De Alwis v Hair [2003] FCA 10 (9 January 2003)

Last Updated: 14 January 2003

FEDERAL COURT OF AUSTRALIA

De Alwis v Hair [2003] FCA 10

HUMAN RIGHTS - Disability Discrimination Act 1992 (Cth) - interlocutory relief pending determination of complaint by Human Rights and Equal Opportunity Commission - claim for interlocutory relief in Federal Magistrates Court - claim under s 46PP of Human Rights and Equal Opportunity Commission Act 1986 - claim dismissed - appeal to Federal Court - claim for like interlocutory order - concurrent claim under Administrative Decisions (Judicial Review) Act 1977 (Cth) - no relevant statute or administrative decision identified - international cricket match - Australia versus Sri Lanka - umpires - Sri Lankan bowler - previous no ball decisions by umpire for alleged throwing - bowler said to suffer disability affecting mode of bowling - alleged prejudicial statements by umpire in autobiography - applicant Sri Lankan national - cricket spectator - claim for interlocutory order dismissed - notice of appeal and claim for relief under ADJR Act struck out - leave to file properly formulated notice of appeal.

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

Federal Court of Australia Act 1976 (Cth) s 25

Administrative Decisions (Judicial Review) Act 1977 (Cth)

VIJITHA DE ALWIS v DARRELL HAIR AND OTHERS

W6 OF 2003

FRENCH J

9 JANUARY 2003

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W6 OF 2003

BETWEEN:	VIJITHA DE ALWIS APPLICANT
AND:	DARRELL HAIR, AUSTRALIAN CRICKET BOARD, ROSS EMERSON and INTERNATIONAL CRICKET COUNCIL RESPONDENTS
JUDGE:	FRENCH J
DATE OF ORDER:	9 JANUARY 2003
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The motion filed on 8 January 2003 is dismissed.

2. The Notice of Appeal/Urgent Application filed on 8 January 2003 is struck out.

3. There is leave to file a Notice of Appeal properly formulated within seven days.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W6 OF 2003

BETWEEN:	VIJITHA DE ALWIS APPLICANT
AND:	DARRELL HAIR, AUSTRALIAN CRICKET BOARD, ROSS EMERSON and INTERNATIONAL CRICKET COUNCIL RESPONDENTS

JUDGE:	FRENCH J
DATE:	9 JANUARY 2003
PLACE:	PERTH

REASONS FOR JUDGMENT

1 On 23 December 2002, Mr Vijitha De Alwis filed an application in the Federal Magistrates Court of Australia, said to be brought under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (HREOC Act). He named as respondents to that application Mr Darrell Hair and Mr Ross Emerson, both said to be care of the Australian Cricket Board. The orders he sought in the Federal Magistrates Court were in the following terms:

"1. That Mr Darrell Hair not be appointed to umpire at the cricket matches where Mr Muttiah Muralidaran (sic) will play.

2. That the Australian Cricket Board be ordered not to appoint Mr Hair to officiate at cricket matches where Mr Muralidaran (sic) will play.

3. That Mr Ross Emerson be ordered to refrain from making discriminatory statements about Mr Muralidaran (sic).

4. Damages be paid by Mr Hair and Mr Emerson."

Interim or procedural orders sought were:

"1. That Mr Hair be restrained from umpiring at the matches where Mr Muralidaran is playing until final orders are made as an urgent ex-parte injunction.

2. That the Australian Cricket Board be ordered to remove Mr Hair from officiating at the matches where Mr Muralidaran will be playing.

4. That Vijitha Gamini De Alwis, Spectator and Supporter, be granted leave to appear as amicus curiae." (sic)

2 The application for interlocutory relief restraining Mr Hair from umpiring cricket matches in which Mr Muralitharan was playing came on for hearing before Bryant CFM on 24 December 2002. It appears from affidavit material and from what was said to the Chief Federal Magistrate in the course of that hearing, which was ex parte, that Mr De Alwis was relying upon s46PP(1) of the HREOC Act which provides:

"At any time after a complaint is lodged with the Commission, the Federal Court or the Federal Magistrates Court may grant an interim injunction to maintain:

(a) the status quo, as it existed immediately before the complaint was lodged; or

(b) the rights of any complainant, respondent or affected person."

At the time the application to the Federal Magistrates Court was made, a complaint had been lodged with the Human Rights and Equal Opportunity Commission (the Commission) by Mr De Alwis in which he purported to be complaining on behalf of Mr Muttiah Muralitharan in his capacity as a supporter and spectator and that he was complaining on the basis that Mr Muralitharan had been discriminated against because he has a disability. In substance, the complaint as set out in the application to the Commission was that in the 1995 cricket season Mr Darrell Hair, an umpire, had "called" Mr Muralitharan seven times at the Melbourne Cricket Ground. This is a reference to "no ball" rulings against Mr Muralitharan. That appears from other materials filed subsequently. Mr De Alwis' affidavit in the Federal Magistrates Court stated:

"Later in Adelaide, Mr Emerson called Mr Muralidaran (sic). Mr Emerson called him in the 1999 season as well. Mr Emerson has made an unfair comment which was repeated in The West Australian newspaper on the 14 December 2002. Mr Hair has been appointed by the Australian Cricket Board to officiate at the One Day International matches in which Mr Muralidaran (sic) is due to play for Sri Lanka.

Mr Hair is biassed (sic) and prejudiced against Mr Muralidaran. He has called Muralidaran's bowling action as "diabolical" in his Autobiography published in Australia. At the time he wrote, he was well aware that Mr Muralidaran has a physical disability in his bowling arm. He has not retracted from his position yet. He stated in his autobiography that if he is asked to umpire he will call Mr Muralidaran again. (sic)

I have made a complaint to the Human Rights and Equal Opportunity Commission (Federal). A copy of the Complaint together with the annexures is annexed hereto. Photocopies of newspaper cuttings of the news reports relating to Mr Hair's appointment as Umpire this season and his unfair comments that are discriminatory and of Mr Emerson's harsh and discriminatory comments are annexed hereto.

The Australian Cricket Board has not responded to my letter of 14.12.02 on the subject.

There is perceived bias and Mr Hair cannot be expected to be fair and reasonable in his judgment when umpiring at the matches where Mr Muralidaran (sic) will be playing.

Mr Hair has disqualified himself by stating the biassed (sic) statements that are discriminatory in nature in his autobiography. Grave prejudice will be caused to Mr Muralidaran (sic) if Mr Hair is allowed to officiate and judge him. Several thousands in Australia, in the other cricket playing countries and a few million cricket fans in Sri Lanka have a reasonable and a legitimate expectation that fair "Judges" be appointed to umpire at the cricket matches played in Australia."

That was the substance of the complaint made to the Commission. That complaint has not yet been determined. In the materials submitted to the Chief Federal Magistrate there was also a printout from a Web site concerning the controversy involving Mr Muralitharan's bowling action and what was said to be evidence of a flexion deformity in his arm which affected his bowling.

3 The Chief Federal Magistrate, after hearing from Mr De Alwis on 24 December said, inter alia, that she was satisfied that an application had been made to the Commission by the applicant which provided at least the initial basis upon which an interim injunction could be sought under s 46PP. She referred then to the case law involving the grant of such injunctions and their discretionary character. She expressed doubt that the HREOC Act envisaged that an affected person who could bring a complaint was extended to a person in the position of the applicant whose interest, at best, she described as extremely tenuous. However, she did not decide the application on that point.

4 The question whether there was an arguable case, she said, required a consideration of the application to the Commission. In the event that the complaint was terminated by the Commission, it could then find its way to the court. The complaint made to the Commission, as she characterised it, was essentially that Mr Muralitharan suffered from an alleged disability called flexion deformity. It was alleged in the article taken from the Web site to which she referred that the shape of his arm is such that he has a deformity and that this may make it look as if his arm is bent when he is bowling. The applicant had alleged that as a result of that deformity Mr Muralitharan had been discriminated against by Mr Hair, the umpire, who had formed the view that his bowling action was illegal under the rules of cricket and was now biased against Mr Muralitharan on account of his disability. The Chief Federal Magistrate said:

"When pressed by me to indicate the nature of the discrimination the applicant first indicated that he had standing as a result of the reference to a class member, section 4 being the interpretation section of the Disability Discrimination Act 1992. I indicated to the applicant that that particular definition had been omitted by act number 133 of 1999 which came into effect in 2000. The applicant asserts that there is disability discrimination under section 5, that there is indirect disability discrimination under section 6, and that the discrimination occurs both in Mr Muralitharan's work, as he is a professional cricketer, and pursuant to section 28 in sport as he is likely to be excluded thereby from a sporting activity."

She adverted to the definition of a "discriminator" under s 5 of the Disability Discrimination Act 1992 (Cth) and said:

"It is clear in my view that the basis of disability discrimination is that the person bringing the application must be the aggrieved person and the discriminator is the person who is doing the discrimination. Absent any ability for some kind of class action, on the face of it there is no capacity for a third person who does not suffer a disability to bring an action or seek an injunction on behalf of a person who it is alleged suffers a disability."

She referred then to other provisions of the Disability Discrimination Act upon which the applicant sought to rely and his attempt to have himself included in the protected class of associates of persons discriminated against. She found no basis to suggest that any employer was discriminating against Mr Muralitharan for the purposes of s 15 and that, in any event, it was clear that the term "associates" there used was limited to associates who have a disability. That was not Mr De Alwis' position.

5 The learned Chief Magistrate discussed s 17 which dealt with discrimination against contract workers and noted the applicant's argument that the Australian Cricket Board has a contract with persons to whom it sells tickets to matches, the class of which was said to include the applicant. Section 17, she held, was limited to contract workers and did not envisage the contract of a kind the applicant relied upon. In any event, again it was clear from the wording of the section that the disability referred to must relate to the associate. Then she referred to s 16 which deals with discrimination against commission agents and said:

"... refers to the unlawfulness of a principal discriminating against a person on the ground of the person's disability or a disability of any of that person's associates."

She referred also to s 27 and 28 of the Act and said:

"The applicant is not able in my view to bring himself within any of those sections and accordingly to give himself any standing to bring this application. There is accordingly no arguable ground by reason of which the commission could grant relief or, if the matter was terminated by the commission, any arguable basis on which the court could grant relief to the applicant." (sic)

On that basis, inter alia, she dismissed not only the motion but also the substantive application before her. She said that it was incumbent on the person bringing an application to make sure that there was a jurisdictional basis for doing so. She held that there was clearly none in that case. The applicant had sought, in the course of argument, to withdraw his application, saying that he would do further research and bring a further application. The learned Chief Magistrate noted that the Federal Magistrates Court Rules provided for discontinuance. However, she was not prepared to grant leave to discontinue. She did so on the basis that, in her view, the application was completely misconceived and could also be dismissed on the alternative basis that it was an abuse of the process of the court.

6 The formal orders that were made by the Chief Federal Magistrate were as follows:

"1. The Notice of Motion and the application, both filed on 23 December 2002 by the applicant and heard on an ex parte basis be dismissed.

2. Any further proceedings by the applicant for injunctive relief under the Human Rights and Equal Opportunity Act 1986, save for an appeal against this decision be permanently stayed."

7 On 8 January 2003, that is to say, yesterday, the applicant filed, in this Court, a document headed "Notice Of Appeal/Urgent Injunction for an Ex-Parte Interim Injunction". The title to the document also included the following words:

"On appeal from the decision of the Chief Federal Magistrate to refuse an application for an urgent ex-parte Interlocutory Injunction."

And below that:

"A new Application to the Federal Court under the provisions of The Administrative Decisions (Judicial Review) Act, to Review the Decision of The Australian Cricket Board and the International Cricket Council to appoint Mr Darrel Hair to officiate at the matches where Mr Muttiah Muralidharan will play." (sic)

It appears, on the face of this notice of appeal, that reliance is placed both upon the appellate jurisdiction of the Court in respect of the decision of the Federal Magistrates Court, and the original jurisdiction of the Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). The relevant appellate jurisdiction is conferred on this Court by subs 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) (the Act) which covers appeals from judgments of the Federal Magistrates Court. Section 25 provides:

"The appellate jurisdiction of the Court shall, subject to this section and to the provisions of any other Act, be exercised by a Full Court."

And then in subsection (1A):

"The appellate jurisdiction of the Court in relation to an appeal from a judgment of the Federal Magistrates Court is to be exercised by a Full Court unless the Chief Justice considers that it is appropriate for the appellate jurisdiction of the Court in relation to the appeal to be exercised by a single Judge."

8 The Chief Justice has, of course, not had any opportunity to consider that issue in relation to the final hearing of this appeal insofar as the appellate jurisdiction is invoked. He will, no doubt, have that opportunity in due course. The appellate provisions of the Act also conferred certain powers on single judges. They do not extend, in my opinion, to confer a power to grant an injunction of the kind now sought which is, in essence, the same order that was being sought and was refused by the Chief Federal Magistrate. That power would in effect determine the outcome of the appeal and be exercised by a single judge not authorised, absent a direction of the Chief Justice so to exercise it.

9 This is a matter which obviously was not considered by Mr De Alwis and upon it being brought to his attention by the Court, he indicated that although the matter had been listed on the basis that it was urgent and that a relevant match was proceeding today in which Mr Hair would be umpiring, that advice, which he had given to the Court when he filed the application and sought an urgent hearing of it, was wrong. He now seeks simply an adjournment of this interlocutory application.

10 I asked the applicant to indicate the basis upon which the application invokes the jurisdiction of the ADJR Act. I pointed out to Mr De Alwis that the provisions of the ADJR Act confer jurisdiction on the Federal Court to hear applications for review of administrative decisions made under enactments. Broadly speaking, an enactment is a law of the Commonwealth or a piece of delegated legislation or instrument made under a law of the Commonwealth. An administrative decision made under an enactment is a decision which is made in the exercise of a power or discretion conferred upon an official by that enactment. There was nothing on the materials before me to indicate any basis upon which a decision of the Australian Cricket Board or the International Cricket Council or any individual umpire could fall into that category. Mr De Alwis was asked to identify the relevant enactment which he was relying upon to support his invocation of the jurisdiction of the Court as the enactment under which decisions had been made of which he complained. He was unable to do so beyond repeated reference to what he called the "mother of all laws, the Constitution of the Commonwealth". That, however, is not an enactment for the purposes of judicial review of this character.

11 The jurisdiction of the Court in relation to the ADJR Act does not extend to this application and, to that extent, the application will be struck out at the threshold. It is inappropriate for the Court to allow an application to proceed and to be served on other parties when it becomes apparent to a Judge of the Court, as it has in this case, that the application so far as it invokes the original jurisdiction of the Court is utterly misconceived. Other persons who are named as respondents to the application should not be put to the expense and trouble of responding to it when it is, to put not too harsh a description on it, nonsensical in relation to its invocation of the ADJR Act.

12 What I propose to do is to dismiss the motion for ex parte relief and I will strike out the application insofar as it seeks any relief under the ADJR Act. I will direct Mr De Alwis to file a fresh notice of appeal within seven days which conforms with the requirements of the forms of Court.

13 The orders are:

1. The motion filed on 8 January 2003 is dismissed.

2. The notice of appeal/urgent application filed on 8 January 2003 is struck out.

3. There is leave to file a notice of appeal properly formulated within seven days.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Acting Associate:

Dated: 13 January 2003

	Mr VG De Alwis appeared in person
Counsel for the Respondent:	No appearance
Date of Hearing:	9 January 2003
Date of Judgment:	9 January 2003