FEDERAL COURT OF AUSTRALIA Jandruwanda v Regency Park College of TAFE [2003] FCA 1455 Application for leave to appeal – appeal futile if leave granted – review of decision of the Human Rights and Equal Opportunity Commission terminating complaint – different complaint and different respondents Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 46PO Federal Court of Australia Act 1976 (Cth) s 25 University of South Australia Act 1990 (SA) Technical and Further Education Act 1975 (SA) Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 56 Dudzinski v Kellor [1999] FCA 1264 Austral Pacific Group Ltd (in liq) v Airservices Australia (2000) 203 CLR 136 JENNIFER JANDRUWANDA v REGENCY PARK COLLEGE OF TAFE and ORS S 544 of 2003 SELWAY J 12 DECEMBER 2003 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 544 OF 2003 BETWEEN: JENNIFER JANDRUWANDA APPLICANT AND: REGENCY PARK COLLEGE OF TAFE FIRST RESPONDENT WORKING WOMEN'S CENTRE SECOND RESPONDENT COLLEEN ROSS THIRD RESPONDENT JUDGE: SELWAY J DATE OF ORDER: 12 DECEMBER 2003 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1 The application for leave to appeal is dismissed. 2 The applicant to pay the costs of each of the respondents. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 544 OF 2003 BETWEEN: JENNIFER JANDRUWANDA APPLICANT AND: REGENCY PARK COLLEGE OF TAFE FIRST RESPONDENT WORKING WOMEN'S CENTRE SECOND RESPONDENT COLLEEN ROSS THIRD RESPONDENT JUDGE: SELWAY J DATE: 12 DECEMBER 2003 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 The issue arising in this case is whether the applicant should have leave to appeal from the decision of a Federal Magistrate. The Magistrate dismissed the applicant's proceedings against the respondents in which the applicant had sought various orders in relation to alleged racial discrimination. The Federal Magistrate held that the respondents had not been the respondents to a complaint made to the Human Rights and Equal Opportunity Commission ('HREOC') and that consequently the Federal Magistrate lacked jurisdiction to consider the application by reason of s 46PO(1) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ('the Act'). For the reasons given below I am of the view that at the very least the relevant complaints had not been the subject of a complaint to HREOC as required by s 46PO(3) of the Act and that consequently any appeal, if leave were granted, has no prospects of success. The application for leave to appeal is dismissed. 2 In July 2001, the applicant filed a complaint with the Office of the Commissioner for Equal Opportunity in South Australia alleging that the University of South Australia had discriminated against her by not accepting her enrolment to a particular course. The Commissioner was acting as an agent for HREOC. In January 2003, HREOC terminated the complaint on the basis that it was lacking in substance. 3 On 3 February 2003, the applicant filed an application in the Federal Magistrates Court purportedly pursuant to s 46PO(1) of the Act. After amendment, the respondents to that application were the University of South Australia and the first and second respondents. It would appear that the basis of the complaint against the first and second respondents had nothing to do with the previous complaint against the University of South Australia. Rather, it was related to a complaint that the first respondent had unlawfully or unfairly dismissed her from employment in June 2000. The complaint against the second respondent was related to its involvement in the settlement of a subsequent action for unfair dismissal brought by the applicant against the first respondent. 4 Ms Ross, the third respondent, had previously been a respondent to the application to the Federal Magistrates Court apparently on the basis that she had provided some legal services to the applicant on the instructions of the second respondent. She was removed as a party when the second respondent was added. 5 The second and third respondents applied to have the application before the Federal Magistrate dismissed insofar as it concerned them on the basis that they were not properly parties to it because no complaint had been made to HREOC against them. The learned Federal Magistrate acceded to that application on that basis. He made an order for costs against the applicant in favour of the first and second respondents and in favour of Ms Ross (see [2003] FMCA 205). 6 The applicant has applied for leave to appeal to this Court from the orders made by the Federal Magistrate. All of the respondents have filed a notice of motion seeking to have the application for leave to appeal dismissed on the basis that an appeal has no prospects of success. It is obviously convenient that the application for leave to appeal be disposed of if it is not arguable. On the other hand, it is not obvious that the usual rules of Court relating to summary dismissal of proceedings have any obvious application to applications for leave to appeal. It seems to me that the appropriate course is for me to consider whether leave to appeal should be granted and for this purpose to consider whether there is an arguable case that the applicant could raise on an appeal. I note that a single Judge has jurisdiction to grant or refuse leave to appeal: s 25(2) Federal Court of Australia Act 1976 (Cth). 7 Although the decision of the Federal Magistrate respecting the current respondents was an interlocutory decision from which leave is required, it was not a decision which merely affected practice and procedure. It ultimately determined the applicant's rights against the respondents. In accordance with the usual principles for the grant of leave to appeal in such a case, leave would usually be granted if there is any doubt about the decision at first instance: see Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 at 584, at [43]; Dudzinski v Kellor [1999] FCA 1264 at [9]-[10]. 8 In this case the issue turns upon s 42PO of the Act which provides in part: '(1) If: (a) a complaint has been terminated by the President under section 46PE or 46PH; and (b) the President has given a notice to any person under subsection 46PH(2) in relation to the termination; any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Magistrates Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint. Note: Part IVA of the Federal Court of Australia Act 1976 allows representative proceedings to be commenced in the Federal Court in certain circumstances. (2) The application must be made within 28 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows. (3) The unlawful discrimination alleged in the application: (a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or (b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint. …' 9 The learned Federal Magistrate struck out the proceedings apparently on the basis that the current respondents were not the same respondents as the respondents before HREOC. This is certainly true of the second and third respondents. However, the issue may be more arguable in relation to the first respondent. The relevant respondent before HREOC was the University of South Australia. That is a statutory authority established for public purposes by the University of South Australia Act 1990 (SA) ('University Act'). It is not an 'instrumentality of the Crown': s 4(3) of the University Act. Nevertheless it may be an aspect of 'the State of South Australia' for the purposes of the Constitution: see Austral Pacific Group Ltd (in liq) v Airservices Australia (2000) 203 CLR 136 at 152-153, at [48]. The first respondent is a College established under the Technical and Further Education Act 1975 (SA). It would not appear to have corporate status and it may be that it is not properly described in the application. On any view, however, it is an aspect of the State of South Australia for the purpose of the Constitution. It is at least possible that both the University of South Australia and the first respondent are, or at least could be, the same juristic entity at least for the purposes of federal jurisdiction. 10 It is unnecessary to explore these issues any further. Whatever view may be taken of the relationship between the University of South Australia and the Regency Park College of TAFE it is clear that in this case the relevant acts or omissions of the respondents about which the applicant now complains are very different acts and omissions from those of the University of South Australia about which the applicant separately complains. The applicant accepted that this was so. Indeed, she informed me that she instructed her then lawyers (the Aboriginal Legal Rights Movement) to complain to HREOC in relation to her dismissal by the first respondent and in relation to her representation by the second respondent, but that they declined to do so. The applicant accepted that the two complaints were separate and distinct. 11 Under s 46PO(3) of the Act the Federal Magistrates Court had no jurisdiction to hear the application concerning the three respondents. If the applicant wished to pursue any issues of unlawful discrimination against any of the respondents it was necessary for her to first make a complaint to HREOC. Having not done so the appropriate orders were the orders made by the learned Federal Magistrate summarily dismissing the proceedings insofar as they concerned the respondents and awarding them costs. 12 On this basis it is clear that the applicant cannot succeed on her appeal if leave was granted. It would be futile to grant leave to appeal. The application for leave is dismissed. The applicant should pay the costs of each of the respondents. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway. Associate: Dated: 12 December 2003 Counsel for the Applicant: The Applicant appeared in person Counsel for the First Respondent: M Grant Solicitor for the First Respondent: Crown Solicitor's Office Counsel for the Second and Third Respondents: S Lieschke Solicitor for the Second and Third Respondents: Lieschke & Weatherill Date of Hearing: 21 November 2003 Date of Judgment: 12 December 2003