Harley v Commonwealth of Australia [2010] FMCA 1029 (13 December 2010)

Last Updated: 29 March 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HARLEY v COMMONWEALTH OF AUSTRALIA

[2010] FMCA 1029

HUMAN RIGHTS – Application for separate decision on one occasion of alleged direct discrimination in complaint containing that occasion and two occasions of alleged indirect discrimination.

Australian Human Rights Commission Act 1986, ss.46P, 46PO & 46PH

Applicant:

GUY HARLEY

Respondent:

COMMONWEALTH OF AUSTRALIA

File Number:

ADG 259 of 2010

Judgment of:

Lindsay FM

Hearing date:

7 December 2010

Date of Last Submission:

7 December 2010

Delivered at:

Adelaide

Delivered on:

13 December 2010

REPRESENTATION

The Applicant:

In Person

Solicitors for the Applicant:

Dixon Gallasch Pty Ltd

Counsel for the Respondent:

Ms Firkin

Solicitors for the Respondent:

Blake Dawson

ORDERS

(1) The application of the applicant for a separate decision on the question of his complaint as it relates to direct discrimination, is refused.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE

ADG 259 of 2010

GUY HARLEY

Applicant

And

COMMONWEALTH OF AUSTRALIA

Respondent

REASONS FOR JUDGMENT

1. I have determined not to separate the hearing of the various aspects of the complaint and I choose to express myself in that way very carefully. A consideration of the matter, it seems to me, requires close attention to the mechanism provided by the Australian Human Rights Commission Act for the bringing of a complaint before the court. “Complaint” is the expression that is used in section 46P, and section 46PO, of course, refers to a complaint being terminated by the President and him giving a notice, and that then facilitating the opportunity for a person affected in relation to the complaint, making an application, to use the language of subsection (1) of section 46PO, alleging unlawful discrimination by one or more of the respondents to the terminated complaint. And then, 46P itself refers to a written complaint being lodged with the Commission alleging discrimination.
2. In 46PH, in describing the grounds on which the complaint may be terminated again uses that compendious expression of “complaint,” not recognising for these purposes, that within the complaint, there may be one or more “causes of action” to transplant an expression from other areas. And, of course, this complaint was terminated under subsection (1)(I), that the President being of the opinion there was no reasonable prospect of the matter being settled by conciliation. So I think I start from the position that it is the one complaint that gets before the Court via that route.
3. So I think, in a quite accurate sense, the application that was made by Mr Harley in relation to the court disentangling the one count of direct discrimination – this is my expression – from the other two counts – perhaps a better expression would be “occasions” - separating the one occasion of direct discrimination from the two occasions of indirect discrimination can be seen in a very real sense as an application for a separate decision on the question. That was not the view I had in my exchanges with counsel when the matter was argued before me but the mechanism for a separate decision on questions found in Rule 17 of the Rules of Court does not just assist us by analogy to this situation. I think in truth, what is happening when we seek to disentangle one aspect of the complaint from other aspects of the complaint is that we are deciding to provide for a separate decision on a question.
4. Having looked at a number of decisions of the Federal Court and of this Court which consider the expedience of that process, I came to the conclusion for reasons which I will set out in some detail in due course, that it would not be expedient to separate the hearing of the different occasions in the way in which I was asked to. I saw some utility in it (and that could not fail to be the case given the undertaking Mr Harley gave in the event that he was successful on the matter as it related to the occasion of direct discrimination to jettison agitating the matter as far as it related to the occasions of indirect discrimination). But having had a look at the issues involved, and in particular, having regard to the question of the calculation of any damage that has been sustained by him, I came to the view that there would be too great a level of mixture between the acts relating to each of the separating strands of the complaint for their to be utility in that process.
5. I regret giving my reasons in such truncated form but the order of the court will be that the application of the applicant for a separate decision on the question of his complaint as it relates to direct discrimination is refused. And as I say, I will have those detailed reasons to you as soon as possible.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Lindsay FM

Date: 25 March 2011