FEDERAL COURT OF AUSTRALIA Jones v Scully [2001] FCA 879 RACIAL DISCRIMINATION – application to enforce declaration of Human Rights and Equal Opportunity Commission – where only one of the original complainants seeks an order to enforce – nature of de novo hearing PRACTICE AND PROCEDURE - summary dismissal WORDS AND PHRASES – "complainant" Racial Discrimination Act 1975 (Cth) s 25ZC Human Rights Legislation Amendment Act (No 1) 1999 Interpretation Act 1889 (UK) s 23(b) Executive Council of Australian Jewry v Scully (1998) 79 FCR 537 referred to Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 referred to No 20 Cannon St v Singer & Friedlander Ltd [1974] 1 Ch 229 referred to Harris v Caladine (1991) 172 CLR 84 referred to JEREMY JONES FOR HIMSELF AND FOR THE MEMBERS FOR THE TIME BEING OF THE COMMITTEE OF MANAGEMENT OF THE EXECUTIVE COUNCIL OF AUSTRALIAN JEWRY v OLGA SCULLY N 154 OF 2001 HELY J 13 JULY 2001 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 154 OF 2001 BETWEEN: JEREMY JONES FOR HIMSELF AND FOR THE MEMBERS FOR THE TIME BEING OF THE COMMITTEE OF MANAGEMENT OF THE EXECUTIVE COUNCIL OF AUSTRALIAN JEWRY APPLICANT AND: OLGA SCULLY RESPONDENT JUDGE: HELY J DATE OF ORDER: 13 JULY 2001 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The Notice of Motion filed on 25 May 2001 be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 154 OF 2001 BETWEEN: JEREMY JONES FOR HIMSELF AND FOR THE MEMBERS FOR THE TIME BEING OF THE COMMITTEE OF MANAGEMENT OF THE EXECUTIVE COUNCIL OF AUSTRALIAN JEWRY APPLICANT AND: OLGA SCULLY RESPONDENT JUDGE: HELY J DATE: 13 JULY 2001 PLACE: SYDNEY REASONS FOR JUDGMENT 1 On 21 September 2000 the Human Rights and Equal Opportunity Commission ("HREOC") determined that Mrs Olga Scully engaged in conduct rendered unlawful by Part IIA of the Racial Discrimination Act 1975 ("RDA") by "distributing anti-Semitic literature in letterboxes in Launceston, Tasmania, and by selling or offering to sell such literature at a public market in Launceston". HREOC made declarations that Mrs Scully should not repeat or continue the unlawful conduct and that she should apologise for her unlawful conduct by writing a letter of apology to the complainants in the terms specified in the decision. 2 That determination was made in proceedings in which the identity of the complainants was a matter of some controversy: see Executive Council of Australian Jewry v Scully (1998) 79 FCR 537, per Wilcox J. Ultimately HREOC concluded that the complainants should be identified as the Hobart Hebrew Congregation and Mr Jeremy Jones (in his capacity as Executive Vice-President of the Executive Council of Australian Jewry). HREOC's reasons, and the accompanying determination, were headed accordingly. 3 In the proceedings before Wilcox J, to which I earlier referred, his Honour did not find it necessary to determine whether the complaint by Mr Jones was a representative complaint falling within s 25L of RDA. At 550 his Honour said: "Mr Jones is a 'person aggrieved' because he is the executive officer of the National Jewish organisation, an organisation that represents the interests of Jews throughout the country, including in the Launceston area. Whether or not the complaint falls within s 25L of the Act, it is competently made under s 22(1)(a)." Section 22(1)(a) provided for a complaint to be lodged with the Commission by: "(a) A person aggrieved by the act, on that person's own behalf or on behalf of that person and another person or other persons aggrieved by the act;" 4 On 21 February 2001 an application styled: "Application under the Human Rights and Equal Opportunity Act 1986 and the Human Rights Legislation Amendment Act (No 1) 1999 to enforce a determination of unlawful discrimination by the Human Rights and Equal Opportunity Commission under the Racial Discrimination Act 1975" was filed with the Court. Olga Scully was named as the respondent to the application. The applicant was described as follows: "JEREMY JONES for himself and for the members for the time being of the Committee of Management of the Executive Council of Australian Jewry". The application claimed the following relief: "1. A Declaration that the Respondent has engaged in conduct rendered unlawful by Part IIA of the Racial Discrimination Act 1975 (Cth) by having distributed anti-Semitic literature in letterboxes in Launceston, Tasmania and by selling or offering to sell such literature at a public market in Launceston. 2. An Order that the Respondent be restrained from repeating or continuing such unlawful conduct. 3. An order that the Respondent forthwith deliver to the Applicant, Jeremy Jones, a written statement of apology, signed by the Respondent, in the following terms: 'I, Mrs Olga Scully, do hereby unreservedly apologise to you and to the Hobart Hebrew Congregation for my conduct in distribution (sic) anti-Semitic literature in letterboxes in Launceston, Tasmania, and by selling or offering to sell such literature at a public market in Launceston in contravention of the Racial Discrimination Act 1975 (Cth).' 4. An Order that the respondent pay the Applicant's costs. 5. Such further or other Orders as the Court may deem appropriate." 5 By a Notice of Motion filed on 25 May 2001 Mrs Scully seeks an order that the application should be summarily dismissed because: "3. it is not brought by a party to proceedings referred to in the Human Rights and Equal Opportunity Commission; 4. the terms of enforcement sought in the application are not the terms of the order made by the Human Rights and Equal Opportunity Commission; 5. the order made by the Human Rights and Equal Opportunity Commission was not made by a body authorised to exercise judicial power under the Constitution of the Commonwealth of Australia (see Brandy's case)." Jurisdiction of this Court 6 Division 3A of RDA included s 25ZC. Section 25ZC provided as follows: "25ZC(1) The Commission, the complainant, or a trade union acting on behalf of the complainant, may commence proceedings in the Federal Court for an order to enforce a determination made under subsection 25Y(1) or 25Z(1) after the commencement of this Division, except where the respondent to the determination is a Commonwealth agency or the principal executive of a Commonwealth agency. (2) If the Court is satisfied that the respondent has engaged in conduct or committed an act that is unlawful under this Act, the Court may make such orders (including a declaration of right) as it thinks fit. (3) The Court may, if it thinks fit, grant an interim injunction pending the determination of the proceedings. (4) The Court is not to require a person, as a condition of granting an interim injunction, to give an undertaking as to damages. (5) In the proceedings, the question whether the respondent has engaged in conduct or committed an act that is unlawful under this Act is to be dealt with by the Court by way of a hearing de novo, but the Court may receive as evidence any of the following: (a) a copy of the Commission's written reasons for the determination; (b) a copy of any document that was before the Commission; (c) a copy of the record (including any tape recording) of the Commission's inquiry into the complaint. (6) In this section: 'complainant': (a) in relation to a representative complaint – means any of the class members; and (b) in relation to a complaint made by a trade union on behalf of a person, not being a representative complaint – means the person on whose behalf the complaint was made; 'trade union' has the same meaning as in section 22." 7 Division 3A of RDA was repealed by Item 76 of Schedule 1 to the Human Rights Legislation Amendment Act (No 1) 1999 with effect from 13 April 2000: s 2(3). Section 13 of the 1999 Act is a transitional provision. Its effect is that the amendments made by Schedule 1 do not apply in relation to a complaint, where the holding of an inquiry into the complaint had started under the old RDA prior to the "starting day", and had not been withdrawn. "Starting day" is defined in s 4 as "the day on which this part commences". By virtue of s 2(3) that day is 13 April 2000. 8 In the present case, the complaint was lodged on 7 August 1996, and it was referred to the Commission for inquiry under s 24E of RDA on 23 March 1997. The history of the proceedings before HREOC is recounted in the decision of Mr Cavanagh QC given on 21 September 2000. It is sufficient for present purposes to record that this history establishes that the inquiry under the old RDA had started prior to 13 April 2000. The matter was heard on various dates ending on 16 November 1998 and the last of the written submissions was received by the Commission on 12 April 1999. Hence s 25ZC applies. Parties 9 Three things may be noted about the description of the applicant in these proceedings: - although Hobart Hebrew Congregation was a complainant before HREOC it is not included as an applicant in the proceedings in this Court; - Mr Jones is no longer described as acting in his capacity as Executive Vice-President of the Executive Council of Australian Jewry; - Mr Jones is described as acting for himself and for the members for the time being of the Committee of Management of the Executive Council of Australian Jewry. 10 It is clear from s 25ZC that subject to presently immaterial exceptions only the "complainant" before HREOC may bring enforcement proceedings in this Court. The "members for the time being of the Committee of Management of the Executive Council of Australian Jewry", whoever they may be, have not been identified as being amongst the complainants in the HREOC proceedings. Hence Mr Jones is not entitled to commence these proceedings on their behalf. The reference to those people in the title to these proceedings should be struck out. That would leave Mr Jones as the applicant in the proceedings in this Court. 11 Two questions arise. First, does s 25ZC of the RDA require that these proceedings be dismissed because Hobart Hebrew Congregation, a body corporate which was a complainant in the HREOC proceedings, is not an applicant in these proceedings? Second, does the fact that Mr Jones was described in the HREOC proceedings as acting in his capacity as Executive Vice-President of the Executive Council of Australian Jewry, but is not so described in the present proceedings, lead to the conclusion that these proceedings have been instituted by a person who was not the complainant in the HREOC proceedings? 12 There is no relevant definition of "the complainant" for the purposes of s 25ZC. In the case of a representative complaint (see s 22(1)(c); s 25L s 25ZC(6) defines the "complainant" as meaning any of the class members. In other sections, the complainant is the person or persons aggrieved by the act complained of in terms of s 22(1)(a) or (b) of the Act. 13 Both Wilcox J and Commissioner Cavanagh proceeded on the basis that each of Hobart Hebrew Congregation and Mr Jones was "a person aggrieved" by the alleged acts, hence each of them satisfied the description of the "complainant" in s 22(1)(a). That being so, each of them is entitled to commence proceedings to enforce the determination under s 25ZC. 14 Section 23(b) of the Acts Interpretation Act provides that "words in the singular number include the plural and words in the plural include the singular", however that does not mean that the singular cannot denote the singular. In No 20 Cannon St v Singer & Friedlander Ltd [1974] 1 Ch 229 at 241-242 Megarry J said of the corresponding provision in the Interpretation Act 1889 (UK): "Further, to 'include' the plural does not mean that the word must discard its singularity: the Act adds to the meaning of the word, rather than changing it. It would indeed be remarkable if, for example, a statute worded in terms of 'landlord' and 'tenant' applied to every case where there was a landlord and a tenant in the singular or landlords and tenants in the plural, but not to cases where there were plural landlords and a singular tenant, or vice versa. In my judgment, subject always to the context, the Interpretation Act 1889 authorises a process of selective pluralising or, for that matter, singularising." 15 An interpretation of "complainant" so as to require all complainants to join in enforcement proceedings where there was more than one complainant, would result in an unacceptably narrow interpretation of the word in the context of the provision and the Act. For example, if there were two complainants, one only of whom was successful, the unsuccessful party may have no interest in applying to enforce the determination. Yet, on the interpretation advanced by the respondent, the enforcement of the determination by the party in whose favour the determination was made could be frustrated if the unsuccessful party failed to join in enforcement proceedings. The purposes of the Act would not be furthered by the adoption of a construction which produced that result. Beneficial legislation would not ordinarily be construed in that way. That is particularly so when s 25ZC(6) does not require all members of a class to be parties to enforcement proceedings. 16 In my view, the "complainant" in s 25ZC encompasses a single complainant even in a case where there is more than one complainant. 17 It is an incontrovertible fact that Mr Jones was a complainant before HREOC and Mr Jones is the applicant in these proceedings. The fact that he was described in the HREOC proceedings as a complainant in his capacity as Executive Vice-President of the Executive Council of Australian Jewry may explain why he was "a person aggrieved" by the acts complained of. The fact that he is not so described in the title to the present proceedings simply leads nowhere. Hearing de novo 18 Section 25ZC(5) provides that the question whether the respondent has engaged in unlawful conduct under RDA is to be dealt with by way of hearing de novo, subject to the Court's entitlement to receive specified types of documents as evidence. The nature of a hearing de novo was described by Dawson J in Harris v Caladine (1991) 172 CLR 84, 124 as follows: "An order made by a Registrar is reviewable by way of a hearing de novo. That means that the court reviewing the order begins afresh and exercises for itself any discretion exercised below by the Registrar. The parties commence the application again, subject to any restrictions in the rules upon the calling of evidence or provisions relating to the use before the court of evidence called before the Registrar. A hearing de novo involves the exercise of the original jurisdiction and 'the informant or complainant starts again and has to make out his case and call his witnesses'". (citations omitted) 19 The respondent contends that in a de novo hearing "exactly the same case must be re-heard". The fact that one complainant is not a party to the proceedings, and the remaining complainant no longer seeks relief which he failed to secure in the HREOC proceedings "make a de novo hearing impossible". There is no substance in this contention. The effect of s 25ZC(5) is simply that the Federal Court is to determine for itself on the basis of the materials before it whether the respondent has engaged in unlawful conduct under RDA. That the Federal Court is to determine this question by way of hearing de novo does not mean that the Federal Court proceedings must mimic the HREOC proceedings in all respects. 20 The respondent also complains that the orders sought in the application are not the terms of the order made by HREOC. That is simply not so. The only order which is sought in the application which was not referrable to the HREOC decision is the order for costs, which is based on the jurisdiction of the Court under s 43 of the Federal Court of Australia Act 1976 (Cth). In all other respects, there are no substantial differences between the orders made and the orders sought. In any event, the Court as a judicial body is not bound to make the same orders as HREOC, but can make whatever orders it thinks fit: s 25ZC(2). 21 The respondent also submitted that the form of apology which the applicant seeks is a nonsense in its use of the term "anti-Semitic" as opposed to "anti-Jewish". The contentious phrase "anti-Semitic" is the same as is used in the HREOC determination. In any event, it is not appropriate that the content and form of an apology should be dealt with on a strike out motion or summary judgment application. It is an issue that should be dealt with at a substantive hearing of the matter. Judicial power 22 The respondent did not elaborate on this submission referred to in par 5 or explain how or in what way the HREOC determination was invalidated on the basis that it constitutes an impermissible exercise of judicial power: cf Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245. 23 The HREOC determination is a statutory precondition to the jurisdiction of this Court to find that the respondent has engaged in conduct or committed an act which is unlawful under RDA. The changes made to RDA in the light of the decision in Brandy make it clear that the HREOC determination is not binding or enforceable per se. Conclusion 24 The application for summary judgment is dismissed with costs. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely. Associate: Dated: 13 July 2001 Counsel for the Applicant: S Rothman SC Solicitor for the Applicant: Geoffrey Edwards & Co The respondent appeared in person Date of Hearing: 14 June 2001 Date of Judgment: 13 July 2001