complaint, the complaint would have been incompetent, as Kott Gunning is a partnership and not a legal entity, and procedural court rules allowing for partnerships to sue and be sued by their firm name, rather than by individually listing the relevant partners, do not exist in relation to HRC proceedings. Kott Gunning thus argued that the general rules applying to legal claims against partnerships, namely that “absent a Rule of the Court, an action against the partnership must name the individual partners as defendants”, should apply to the complaint. It was submitted that, because neither “Kott Gunning” nor “Kott Gunning Lawyers” is a legal entity capable of being named as a complaint respondent, the HRC complaint was incompetent by operation of s 3(1) of the AHRC Act.

(4)    Kott Gunning cited Simundic v University of Newcastle [2007] FCAFC 144 at [19] to submit that, because the HRC complaint was to be considered incompetent, the preconditions to a claim to this Court under s 46PO were not made out and the Court therefore did not have jurisdiction under the AHRC Act to hear the matter. Reliance was also placed on Grigor-Scott at [69] to submit that where a non-legal entity is named in the complaint on which court proceedings were founded, those proceedings must be dismissed as incompetent.

(5)    While s 46PR was acknowledged as allowing the Court to dispense with technicalities in relation to s 46PO claims, it was submitted that this did not allow the Court to hear the matter where a non-legal entity was the complaint respondent, because the identity of a complaint respondent was not a matter of “mere technicality with which the Court can dispense by reason of s46PR of the AHRC Act”, citing Eliezer v University of Sydney [2015] FCA 1045 per Perry J at [47] and Grigor-Scott at [18]-[19].

(6)    On the second issue, (“B” above), Kott Gunning submitted that the “mere participation” of individual partners in the HRC complaint process “does not recast them as respondents to the Complaint”.

(7)    On the third issue, (“C” above), Kott Gunning submitted that Mr Hastwell’s amendment of his application in this Court, which changed the respondent from what was intended to be a list of individual Kott Gunning partners to the firm name, “Kott Gunning”, did not cure the proceedings as the HRC complaint remained incompetent. Citing Grigor-Scott at [69], it was submitted that because s 46PO only allows proceedings to be brought against one of the “respondents to the terminated complaint”, and Mr Hastwell’s complaint was made against “Kott Gunning Lawyers”, Kott Gunning was not a respondent to the complaint.

(8)    Finally, Kott Gunning acknowledged that the Court’s power to summarily dismiss matters relating to unlawful discrimination ought to be exercised with “exceptional caution”, citing Oorlof v Lee [2004] FMCA 893 at [49], but submitted that, for the reason that Mr Hastwell’s claim is incompetent and the Court lacks jurisdiction to hear it, the claim therefore has no reasonable prospect of success and should be summarily dismissed.

Submissions on behalf of Mr Hastwell

41    In response, counsel for Mr Hastwell submitted that Kott Gunning’s application for summary dismissal on the grounds summarised above ignored the following:

(1)    that, having regard to the identical ABN listed in both the HRC complaint and Mr Hastwell’s employment agreement, it was clearly understood at all times (including by Kott Gunning) from the lodging of the HRC complaint to the first case management hearing in this Court that the respondent to the terminated HRC complaint was the same as the respondent to these Court proceedings, namely, Kott Gunning as a partnership;

(2)    that s 10 of the Partnership Act 1985 (WA) relevantly provides for firm partners to be simply referred to in the collective by a short form “firm-name” identifying the partners as doing business together; and

(3)    that r 9.41 of the Federal Court Rules 2011 (Cth) permits partnerships to be sued under their partnership name, and regard should be had therein to the power that s 46PR of the AHRC Act gives the Court to dispense with “technicalities or legal forms”.

42    Counsel for Mr Hastwell distinguished Grigor-Scott as being concerned with persons who could be considered to be members of a voluntary association, rather than a partnership, and who thus could not be identified by reference to a firm name as partners could. It was submitted that the Kott Gunning partners had no doubt that they were the complaint respondent as a collective partnership, and that that partnership was a legal entity in the sense of being comprised of its individual partners and referred to by a short form name.

43    Counsel for Mr Hastwell also submitted that this was not a circumstance of adding respondents who were not identified in the original HRC complaint, as in Eliezer. Rather, the respondent to the Court proceeding was the same respondent identified in the terminated complaint, and “to hold that the Court is able to deal with partners by their firm-name but must find that [the] AHRC cannot is exactly the type of vice section 46PR of the AHRC Act is designed to prevent”.

44    Counsel also added, in addition to the evidence that is canvassed above at [32]-[37], that due to Kott Gunning’s apparent practice of allowing persons who are only employees, rather than equity or salaried partners, to identify themselves with the title of “partner”, Mr Hastwell had no means of knowing who the partners employing him conclusively were. It was submitted that it was thus necessary that Mr Hastwell revert to the common assumption and representations that the use of the firm name, trading name or ABN of the partnership was the short form means of identifying the partners of Kott Gunning as a whole.

Consideration

45    The submissions for Mr Hastwell summarised above should be accepted, and those for Kott Gunning rejected. That conclusion is reinforced by reproducing two further statements of principle that are particularly apposite in the context of the history of the complaint proceedings before the HRC outlined above.

46    In Devane v Gati (1956) 95 CLR 174, six informations were laid in the New South Wales Court of Petty Sessions against two men who were the partners of a clothing business, alleging various breaches of an industrial award to which the partnership was named in a schedule. The effective gateway to the breach proceedings was sufficient commonality between the parties to the award and the defendants to the court action. The Chief Industrial Magistrate at Sydney, New South Wales, upheld an objection by the defendants that they could not be proceeded against on the basis that only the firm was bound by the award, and dismissed the informations. The High Court overturned the decision and remitted the informations for rehearing, stating at 175 (emphasis added):

In our opinion the objection was without foundation. It was quite competent for the Court of Conciliation and Arbitration to deal in the firm name with a partnership carrying on business in the firm name. The partners of the firm against which proceedings in the Court of Conciliation and Arbitration were so carried on would be bound by an order or award made naming the firm, that is assuming that in all other respects the court had jurisdiction to bind them by the order or award. It is, of course, true that a partnership is not a separate legal entity. But the firm name is nevertheless a description of the individuals who compose the partnership and it describes them for the purpose of the firm's business. The rule of the common law was that for the purpose of suits and proceedings in the ordinary courts of justice the parties must be named as individual persons and the firm name did not satisfy this requirement, although for many other purposes it is recognized as a collective description. But the rule does not govern the industrial proceedings of the Court of Conciliation and Arbitration. It was perfectly proper for the informant to name them individually in the informations and, indeed, that was the only manner in which they could regularly be prosecuted in the present proceedings.

47    It may be observed that this way of referring to Kott Gunning was effectively adopted by their counsel at the interlocutory hearing, as reproduced at [15] above when he said:

My submission is that ‘Kott Gunning’, the phrase, is a collective noun that describes the law firm or the firm of individuals trading in partnership under the banner of Kott Gunning.

48    The question of what was required to meet the non-curial needs of identification of a legal entity against whom a complaint is made to the HRC was usefully stated in Grigor-Scott:

19    The intention is to limit the complaint which is to be brought to the Court to the same complaint as was made to the Commission by the same complainants and against the same respondents. It is easy to understand why that is so. The intention is to ensure that the Commission is always the filter for claims of unlawful discrimination before they are brought to the Courts, unless the President is satisfied that the complaint involves a matter of public importance that should be considered by the Federal Court or the Federal Magistrates Court. In acting as that filter, the President attempts to conciliate every complaint of unlawful discrimination which is not lacking in substance and which has not been otherwise adequately dealt with or cannot be effectively dealt with by another statutory authority: s 46PH(1).

20    The provisions briefly summarised above clearly assume that there is a respondent to the relevant complaint. Under s 3 of the Commission Act, respondent in relation to a complaint means the person or persons against whom the complaint is made. Clearly enough, therefore, when a complaint is lodged pursuant to s 46P of the Commission Act, the complaint must be against a person. A person, of course, may be an individual or some other entity that has legal personality. That is to say, there must be someone to respond to the complaint, being the person whose acts, omissions or practices are said to be unlawful under, relevantly, the Discrimination Act. That is not surprising having regard to the requirements of s 46PF that the President attempt to conciliate the complaint. The President must be able to identify a legal person who could participate in such a conciliation.

49    There was nothing wrong with the HRC dealing with “the firm name with a partnership carrying on business in the firm name”, as articulated by the Court in Devane, provided that it was possible to determine who the individuals were constituting the partnership to which the use of the firm name referred. The HRC had no apparent difficulty in being able to identify the legal persons who could participate, and did participate in the conciliation process, being the partnership using the name “Kott Gunning”.

50    There is not the slightest doubt that the partners of Kott Gunning were the legal persons against whom Mr Hastwell made his complaint to the HRC, both in the original complaint form read with its attachments, and throughout the complaint process, including conciliation, up to the point of termination of the complaint by the delegate of the President of the HRC. Everything that happened from the time of the lodgement of the complaint to its termination, especially including the conduct of the partner (and chairman of partners), Mr Hockless, who represented the partnership at conciliation meetings during the complaint process, served to confirm that original impression and reality.

51    At all times, the partnership name “Kott Gunning” was used as “a description of the individuals who compose the partnership” (Devane). The common law curial requirement of naming all the individual partners to a partnership, if it has any application at all to the HRC’s complaint process (which may be doubted), was not required in these circumstances. Rules of Court allowing for the use of firm names instead of individual partner names are a deliberate departure from a requirement that otherwise exists at common law for curial proceedings. There is no similar long-standing common law requirement for non-curial processes, such that there is no need for any special provision to allow that to take place.

52    The commonality of the complaint respondent and litigation respondent required by s 46PO(1) could not properly have been in doubt at any time in the proceedings before this Court, and certainly not once the amended originating application was filed. The arguments to the contrary advanced on behalf of Kott Gunning never came close to establishing any credible case to the contrary. It follows that Kott Gunning’s application for summary dismissal must be dismissed.

Costs

53    Prior to filing the initial interlocutory application, Kott Gunning’s solicitors wrote to Mr Hastwell’s solicitors advising that such an application would be made upon the basis that this Court did not have jurisdiction. The response on behalf of Mr Hastwell is as instructive as it proved to be insightful:

We do not understand the position your client has now taken. This is particularly so, given that:

1.    Our client’s complaint to the Australian Human Rights Commission (“AHRC”) identified Kott Gunning both by name and ABN. That was plainly sufficient to identify your client – whether or not the word “Lawyers” is part of your client’s legal name (and noting that your client represents itself at times in this style). This is not analogous to a complainant naming an entity that, on any view or naming variation, never existed.

2.    Further, the Notice of Termination dated 13 March 2017 issued by the AHRC refers to your client as ‘Kott Gunning’. This puts beyond any doubt that your client was relevantly the ‘respondent’ in the AHRC; cf section 46PR of the Australian Human Rights Commission Act 1986 (Cth); section 37M(1) of the Federal Court Act 1976 (Cth).

3.    But the most troubling aspect of your client’s current position is that your client fully participated in the AHRC process as if the complaint had sufficiently identified it and never raised any issue as to its existence as a legal entity for the purpose of that process. …

4.    For completeness, we also note that service of our client’s Originating Application was accepted by Ashley Crisp, a partner of Kott Gunning, by his email to Nicole Louvris of our office on Thursday 18 May 2017 at 1:06PM. Mr Crisp stated in that email “[o]n behalf of the partnership of Kott Gunning we accept your letter of 12 May 2017 with the attached Federal Court application by way of service.”

54    The letter from Mr Hastwell’s solicitors then outlined some issues with the naming of the respondents in the initial originating application and pointed out that those issues were to be addressed by filing an amended originating application, for which leave had already been granted. Reliance on the letter in relation to any prospective question of costs was also telegraphed. Kott Gunning and its legal representatives were told clearly enough about the problems that their argument would face before even the first interlocutory application was filed. Yet they persisted undeterred.

55    After Kott Gunning brought its initial summary dismissal application, the matter came before me at a case management hearing on 18 August 2017. At that time, a summary version of the very problems that were later ventilated at the hearing of Kott Gunning’s interlocutory application were raised by me. I gave the clearest indication that there may be costs consequences in persisting if those arguments did not prevail. That was a second opportunity to reconsider, which it seems was initially taken seriously, as the first interlocutory application was abandoned a short time later on 29 August 2017.

56    However, when it was suggested at a subsequent case management hearing on 1 September 2017 that Kott Gunning might preserve this jurisdictional point until after the trial, I made it clear that this was not acceptable due to the waste of time and money involved in going to trial if the summary judgment argument had any merit. This was the third opportunity for Kott Gunning and its lawyers to carefully consider the merits of their jurisdictional argument. The outcome was that Kott Gunning filed the present interlocutory application.

57    Kott Gunning have been on notice of the weakness of the case they sought to advance in challenging the jurisdiction of this Court to entertain and determine Mr Hastwell’s case since before the first interlocutory application was filed. The warning that there may be costs consequences if the application for summary judgment ultimately brought did not have sufficient merit could not have been clearer. Kott Gunning could not seriously have doubted that they, as a partnership, were the persons against whom Mr Hastwell brought his complaint. It was candidly admitted that the point was only thought of well after the termination of the complaint.

58    In all the circumstances, Mr Hastwell should not be left out of pocket in defending this baseless and ill-considered application. The written submissions filed for Mr Hastwell a considerable time before the hearing of the interlocutory application sought indemnity costs. No argument was made at the hearing of Kott Gunning’s application against that being awarded. No such credible argument is readily apparent.

Conclusion

59    Kott Gunning’s interlocutory application must be dismissed with indemnity costs, extending to all costs of and incidental to that application, including the prior abandoned interlocutory application and costs thrown away by reason of the adjournment of the hearing on 27 October 2017 at Kott Gunning’s request. Those costs should be payable forthwith upon their quantum being determined, and should not await the outcome of the substantive proceedings.

Postscript

60    It is important to conclude by observing that none of the foregoing has entailed any consideration at all, much less adjudication, of the merits of Mr Hastwell’s allegations. These reasons have not required any findings of credit at all for or against anyone.

61    The parties will be required to provide agreed or completing draft procedural orders to progress this case to trial, including fixing a trial date. Those proposed orders may also address the process for assessing the quantum of Mr Hastwell’s costs of this application, including by way of seeking a lump sum determination, as was previously attempted in relation to costs thrown away but left unresolved.

Associate:

Dated:    21 December 2017