Case Note: Grigor-Scott v Jones  FCAFC 14 (Federal Court of Australia Full Court, 28 February 2008)
Mr Jones was the President of the Executive Council of Australian Jewry. There was no legal entity known as the "Executive Council of Australian Jewry", being merely a body of persons or an unincorporated association. The Bible Believers' Church was in a similar position with no legal form. A Bible Believers' Newsletter published on a website made some claims about the holocaust and Jewish people which were alleged to be unlawful under the Racial Discrimination Act 1975 (Cth) (the RD Act).
A complaint about the Bible Believers' Newsletter was made to the Human Rights and Equal Opportunity Commission (HREOC) under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (HREOC Act). The letter of complaint was signed by Mr Jones, but the complainant was identified as the Executive Council of Australian Jewry. The complaint referred to the website of The Bible Believers' Church but did not nominate any entity as respondent.
HREOC attempted to conciliate the matter, during which it dealt with Mr Grigor-Scott of the Bible Believers' Church. Conciliation was unsuccessful resulting in dismissal of the complaint by the President. Under the HREOC Act, that meant the matter could be taken to the Federal Court, against "one or more of the original respondents". In his Notice of Termination letter to Mr Jones, the President had named the matter as Between Mr Jeremy Jones, and On behalf of the Executive Council of Australian Jewry, Complainant AND The Bible Believers' Church, Respondent. This then is how it was brought to the Federal Court.
The application was served by leaving it with Mr Grigor-Scott. Subsequently Mr Jones was given leave to join Mr Grigor-Scott as respondent. At the hearing Mr Grigor-Scott submitted that the Church was not a justiciable body and said he did not seek to appear for it. There was evidence that he had responsibility for the content of the website. Subsequently an amended application was filed naming both the Church and Mr Grigor-Scott as respondents.
The primary judge found that Mr Jones had established his case for unlawful conduct under the RD Act.
An appeal was lodged to the Full Court of the Federal Court, naming the Bible Believers' Church and Anthony Grigor-Scott as appellants and Mr Jones as respondent. The Full Court subsequently ordered that Bible Believers' Church be removed as an appellant, since there is no legal entity of that name.
On the appeal, the Full Court initially considered the question whether Mr Grigor-Scott was a respondent to the original complaint in the HREOC, since, if he was not, he could not have been a respondent to the application in the Court.
The Full Court found that Mr Grigor-Scott should not have been made a respondent to the proceedings in the Court – the original complaint to the HREOC was made in respect of the website; it was always treated as having been made against Bible Believers' Church and Mr Grigor-Scott was never a respondent to it. The result was that:
"The proceeding has never been competent either against Bible Believers' Church or Mr Grigor-Scott. .... 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." (para 89)
The status of Mr Jones was not discussed by the court, as the issue was not raised. (An individual may bring a complaint of discrimination to the Commission under the Human Rights and Equal Opportunity Commission Act 1986 (Cth). However, Mr Jones did not name himself as complainant, but lodged it on behalf of the Executive Council of Australian Jewry which, as indicated above, is not a legal person.)
Implications of the case
Unincorporated associations or bodies of persons are not recognised as being able to sue or be sued. Individuals who are members of such a group may be sued, but not usually as a representative of the group without some legislative intervention. In some cases the rules of court or a particular statute will allow a representative action.
The judgment can be found online at http://www.austlii.edu.au/au/cases/cth/FCAFC/2008/14.html