Grigor-Scott v Jones [2008] FCAFC 14 (28 February 2008)

ANTI DISCRIMINATION LAW – racial discrimination – complaint lodged with Human rights and Equal Opportunity Commission – complaint terminated – application to Federal Court – where action lies only against the respondent to the terminated complaint - whether appellant was respondent to complaint in the Commission - whether respondent requires extension of time – whether proceeding competent.

Human Rights and Equal Opportunity Commission Act 1986 (Cth) s3
Racial Discrimination Act 1975 (Cth) ss 18C, 18D, 46

Cockerill v Westpac Banking Corporation (1991) 32 FCR 36 cited
Executive Council of Australian Jewry v Scully (1988) 79 FCR 537 cited
Jones v Toben [2002] FCA 1150 cited
Ketteman v Hansel Properties Ltd [1987] 1 AC 189 cited
State of Western Australia v Wardley Australia (1991) 30 FCR 245 cited

ANTHONY GRIGOR-SCOTT v JEREMY JONES
NSD261 OF 2007

EMMETT, LANDER & TRACEY JJ
28 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD261 OF 2007

BETWEEN:	ANTHONY GRIGOR-SCOTT Appellant
AND:	JEREMY JONES Respondent

JUDGES:	EMMETT, LANDER & TRACEY JJ
DATE OF ORDER:	28 FEBRUARY 2008
WHERE MADE:	SYDNEY

3. In lieu of those orders, it be ordered that the proceeding be dismissed as incompetent.
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	NSD261 OF 2007

BETWEEN:	ANTHONY GRIGOR-SCOTT Appellant
AND:	JEREMY JONES Respondent

JUDGES:	EMMETT, LANDER & TRACEY JJ
DATE:	28 FEBRUARY 2008
PLACE:	SYDNEY

1 On the application of the respondent, Mr Jeremy Jones, a judge of the Court declared, on 2 February 2007, that the appellant, Mr Anthony Grigor-Scott, had engaged in conduct rendered unlawful by Part IIA of the Racial Discrimination Act 1975 (Cth) (the Discrimination Act) by having published or allowing to be published, on the World Wide Web, a document described as "Bible Believers’ Newsletter # 242". His Honour also ordered Mr Grigor-Scott to remove that document from the relevant website and restrained Mr Grigor-Scott from publishing or republishing, to the public, that document, any material with substantially similar content to that document and any other material that conveys any of the following imputations:

2 Mr Jones is the President of the Executive Council of Australian Jewry. There is no separate legal entity in Australia having that name. Mr Grigor-Scott claims to be a minister of Bible Believers’ Church. There is no separate legal entity in Australia known by that name.

3 The proceeding in which the declarations were made was commenced in the name ‘Jeremy Jones, and on behalf of the Executive Council of Australian Jewry’. When the proceeding was commenced, the only respondent named was ‘The Bible Believers’ Church’. Subsequently, an order was made that Mr Grigor-Scott be joined as a respondent.

4 On 22 February 2007 a notice of appeal was filed, which named ‘Bible Believers’ Church’ and ‘Anthony Grigor-Scott’ as appellants. Mr Jones was named as respondent. At the conclusion of the hearing of the appeal on 20 November 2007, the Full Court ordered that Bible Believers’ Church be removed as an appellant, having regard to the fact that there is no legal entity of that name that could be a party to the appeal.

5 There is a question in the appeal concerning the competence of the proceeding, including the competence of the order purporting to join Mr Grigor-Scott as a respondent. No question has been raised concerning the standing of Mr Jones, notwithstanding the description of him as being a party on behalf of the Executive Council of Australian Jewry. Before dealing with the issues in the appeal, it is necessary to explain the statutory framework within which the proceeding was purportedly commenced in the Court.

6 Part IIA of the Discrimination Act, which consists of ss 18B to 18F inclusive, deals with the prohibition of offensive behaviour based on racial hatred. Section 18C(1) provides that it is unlawful for a person to do an act, otherwise than in private, if:

Section 18C specifies when an act is taken not to be done in private but has no present relevance.

7 Section 18D exempts certain conduct from the operation of s 18C. Thus, s 18C does not render unlawful anything said or done reasonably and in good faith:

8 Part IIB of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (the Commission Act) deals with redress for unlawful discrimination. Under s 3 of the Commission Act, unlawful discrimination includes, relevantly, any acts, omissions or practices that are unlawful under Part IIA of the Discrimination Act. Division 1 of Pt IIB, which consists of ss 46P to 46PN inclusive, deals with conciliation by the President of the Human Rights and Equal Opportunity Commission (the Commission) following the lodging of a complaint with the Commission alleging unlawful discrimination. Division 2 of Pt IIB, which consists of ss 46PO to 46PV inclusive, deals with proceedings in the Federal Court and the Federal Magistrates Court where a complaint has been terminated by the President of the Commission (the President).

9 Section 46P(1) of the Commission Act authorises the lodging of a written complaint with the Commission alleging unlawful discrimination. The complaint may be lodged by a person aggrieved by the alleged unlawful discrimination. If such a complaint is made to the Commission, s 46PD requires the Commission to refer the complaint to the President. Under s 46PF(1), if a complaint is referred to the President, the President must inquire into the complaint and attempt to conciliate the complaint. Under s 46PF(3), any complainant or respondent may, with the leave of the President, add as a respondent a person who is alleged to have done the alleged unlawful discrimination.

10 Section 46PF(3) is important for the purpose of this appeal. It allows a complainant or respondent to amend the complaint to add as a respondent a person who is alleged to have done the alleged unlawful discrimination with the leave of the President. It contemplates that the appropriate person or entity who is alleged to have committed an act of unlawful discrimination should always be a respondent to the complaint before the Commission.

11 Under s 3 of the Commission Act, complaint is defined as a complaint lodged under Div 1 of Pt IIB. Complainant, in relation to a complaint is defined as meaning a person who lodged the complaint, whether on the person’s own behalf or on behalf of another person or persons. Affected person, in relation to a complaint, means a person on whose behalf the complaint was lodged. Respondent, in relation to a complaint, means the person or persons against whom the complaint is made.

12 Other provisions of Div 1 of Pt IIB of the Commission Act provide the President with a number of powers to assist in the conciliation procedure. Importantly, under s 46PJ(3), the President can hold a compulsory conference and, if the President does so, the President may, by notice, direct each complainant and each respondent to attend the conference. For that reason, the President needs to know against whom the complaint is made so that that respondent can be notified in accordance with that provision.

13 Under s 46PH(1), the President may terminate a complaint on any of several grounds, including that the President is satisfied that there is no reasonable prospect of the matter being settled by conciliation. If the President decides to terminate a complaint, the President must notify the complainant in writing of that decision and of the reasons for that decision.

14 Whilst s 18C(1) of the Discrimination Act describes an act as unlawful, the Discrimination Act does not provide any person with any cause of action in regard to that unlawful act. Instead, the Commission Act provides a procedure whereby the person aggrieved by the unlawful act may complain to the Commission.

15 The purpose of Div 1 Pt IIB of the Commission Act is clear. It provides a procedure whereby a party might bring to the attention of the Commission any claim of unlawful discrimination. The Commission’s duty then, through the President, is to attempt to conciliate the complaint. If there is no reasonable prospect of the complaint being settled by conciliation, it may be terminated. No cause of action maintainable in a Court is given to an aggrieved person who complains under s 46P in relation to unlawful discrimination until the President has terminated the complaint.

16 Section 46PO(1) relevantly provides that, if a complaint has been terminated by the President under s 46PH and the President has given a notice notifying the complainant in writing of that decision, a person who was an affected person in relation to the complaint may make an application to the Federal Court alleging unlawful discrimination by one or more of the respondents to the terminated complaint. Under s 46PO(2) the application must be made within 28 days after the date of issue of the notice under s 46PH(2) or within such further time as the Court allows. Section 46PO(3) relevantly provides that the unlawful discrimination alleged in the application to the Court must be the same (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint or must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.

17 Section 46PO(4) relevantly provides that, if the Court is satisfied that there has been unlawful discrimination by any respondent, the Court may make such orders as it thinks fit. Section 46PQ(1) provides that a party in proceedings under Div 2 of Pt IIB may appear in person or be represented. Section 46PR provides that, subject to Ch III of the Constitution, the Federal Court is not bound by technicalities or legal forms in a proceeding brought under Div 2.

18 Section 46PO does not provide for a general statutory cause of action available to anyone who may have been at any time affected by the unlawful discrimination. The statutory cause of action is only available to those who made the complaint or on whose behalf the complaint was made. It only lies in respect of the subject matter of the complaint to the Commission. Importantly, for the purpose of this appeal, it only lies against the respondents to the terminated complaint. Also importantly, the application commencing the proceeding upon the cause of action must be brought within 28 days after the date of issue of the s 46PH(2) notice, or such later time as the Court allows.

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.

21 On 25 August 2004, Mr Jones, in his capacity as President of the Executive Council of Australian Jewry, wrote to the Commission by way of lodging a formal complaint under the Discrimination Act in respect of material published on a website described as ‘http://www.biblebelievers.org.au’ (the Website). The letter directed the Commission’s attention to the following material on the Website, which it said ‘breaches the provisions of Part IIA of the Racial Discrimination Act’:

23 In his letter of 25 August 2004, Mr Jones submitted that that material contravened the provisions of Part IIA of the Discrimination Act because it conveyed the imputations referred to in the orders made by the primary judge. Mr Jones also submitted that the material complained of conveyed further imputations as follows:

Mr Jones submitted further that none of the material complained of fell within the exemptions contained in s 18D of the Discrimination Act. Mr Jones said that he was seeking to have the material complained of removed from the Website and to have an apology to Australia’s Jewish community given publicly by the Website’s owner/s.

24 Two observations need to be made about the complaint. First, the complainant is the Executive Council of Australian Jewry, which is an unincorporated association. Secondly, the complaint of 25 August 2004 does not nominate any person or entity as a respondent.

25 Whilst Mr Jones signed the letter of complaint, he did not in the letter describe himself as the complainant. That body describes itself as ‘The Representative Organisation of Australian Jewry’ and has as its constituents and affiliates a number of Jewish organisations. It is curious that that body purported to be the complainant having regard to the decision, to which Mr Jones referred, in Jones v Toben [2002] FCA 1150 and the decision in Executive Council of Australian Jewry v Scully (1998) 79 FCR 537. In the first decision, Branson J adverted to the difficulty of a proceeding that was brought in a court by an applicant described as ‘Jeremy Jones for himself and for the members for the time being of the Committee of Management of the Executive Council of Australian Jewry’. In the second decision, Wilcox J held that the Executive Council of Australian Jewry was not a person and could not itself be a person aggrieved.

26 Mr Jones’ letter did not purport to be a representative complaint, pursuant to s 46PB of the Commission Act; if it did, it did not comply with that section. However, no question has been raised concerning the competence of the complaint. The Commission appears to have treated the complaint as having been made at least by Mr Jones in his own right.

27 The President of the Commission thereafter engaged in correspondence with Mr Grigor-Scott. The circumstances in which the President came to correspond with Mr Grigor-Scott are not clear. However, the President wrote to Mr Jones on 3 December 2004, enclosing copies of communications received from Mr Grigor-Scott ‘on behalf of the respondent’. The letter of 3 December 2004 is not before the Full Court. Further, the identity of the communications referred to Mr Jones was not made clear to the Full Court. Mr Jones responded by letter of 17 December 2004. The letter contained detailed responses to the communications from Mr Grigor-Scott and also contained detailed submissions on the law.

28 On 9 February 2005 the President of the Commission issued a notice of termination pursuant to s 46PH(2) of the Commission Act in the following form:

29 The notice identified the complainant as ‘Mr Jeremy Jones, and On behalf of the Executive Council of Australian Jewry’. The notice identified the respondent as ‘The Bible Believers’ Church’. Mr Grigor-Scott was not named or mentioned as a respondent.

30 The President’s reasons for his decision were outlined in a letter of 9 February 2005, which was attached to the notice as Attachment A. The letter of 9 February 2005 was addressed to Mr Jones, care of Executive Council of Australian Jewry, and commenced as follows:

31 In stating the President’s reasons for his decision, the letter of 9 February 2005 relevantly said:

32 The President’s letter informed Mr Jones that he was satisfied there was no reasonable prospect of the complaint being settled by conciliation and he had therefore decided to terminate the complaint on that basis pursuant to s 46PH(1)(i) of the Commission Act. The letter informed Mr Jones that, if Mr Jones wished to make an application to the Federal Court of Australia or the Federal Magistrates Court, he would be required to attach the letter, the notice of termination and a copy of the original complaint.

33 Those letters referred to in the President’s letter of 9 February 2005 that before the Full Court were signed by Mr Grigor-Scott and are written on letterhead of "Bible Believers’ Church". The Full Court has not been provided with copies of any communications from the President or the Commission to Bible Believers’ Church or to Mr Grigor-Scott.

34 On 18 May 2005 an originating application was filed in this Court. The applicant was ‘Jeremy Jones, and on behalf of the Executive Council of Australian Jewry’. The respondent was ‘The Bible Believers’ Church’. By the application, the applicant claimed relief under s 46PO of the Commission Act. No issue has been taken as to the right of Mr Jones to bring the proceeding by himself and ‘on behalf of the Executive Council of Australian Jewry’. The Court therefore has not had to consider whether Mr Jones has standing under s 46PO(2).

35 Pursuant to the provisions of O 81 r 5(2)(a) of the Federal Court Rules, the application was accompanied by a form 167, which identified the party against whom the claim was brought as ‘Bible Believers’ Church of Currabubula, New South Wales 2342’. The proceeding was not commenced in the time prescribed by s 46PO(2) of the Commission Act and it was indicated on the Form 167 that the applicant was seeking an extension of time.

36 The originating application sought a declaration that the respondent had engaged in conduct rendered unlawful by Part IIA, s 18C of the Discrimination Act. The application also sought an order that the respondent remove the material from the Website, an order that the respondent be restrained from publishing or republishing the material on its website and an order that the respondent deliver a written apology.

37 The original application was accompanied by two affidavits. In an affidavit sworn on 17 May 2005, Jeremy Jones deposed as follows:

A copy of the complaint to the Commission of 25 August 2004 was an exhibit. The respondent to the proceeding at that stage, of course, was ‘The Bible Believers’ Church’. In the second affidavit, sworn on 17 May 2005, the executive officer of the Executive Council of Australian Jewry deposed that he had been unwell and unable to work between 9 March 2005 and 11 April 2005 and, as a result, had not instructed solicitors in time to commence the proceeding within the time specified by the Commission Act.

38 An affidavit of service was filed on 22 June 2005, in which the deponent deposed that he had served the application, the Form 167 and the two affidavits on the respondent on 16 June 2005, by leaving the documents with Mr Grigor-Scott.

39 The proceeding was listed for directions before the primary judge on 22 June 2005. There was no appearance for the respondent. His Honour granted leave to Mr Jones to file a notice of motion in court seeking an extension of time within which to commence the proceeding. The primary judge made an order extending the time to file the application up to 18 May 2005, being the date in which the application had in fact been filed. Curiously, that order is recorded as having been made by consent. Clearly, it was not, because there had been no appearance on behalf of Bible Believers’ Church or anyone else.

40 On 22 June 2005, an order was also made that service of any documents on the respondent be effected by sending such documents by prepaid ordinary mail to Mr Grigor-Scott at the Bible Believers’ Church, "Cravallee", Breeza Road, Currabubula, New South Wales. Thus, a distinction was clearly drawn between Bible Believers’ Church, on the one hand, and Mr Grigor-Scott, on the other.

41 The proceeding was stood over to 21 July 2005. On that day, the applicant filed in court a notice of motion returnable instanter seeking an order pursuant to O 6 r 2 of the Federal Court Rules for leave to join Mr Grigor-Scott as a respondent in the proceeding. Although the application was purportedly brought under O 6 r 2, that rule does not regulate the joinder of parties after a proceeding has commenced. Order 6 r 8 permits the Court to add parties who ought to have been joined as parties or whose joinder is necessary to ensure that all matters in dispute may be effectually and completely determined and adjudicated upon. An affidavit sworn on 21 July 2005 by the solicitor for Mr Jones was also filed in Court on that day. Annexed to the affidavit was a search of the Australian Securities and Investment Commission (ASIC) and the Australian Business Register (ABR), which showed that Bible Believers’ Church was not registered with either ASIC or ABR. The solicitor also said that he had undertaken a search in respect of the domain name, ‘biblebelievers.org.au’, which showed that the registrant was Bible Believers’ Church and the registrant contact name was Anthony Grigor-Scott.

42 The primary judge made an order on 21 July 2005 granting leave to Mr Jones to join Mr Grigor-Scott as a respondent to the proceeding. Presumably, the order was made under O 6 r 8.

43 At the hearing on 21 July 2005, the proceeding was stood over to 29 August 2005 for final hearing. On 29 August 2005, the primary judge’s associate wrote to Mr Grigor-Scott relevantly saying:

The hearing on 29 August 2005 was vacated and the matter was listed for hearing on 20 September 2005.

44 When the matter was called on for hearing on 20 September 2005, Mr Grigor-Scott was in Court. When the primary judge asked Mr Grigor-Scott for whom he appeared, Mr Grigor-Scott responded that he was appearing for himself. He was then asked whether he also appeared for the ‘Bible Believers’ Church’. Mr Grigor-Scott replied that ‘the Church’ was not ‘a justiciable body’. He suggested that the case against the Church should be terminated. When pressed, he said that he did not seek to appear for Bible Believers’ Church, that ‘the Church’ was not a ‘justiciable body’ and that nobody can appear for it.

45 Counsel for Mr Jones then tendered the material that had been the subject of the complaint before the Commission and tendered evidence to demonstrate that Mr Grigor-Scott appeared to have responsibility for the content of the Website. The primary judge then asked Mr Grigor-Scott whether there was any dispute as to the authenticity of the material and Mr Grigor-Scott said that there was not .

46 The primary judge then asked Mr Grigor-Scott if he wished to tender any evidence. His Honour told Mr Grigor-Scott that, if he wished to put material before the Court, he would have to do so by affidavit and that the material must bear directly on the issue that arises in the proceeding. His Honour said that the critical question was whether Mr Grigor-Scott published the material and whether the material ‘failed the statutory test’. His Honour said that if Mr Grigor-Scott wished to tender any material, his Honour would consider whether it was admissible and whether it ‘bears on the test’.

47 Mr Grigor-Scott then said that the case was going to be immense and that Mr Jones had linked him with ‘the Church’ for over ten years in the national electronic and print media. The primary judge said that he did not propose to read ten years of communications and asked Mr Grigor-Scott whether there was any document that he wished to tender in evidence. Mr Grigor-Scott said that he wished to tender Mr Jones’ complaint to the Commission and Mr Jones’ letter of 17 December 2004 to the Commission.

48 The primary judge then told Mr Grigor-Scott that, if he wished to tender any other document, he would have to show why the document was relevant and asked him whether there was any other document he wished to tender. Mr Grigor-Scott’s response was that he could not do so at that time because ‘the website is over 600 megabytes, thousands of files, and there is not one file against any particular group from Adam’s race, not one’. After a further brief exchange, Mr Grigor-Scott said that it was a much bigger case than it seemed on the surface. The primary judge said that he was not sure of that and told Mr Grigor-Scott that he did not appear to have answered what was a reasonably closely framed issue, which should not involve any great length of hearing and should be capable of being resolved reasonably expeditiously.

49 The primary judge said that, if Mr Grigor-Scott wished to tender any evidence, then he may have to go into the witness box to prove the material. Mr Grigor-Scott’s response was that he could not tender any material because the Website was so big. His Honour then asked Mr Grigor-Scott again whether there was any other material that he wished to tender. Mr Grigor-Scott’s response was that he would have to spend time going through thousands of files to sort them out. The primary judge offered to adjourn for a short time to enable Mr Grigor-Scott to consider whether he wished to tender any documents that demonstrated that the material complained of by Mr Jones did not offend the Discrimination Act or to tender anything to explain the meaning of the documents complained about. Mr Grigor-Scott said that a short adjournment was of no utility because there was nothing he could do in that time. The primary judge then asked counsel for Mr Jones whether he had any evidence in reply. Nothing further was tendered in reply. His Honour then asked Mr Grigor-Scott whether he wished to cross-examine Mr Jones and Mr Grigor-Scott said that he did not.

50 The primary judge then heard submissions from counsel for Mr Jones. Counsel referred to several cases and, after a further exchange with his Honour, offered to provide Mr Grigor-Scott with copies of the cases. In the course of fixing a timetable for the filing of further written submissions, Mr Grigor-Scott indicated that he wished to go about establishing the truth of the material complained of. His Honour said that it would be of no assistance for him to read huge bundles of paper and that it was Mr Grigor-Scott’s conduct that had to be evaluated. His Honour said that the question was whether Mr Grigor-Scott had breached the Discrimination Act.

51 Although leave was given to join Mr Grigor-Scott on 21 July 2005, no amended application had been filed at that stage. Unless an order is otherwise made, O 6 r 11 regulates the conduct of a proceeding after the joinder of a party. Where a party is added rather than substituted for another party, O 6 r 11(3) applies. Order 6 r 11(3) provides:

Order 6 r 11(2) is not relevant. It applies where a party has been substituted for another party which is not the case here. The date of commencement of the proceeding against Anthony Grigor-Scott therefore may be taken to be 27 September 2005 (see Ketteman v Hansel Properties Ltd [1987] 1 AC 189; Cockerill v Westpac Banking Corporation (1991) 32 FCR 36).

52 A question then arose concerning the extension of time for Mr Jones to commence the proceeding. Mr Grigor-Scott advanced the proposition that an extension could only be granted if applied for within the period of 28 days contemplated by s 46PO(2). The primary judge indicated that Mr Grigot-Scott should raise that question in his written submissions. After further exchanges concerning a timetable, the primary judge directed that written submissions be filed by Mr Jones no later than 24 October 2005, that Mr Grigor-Scott respond no later than 20 November 2005 and that the proceeding be adjourned for further hearing on 1 December 2005. His Honour also directed that Mr Jones file an amended application.

53 On 27 September 2005 an amended application was filed, in which relief was sought against both The Bible Believers’ Church, as the first respondent, and Mr Anthony Grigor-Scott, as the second respondent. On 29 September 2005 Mr Grigor-Scott was served with the amended application. He did not file an appearance.

54 In circumstances that are not entirely clear, the hearing date of 1 December 2005 was vacated and the hearing did not resume until 5 June 2006. In the meantime, it appears that Mr Grigor-Scott prepared and forwarded to the primary judge affidavits with voluminous annexures or exhibits. During the hearing on 5 June 2006, counsel for Mr Jones indicated that he would be content for the affidavit material provided by Mr Grigor-Scott to be treated as submissions. The primary judge indicated that that was a fair approach and that he would consider the material on the basis that it constituted submissions. His Honour then told Mr Grigor-Scott that there was a world of difference between what is admissible evidence in Court and what would generally be considered submissions. His Honour said that submissions are based on evidence already before the Court and that none of the material that had been provided by Mr Grigor-Scott was admissible as evidence.

55 Subsequently, in the course of submissions, counsel for Mr Jones tendered several of the letters referred to by the President of the Commission in his reasons for terminating the complaint, being letters from Mr Grigor-Scott claiming to be "Minister of the Gospel of the Church". The primary judge admitted the letters without objection. After further submissions, his Honour reserved his decision.

56 However, Mr Grigor-Scott subsequently sought to reopen his case. At a hearing of some description that occurred on 14 September 2006, the primary judge indicated that he had been considering the submissions but that, since that time, Mr Grigor-Scott had sent to the Court a further affidavit. At a hearing on 18 October 2006, the primary judge rejected Mr Grigor-Scott’s additional material. His Honour again reserved his judgment, indicating that it would probably not be delivered until February 2007.

57 In his reasons for judgment of 2 February 2007, the primary judge found that Mr Jones had established his case. His Honour considered that, despite the voluminous submissions and contentions advanced by Mr Grigor-Scott, Mr Grigor-Scott did not come to issue with the case presented by Mr Jones. His Honour considered that Mr Grigor-Scott failed to confront and answer the findings and reasoning of the decision of the Court in Jones v Toben. His Honour considered that there was ample support in the evidence before him for making similar findings to those made in Jones v Toben. His Honour considered that it was unnecessary for him to determine the validity of Mr Grigor-Scott’s assertions concerning the truth of the assertions made in the material complained of.

58 The notice of appeal contains seven grounds that take issue with the conclusions of the primary judge. While it will be necessary to address all of the grounds, at least to some extent, it is desirable to deal first with two questions that may be decisive of the appeal. The first is whether Mr Grigor-Scott was a respondent to the complaint in the Commission, such that a proceeding lies under s 46PO of the Commission Act. The second is whether, if Mr Grigor-Scott was a respondent to the complaint, Mr Jones needs an extension of time within which to bring the proceeding, since, on one view, the proceeding as against Mr Grigor-Scott was not commenced until to 27 September 2005. The second question would not need to be answered if it were found that no application under s 46PO lies against Mr Grigor-Scott.

59 Those questions were not raised in the notice of appeal as first filed but they were raised with senior counsel for Mr Jones in the course of the hearing. At the conclusion of the hearing, the Full Court directed Mr Jones to file and serve written submissions, together with any evidence, in support of any order that he asks the Court to make nunc pro tunc extending the time for commencement of the proceeding against Mr Grigor-Scott, together with written submissions as to the basis on which the Full Court could make such an order. Mr Grigor-Scott was directed to respond by 28 November 2007 and the appeal was listed for further directions on 30 November 2007.

60 At the directions hearing on 30 November 2007, it was apparent that the parties needed directions concerning the crystallisation of the further questions and the making of submissions as to those questions. Accordingly, on 30 November 2007, the Court directed that, within 21 days, the parties make any further submissions they wished as to the following questions:

1. Whether it is a condition precedent of jurisdiction of the Court, that the respondent in a proceeding under s 46PO was the respondent to the relevant complaint to the Commission.

2. Whether Mr Anthony Grigor-Scott was a respondent to the complaint made by Mr Jeremy Jones to the Commission.

3. Whether the order of 22 June 2005 was made by consent and, if so, how consent was given on behalf of Bible Believers’ Church or Mr Anthony Grigor-Scott.

4. Why there was a delay between the making of the order joining Mr Anthony Grigor-Scott on 21 July 2005 and the filing of the amended application on 27 September 2005.

5. Whether the Full Court can extend the time for commencement of the proceeding and, if so, why it should do so.

6. Whether O 6 r 11(3) applies such that the date of the commencement of the proceeding against Mr Anthony Grigor-Scott is the date of filing the amended application.

7. If time is to be extended nunc pro tunc, to what date should time be extended, and what is the source of the Court’s power to do so?

8. Having regard to the order made on 22 June 2007, extending the time for the bringing of an application under s 46PO(1) to 18 May 2005, is the Court’s power to make an order extending time exhausted if the extension of time does not apply to a particular person.

The proceeding was stood over for further directions on 8 February 2008 for the purposes of determining whether any further oral hearing was required in the light of any further written submissions made by the parties in response to those questions.

61 Mr Grigor-Scott filed a brief submission responding to the questions in accordance with the direction. No response or further submission was filed on behalf of Mr Jones. When the matter was called on for directions on 8 February 2008, there being no response from Mr Jones, the Court informed the parties that it did not require any further oral hearing.

62 However, the solicitor for Mr Jones then sought leave to provide to the Court further written submissions in response to the questions of 30 November 2007. No explanation was proferred as to why Mr Jones should be afforded such an indulgence at that stage. Further, Mr Grigor-Scott did not consent to the Court receiving the further written submissions. Nevertheless, the Court has had regard to the written submissions in reaching its conclusions on the two questions.

63 Mr Grigor-Scott’s written submissions in support of the appeal included the following paragraphs:

64 While there was no ground of appeal to which those submissions related, the original written submissions filed on behalf of Mr Jones responded to Mr Grigor-Scott’s submissions in the following terms:

65 Thus, while the question of joinder of Mr Grigor-Scott was not raised as a ground of appeal, Mr Jones responded as though it had been. In the course of the hearing of the appeal, senior counsel for Mr Jones indicated that Mr Jones would not be prejudiced by an amendment to the notice of appeal to raise a ground concerning that joinder. Accordingly, on 20 November 2007 the Full Court granted leave to Mr Grigor-Scott to appeal from the order made on 21 July 2005 that he be joined as a respondent in the proceeding and to raise in the present appeal an additional ground that the primary judge erred in making that order.

66 As indicated above, two issues may arise. The first is whether Mr Grigor-Scott was a respondent to the complaint in the Commission, such that a proceeding lies under s 46PO of the Commission Act. The second is whether, if he was a respondent to the complaint, Mr Jones needs an extension to 27 September 2005 of the time within which to bring the proceeding, which was not commenced until that date.

67 Mr Jones accepts that jurisdictional conditions precedent to the jurisdiction of the Court are contained in s 46PO(1)(a) and s 46PO(1)(b) of the Commission Act. The use of the conditional tense in the introductory words of s 46PO(1) indicates that those conditions precedent must be satisfied before an applicant is empowered to make the application then described in the section. However, while s 46PO uses mandatory terminology in places, it does not use mandatory terminology in respect of the identity of respondents. Mr Jones contends, therefore, that s 46PO contemplates that one or more of the respondents may be identified. He says that the latitude given to an applicant to identify any one or more of the respondents is to be contrasted with the express limitations on the scope of the application to the Court expressed in s 46PO(3).

68 Mr Jones contends that the focus on the subject matter of the complaint, rather than the identification of parties, is consistent with the requirements of a complaint to the Court that are specified in s 46PO(3). Thus, he says, while there is a need for some effective identification of the respondent to the complaint for the purposes of the specific enumerated orders in s 46PO(4), it is not a jurisdictional precondition to the making of an application to the Court under s 46PO of the Act.

69 Section 46PO(1) requires two events to occur before an affected person may bring a proceeding in the Federal Court of Australia or the Federal Magistrates Court alleging unlawful discrimination by one or more of the respondents to the terminated complaint. First, a complaint must have been terminated. Secondly, the President must have given notice under s 46PH(2). If both those events occur, then an affected person, as defined in the Commission Act, may bring a proceeding in the Federal Court of Australia or the Federal Magistrates Court alleging unlawful discrimination against the respondents to the terminated complaint. The section does not authorise an affected person to bring a proceeding against anyone other than a respondent to the terminated complaint. Section 46PO(3) makes it clear that the unlawful discrimination that is alleged in the proceeding must be the same as the unlawful discrimination that was the subject of the terminated complaint or must arise out of the same acts, omissions or practices that were the subject of the terminated complaint. Thus, it is a condition of s 46PO that the application that is authorised by s 46PO be brought against the respondent to the complaint.

70 The primary judge made findings that Mr Grigor-Scott was responsible for publishing on the Website the material about which Mr Jones complained to the Commission. Those findings of the primary judge, to which Mr Jones referred in his written submissions cited above, were not challenged by Mr Grigor-Scott on the hearing of the appeal. Nevertheless, the President did not refer to Mr Grigor-Scott as the respondent.

71 Section 46PO(1) authorises an application to the Federal Court alleging unlawful discrimination by one or more of the respondents to the terminated complaint. The question is whether Mr Grigor-Scott can fairly be described as a respondent to the complaint that was terminated by the President by the notice of 9 February 2005. On a fair reading of the notice and the letter outlining the President’s reasons, it cannot be said that Mr Grigor-Scott was ever a respondent to the complaint. It may be that the complaint was never properly constituted. Be that as it may, the President quite clearly did not treat Mr Grigor-Scott as the respondent to the complaint. Rather, the President referred at all times to Bible Believers’ Church as the respondent.

72 In his original written submissions on the question of joinder, Mr Jones placed reliance on the decision of the Court in Jones v Toben. That proceeding arose out of provisions of the Discrimination Act that have now been repealed. Section 25ZC relevantly provided that a complainant may commence proceedings in the Federal Court for an order to enforce a determination made under the Discrimination Act. Section 25ZC provided that, if the Court was satisfied that the respondent had engaged in conduct or committed an act that was unlawful under the Discrimination Act, the Court might make such orders as it thinks fit.

73 In Jones v Toben Mr Jones sought to enforce determinations by a commissioner in the following terms:

74 The significant difference between the determination that was the subject of the proceeding in the Federal Court in that case, on the one hand, and the manner in which the President dealt with Mr Jones’ complaint in the present case, on the other hand, is that the President did not at any stage identify Mr Grigor-Scott as the respondent to the complaint lodged by Mr Jones. On the contrary, the President at all times, while acknowledging correspondence from Mr Grigor-Scott, referred to the ‘Bible Believers’ Church’ or the ‘Church’ as the respondent to the complaint. As indicated above, there is no legal entity known as Bible Believers’ Church.

75 In his written submission of 8 February 2008, Mr Jones contends that Mr Grigor-Scott was in fact a respondent to the complaint made to the Commission. He says that the true respondent is to be identified by reference to the subject matter of the complaint. Thus, he says, the complaint was clearly against the person who was responsible for the publication of the material on the Website. Mr Grigor-Scott was identified as being that person and, since there was no legal entity known as Bible Believers’ Church, only Mr Grigor-Scott could be considered as the person about whom the complaint was made. Mr Jones contends that the question does not depend on nomenclature used by the Commission at any stage. He says that the Court’s function should be to ascertain whether Mr Grigor-Scott’s action, in publishing the material, was in fact the subject matter of the complaint to the Commission: if it was, then he was the respondent to the complaint.

76 Mr Jones also pointed to the participation of Mr Grigor-Scott in the conciliation process before the Commission as a further indication that he must be considered to have been the respondent to the complaint. Mr Grigor-Scott attended the conciliation required by the President under s 46PJ of the Commission Act. Mr Grigor-Scott was entitled to be present at such a conciliation only as a respondent to the complaint.

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. That would be enough to dispose of this appeal. However, it is desirable to address the second question also.

79 If Mr Grigor-Scott were a respondent to the complaint made to the Commission, the proceeding under s 46PO(1) needed to be brought against him within 28 days of the date of issue of the notice under s 46PH(2). It was not. The proceeding that was brought against him was brought on 27 September 2005, more than seven months after the President terminated the complaint. Section 46PO(2) does allow for the Court to extend the time within which the application must be made, however, insofar as the application has been brought against Mr Grigor-Scott, no application has ever been made for an extension of time and no order has been made.

80 However, that may not be fatal to the proceeding. Section 46PO of the Commission Act is similar to s 82 of the Trade Practices Act 1974 (Cth). It creates both a right and a remedy. Thus, it is procedural in character, being a condition of the remedy rather than an element of the right. If a proceeding invokes the jurisdiction of the Court under s 86 of the Trade Practices Act, the conduct of the proceeding, including its pleading, is a matter of procedure placed under the control of the procedural rules of the Court. Thus, the Court can allow an amendment to a pleading to raise further contraventions of the Trade Practices Act after the time limited for bringing a proceeding under s 82(2) of the Trade Practices Act had expired (see State of Western Australia v Wardley Australia (1991) 30 FCR 245 at 267-268).

81 However, it is one thing to amend an application to raise further contraventions arising out of the same or similar facts. It is another thing, as in this case, assuming contrary to the above conclusion that Mr Grigor-Scott was a respondent to the complaint to the Commission, to amend to join Mr Grigor-Scott, where the time for bringing a proceeding had already expired and no application was made to extend time to bring the application against him.

82 It is clear, as the affidavit of Mr Jones’ solicitor of 21 July 2005, sworn in support of the application to join Mr Grigor-Scott, shows, that Bible Believers’ Church, which was named as the respondent in the complaint to the Commission and in the proceeding before the Court, was never capable of being sued. It is not a legal entity and has no legal personality. It may be no more than the name of a website. The proceeding that was commenced on 18 May 2005 named a respondent that does not exist as a legal person and could not be sued. When the order was made on 21 June 2005 extending the time within which to bring the proceeding against Bible Believers’ Church, the order again was made in a proceeding in which there was no respondent then capable of being sued. When the order was made on 21 July 2005 giving leave to join Mr Grigor-Scott, the order was made in a proceeding in which there was currently no respondent then capable of being sued. When that order was made, there should have been a further order dismissing the claim against the Bible Believers’ Church.

83 The proceeding which was commenced against Mr Grigor-Scott on 27 September 2005 was not brought within the time prescribed by s 46PO(2). No application was ever made to the primary judge to extend time for the bringing of the application against Mr Grigor-Scott. No order should have been made to join him in circumstances where the application had not been brought within the time prescribed in s 46PO(2). It was always open to the applicant to have sought to have time extended but no such application was ever made.

84 Because the section is in the terms that it is, it was necessary for Mr Grigor-Scott to assert that the proceeding was barred by reason of s 46PO(2). This he has done.

85 Mr Jones points out that s 46PO(2) imposes no time limit on the Court’s power to extend time. He contends that the order made by the primary judge joining Mr Grigor-Scott constituted an implicit exercise of the power conferred by s 46PO(2).

86 Mr Jones contends that O 6r 11(3) would apply, such that the order joining Mr Grigor-Scott and allowing the amendment of the application had the effect of making him a party from the date of the commencement of the proceeding. Accordingly, he says, no further order under s 46PO(2) is necessary.

87 If such an order is necessary, Mr Jones contends that it could be made now by the Full Court, nunc pro tunc, extending time for joinder of Mr Grigor-Scott to the date of the amended application. He says that there would be no prejudice to Mr Grigor-Scott, given that he participated in the proceeding before the primary judge at all stages on his own account. He says that the power extending time simply flows from the terms of s 46PO(2), which, he says, confer sufficiently broad discretion on the Court to make an order extending time as it sees fit to do justice in achieving the purposes of the Commission Act.

88 Mr Jones contends that, in any event, there is nothing to suggest that the power conferred by s 46PO(2) may be exercised on only one occasion. The power applies to the application to the Court: if the amended application was not a new application, O 6 r 11(3) would operate to make the amended proceeding good and no further order under s 46PO(2) would be needed: if, on the other hand, the amended application constituted a fresh application under s 46PO(1), there is no reason why the power conferred by s 46PO(2) could not be exercised in relation to that application. Mr Jones emphasises that s 46PR of the Commission Act manifests a statutory intention that the Court not be bound by technicalities or legal forms in discharging its functions under the Commission Act.

89 The proceeding has never been competent either against Bible Believers’ Church or Mr Grigor-Scott. In those circumstances, the ground of appeal for which leave was given at the hearing of the appeal against the order made by the primary judge joining Mr Grigor-Scott should be allowed. The proceeding must be dismissed as incompetent because Bible Believers’ Church is not and never has been capable of being sued. There was no basis for the joinder of Mr Grigor-Scott as a respondent in the proceeding in the Federal Court. The order ought not to have been made and, accordingly, should be set aside.

91 In the light of the conclusion reached above, that the proceeding in the Federal Court was incompetent in so far as it joined a non-existent entity and in so far as it purported to join an individual who had not been a respondent to a complaint before the Commission, it is unnecessary to deal with the grounds stated in the notice of appeal. Nevertheless, since they were the subject of argument, it is desirable to say something about them briefly.

92 Mr Grigor-Scott failed to come to grips with the questions raised in the proceeding and, therefore, with the questions that he sought to raise on the appeal. While Mr Grigor-Scott, somewhat belatedly, produced substantial material, which the primary judge permitted him to treat as submissions, there was in fact no admissible evidence adduced by Mr Grigor-Scott. The essence of the stance adopted by Mr Grigor-Scott appears to be that he sought to establish that any conduct complained of by Mr Jones fell within s 18D of the Discrimination Act. However, the difficulty with that stance is that it fails to grapple with the deficiency in the case mounted by Mr Grigor-Scott. Section 18C of the Discrimination Act renders certain acts unlawful. Section 18D provides, however, that s 18C does not render unlawful certain acts done reasonably and in good faith either in the course of certain conduct or in making or publishing certain reports or certain comments.

93 The case mounted by Mr Jones, after Mr Grigor-Scott had been joined as a respondent, was that Mr Grigor-Scott performed the acts of publishing the material complained of on the Website. Putting aside, for the moment, the question of whether the proceeding was properly commenced against Mr Grigor-Scott, Mr Grigor-Scott made no attempt to adduce evidence that the act of publishing the material complained of was for any genuine academic, artistic, or scientific purpose or any genuine purpose in the public interest. Nor did he adduce evidence that the material was a fair and accurate report of any event or matter of public interest or fair comment on any event or matter of public interest.

94 In those circumstances, Mr Grigor-Scott could not hope to establish that insufficient weight was given to any evidence adduced by him, because no admissible evidence was adduced. A fortiori, there can be no substance in the complaint that the primary judge failed to give sufficient weight or attention to the operation of s 18D or to the submissions and documents relied upon by Mr Grigor-Scott. Accordingly, Mr Grigor-Scott failed to establish the first three grounds summarised above.

95 Mr Grigor-Scott’s lack of legal training and expertise and lack of representation is not sustainable ground of appeal. Further, it was common ground that Mr Grigor-Scott was responsible for the publication of material on the Website. Accordingly, there is no substance in the fourth and fifth matters summarised above.

96 It follows that, if the appeal were limited to the grounds originally stated in the notice of appeal, the appeal would be dismissed.

97 The appeal should be allowed. The orders made by the primary judge should be set aside. In particular the order of 21 July 2005, that Anthony Grigor-Scott be joined as a respondent to the proceeding should be set aside. It then follows that the orders made on 2 February 2007 should be set aside. In lieu of those orders, there should be an order that the proceeding be dismissed as incompetent. Since there is considerable doubt as to the position taken by Mr Grigor-Scott, who did not at any stage file an appearance, there should be no order as to the costs of the proceeding. For the same reason, there should be no order as to the costs of the appeal.

I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Emmett, Lander and Tracey.

The Appellant appeared in person.

Counsel for the Respondent:	RM Goot SC with SEJ Prince

Solicitor for the Respondent:	Slater & Gordon Lawyers

Date of Full Court Hearing:	20 November 2007

Dates of further Directions:	30 November 2007 and 8 February 2008

Date of Final Submissions Received:	8 February 2008

Date of Judgment:	28 February 2008

Federal Court of Australia - Full Court

Grigor-Scott v Jones [2008] FCAFC 14 (28 February 2008)