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Editors --- "McGlade v Lightfoot - Case Summary" [2002] AUIndigLawRpr 42; (2002) 7(3) Australian Indigenous Law Reporter 15

Court and Tribunal Decisions - Australia

McGlade v Lightfoot

Federal Court of Australia (Carr J)

13 June 2002

[2002] FCA 752; BC200203147

Practice and procedure — racial discrimination — motion for summary dismissal of application on ground that no reasonable cause of action was disclosed — statements made by respondent to journalist during an interview in a parliamentary office — statements published in newspaper articles — whether reasonably arguable that respondent made those statements ‘otherwise than in private’ — whether real question to be tried — strike-out motion dismissed

Facts:

The applicant is an Aboriginal person. The respondent is a member of the Federal Parliament. Prior to 9 May 1997, in the respondent’s parliamentary office, the respondent made certain statements to a journalist.

On 9 May 1997 the respondent’s remarks were published in an article. On 13 May 1997 a further article appeared in another newspaper in which the statements were further reported.

In the principal proceedings the applicant sought relief (including an apology and compensation) from the respondent on the basis that by making the statements the respondent had contravened s 18 of the Racial Discrimination Act 1975 (Cth) (the Act) and that certain exemptions contained in s 18D did not apply. By notice of motion the respondent applied to strike out the proceedings.

Held, dismissing the motion:

1. Per Carr J: Prima facie, every litigant has a right to have matters of law and of fact decided by a tribunal and the court can summarily dispose of an action in protection of abuse of process by frivolous and vexatious litigants. However it will only do so if the plaintiff’s claim is so obviously untenable that it cannot possibly succeed: [24]. Burton v Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76 at 92 per O’Connor J and Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 91-92 per Dixon J applied.

2. Exceptional caution is important in cases where the ultimate outcome may turn upon the resolution of some disputed issue or issues of fact. In these cases, it is essential that great care be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. In this case the factual issues are not clear: [25]. Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598 at 603 referred to.

3. Even if no such factual issues would need to be decided, a serious question of law, reflected by the arguments on both sides, will have to be decided. This is a relatively new area of Australian law and there is not sufficiently clear authority which dictates a negative answer to the legal question whether the respondent’s act in making the statements to a journalist can be said to have caused those words to be communicated to the public: [26].

4. The question asked in a summary judgment application is not whether the plaintiffs will probably succeed in their action; it is whether the material demonstrated that that action should not be permitted to go to trial in the ordinary way because it is apparent that it must fail. The applicant’s claim in this matter is not so obviously untenable that it cannot possibly succeed: [27]-[29]. Webster v Lampard (1993) 177 CLR p 602 considered. O’Sullivan v Truth & Sportsman Limited [1957] HCA 8; (1956) 96 CLR 220 distinguished.

5. The question posed by the interaction of the first two subsections of s 18C of the Act is not whether the respondent caused, in this case, words to be communicated to the public. The question is whether ‘an act’ caused such words to be communicated to the public. If an act causes that to happen then the doing of that act is taken by s 18C(2) of the Act not to be done in private. Section 18C(2) does not exhaustively define the circumstances in which an act is done otherwise than in private: [32], [33]. ?