FEDERAL COURT OF AUSTRALIA

Low v Commonwealth of Australia [2001] FCA 702

HUMAN RIGHTS – Appeal from Federal Magistrates Court – Alleged discrimination in employment and dismissal - Disability discrimination – Racial discrimination - Sex discrimination

PRACTICE AND PROCEDURE – Appeal from Federal Magistrates Court – Extension of time – Whether there is a reasonable explanation for the delay - Whether the application discloses an arguable case – Whether it is appropriate to grant pro bono legal assistance

Federal Court of Australia Act 1976 (Cth) ss 24(1)(d); 25(1)(a)

Human Rights and Equal Opportunity Commission Act 1986 (Cth) Pt II B; s 46

Disability Discrimination Act 1992 (Cth) s 15

Racial Discrimination Act 1975 (Cth) ss 9, 15, 18

Sex Discrimination Act 1984 (Cth) ss 6, 14, 28B

CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172 referred to

Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 referred to

Allesch v Maunz [2000] HCA 40; 173 ALR 648 referred to

Powell v Powell (unreported, Family Court of Australia, Coleman J, 6 April 2001) referred to

Haining v Deputy President Drake & Ors (unreported, Federal Court of Australia, Wilcox, Moore & Marshall JJ, 17 September 1998) referred to

Mazukov v University of Tasmania [2000] FCA 1091 referred to

Lokeni Hui v Commonwealth of Australia [2001] FCA 69 followed

LAN LOW v COMMONWEALTH OF AUSTRALIA

N 1211 OF 2000

MARSHALL J

MELBOURNE (HEARD IN SYDNEY)

13 JUNE 2001

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the respondent’s costs, including reserved costs.

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

REASONS FOR JUDGMENT

1                     This is an appeal pursuant to s24(1)(d) of the Federal Court of Australia Act 1976 (Cth) which provides the Court with jurisdiction to deal with certain appeals from judgments of the Federal Magistrates Court. On 8 June 2000, the appellant, Ms Low, made application to the Court pursuant to s46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the Act”). Her application alleged that the respondent, through the Australian Taxation Office (“ATO”), had engaged in unlawful discriminatory action against her. Ms Low sought an apology from the ATO, compensation and reinstatement in her employment with the ATO. She also applied for an extension of time within which to bring her application.

2                     On 28 August 2000, Whitlam J ordered that the proceeding be transferred to the Federal Magistrates Court. On 23 October 2000, Driver FM declined to extend the time within which the application may be brought and accordingly dismissed the application. His Honour held that the application did not disclose an arguable case. On 13 November 2000, Ms Low filed a notice of appeal from the judgment of the Federal Magistrates Court. The notice of appeal, in effect, took issue with the finding that the application was bound to fail.

Notice of the appeal

3                     An appeal from a judgment of the Federal Magistrates Court is not conducted de novo, nor is it an appeal in the strict sense. Like appeals from judgments of single judges of this Court, it is conducted as a re-hearing of the initial application in the sense that the parties are able to supplement the evidence before the Court at first instance by seeking to adduce additional material which may be admitted into evidence, having regard to the dictates of justice in the particular circumstances. The Court is also able to draw inferences of fact based on the evidence before the primary judge. See CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172 especially at [100] and [111] per McHugh, Gummow and Callinan JJ. See also Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 at [75] per Gleeson CJ and Gummow J; and Allesch v Maunz [2000] HCA 40; 173 ALR 648 at [20] to [22]. See additionally Powell v Powell (unreported, Family Court of Australia, Coleman J, 6 April 2001) where Coleman J said:

“The husband brings his appeal from the decision of the learned Magistrate pursuant to s.94AAA(1) of the Family Law Act. By direction of the Chief Justice of the Family Court pursuant to s.94AAA(3), this appeal has been heard by a single Judge. The powers of the Court on appeal are those conferred by s.94AAA(6) of the Family Law Act. Unlike appeals from Courts of Summary Jurisdiction pursuant to s.96(4) of the Family Law Act, which proceed by way of hearing de novo, the appeal to this Court from the decision of a Federal Magistrate is by way of rehearing. The principles applicable are those relevant to an appeal from a decision of a single Judge of the Family Court to the Full Court of the Family Court.”

4                     In this case the Chief Justice of this Court has directed pursuant to s25(1A) of the Federal Court of Australia Act (1976) (Cth) that this appeal be heard by a single judge.

The complaint to HREOC

5                     Part II B of the Act is headed “Redress for unlawful discrimination”. Under s46P of the Act a complainant may lodge a written complaint with the Human Rights and Equal Opportunity Commission (“HREOC”) alleging unlawful discrimination. Under s46PD the complaint is referred to the President of HREOC, who pursuant to s46PF must inquire into the complaint and attempt to conciliate it. The President of HREOC may terminate a complaint on any one of nine grounds set out in s46PH(1) of the Act. The President terminated the complaint pursuant to s46PH(1)(a) of the Act on 13 April 2000.

Need for an extension of time

6                     Section 46PO of the Act enables an affected person to apply to this Court or the Federal Magistrates Court with respect to an unlawful discrimination claim. Section 46PO(2) of the Act provides that:

“The application must be made within 28 days after the date of the issue of the notice under s46PH(2), or within such further time as the court concerned allows.”

7                     The time within which Ms Low was permitted to make such an application, without an extension of time, expired on 11 May 2000. In an affidavit filed with this Court on 7 August 2000, Ms Low stated that she was unaware until 11 May 2000 that her complaint had been terminated on 13 April 2000. She said that:

“On 11 May 2000, I called HREOC to check with the progress of my application and was told of the Notice of Termination dated 13 April 2000.”

8                     Ms Low went on to say that on 11 May 2000 she contacted this Court seeking the appropriate documentation to commence a proceeding in this Court. Ms Low said that she did not receive the appropriate form until she made a second request of the Court. She stated that she “collected the required document from HREOC on 7 June 2000” and filed her application the next day.

9                     In an affidavit filed with the Federal Magistrates Court and sworn on 16 October 2000, Ms Low said that the relevant application form (Form 167) arrived at her house on 2 June 2000. She then said that on 5 June 2000 she asked HREOC for a copy of the President’s termination decision. She collected a copy of the decision on 7 June 2000.

10                  In a letter dated 26 July 2000 a delegate of the President advised the solicitor for the ATO that a copy of the termination notice was sent by HREOC to Ms Low on 13 April 2000. In that letter the delegate stated:

“On 20 April 2000 Ms Low faxed a letter, of the same date, to the Commission providing further information. There was no formal acknowledgment that Ms Low had received the Notice of Termination. Ms Low closed her letter with the request that, ‘I would appreciate it if I will be intimidated (sic) with your decision within the next 14 days’.”

The author of the letter also acknowledged that Ms Low sent a facsimile transmission on 5 June 2000 to HREOC requesting a copy of the notice of termination.

The approach of the Court below

11                  The learned Federal Magistrate at 3 of his reasons for judgment said:

“In my view, the Court should grant an extension of time where there is a reasonable explanation for the delay in filing the application for relief, where the balance of convenience as between the parties favours the granting of an extension of time and where the application discloses an arguable case.”

Save for the reference to “balance of convenience” I agree with his Honour’s approach. I believe a more appropriate substitute for balance of convenience would be “in the interests of justice”. However, it should be acknowledged that the prima facie position is that applications should be lodged within time. Furthermore, as a precondition to granting an application for an extension of time there should be some acceptable explanation for the delay. See for example: Haining v Deputy President Drake & Ors [1998] FCA 1168 (unreported, Federal Court of Australia, Wilcox, Moore & Marshall JJ, 17 September 1998) per Wilcox and Marshall JJ, especially at [4] and [5].

12                  The learned Magistrate found (having regard to the lack of evidence concerning Ms Low’s actual receipt of the notice of termination allegedly sent to her on 13 April 2000) that Ms Low had a “reasonable explanation” for the delay. His Honour also held that the balance of convenience favoured an extension of time given that Ms Low would otherwise be unable to pursue her application and that the ATO was not prejudiced by the grant of an extension of time.

13                  The learned Magistrate then turned to the third consideration outline above, namely if the application discloses an arguable case. I also agree that it would be futile to extend time if an application was bound to fail, see for example Mazukov v University of Tasmania [2000] FCA 1091.

14                  The learned Magistrate declined to extend the time within which an application could be made under the Act as he considered that Ms Low did not have an arguable case for relief in the proceeding. His Honour commenced his consideration of the matter by referring to s46PO(3) of the Act which provides that:

“The unlawful discrimination alleged in an application:

(a)   must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or

(b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.”

15                  His Honour observed that Ms Low placed reliance upon alleged breaches of three Acts. The three Acts were:

·        the Disability Discrimination Act 1992 (Cth) (“the DDA)

·        the Racial Discrimination Act 1975 (Cth) (“the RDA”)

·        the Sex Discrimination Act 1984 (Cth) (“the SDA”)

The alleged breaches of these Acts arose from allegedly discriminatory conduct experienced by Ms Low during her employment at the ATO from late 1996 until 23 September 1998.

16                  In respect of the DDA, his Honour found that Ms Low’s reliance on s15 of that Act was misplaced. Section 15 of the DDA provides that:

“15.     (1)        It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against a person on the ground of the other person's disability or a disability of any of that other person's associates:

(a)       in the arrangements made for the purpose of determining who should be offered employment; or

(b)       in determining who should be offered employment; or

(c)        in the terms or conditions on which employment is offered.

(2)       It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee's disability or a disability of any of that employee's associates:

(a)       in the terms or conditions of employment that the employer affords the employee; or

(b)       by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or

(c)        by dismissing the employee; or

(d)       by subjecting the employee to any other detriment.

(3)       Neither paragraph (1)(a) nor (b) renders it unlawful for a person to discriminate against another person, on the ground of the other person's disability, in connection with employment to perform domestic duties on the premises on which the first-mentioned person resides.

(4)       Neither paragraph (1)(b) nor (2)(c) renders unlawful discrimination by an employer against a person on the ground of the person's disability, if taking into account the person's past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person's performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability:

(a)       would be unable to carry out the inherent requirements of the particular employment; or

(b)       would, in order to carry out those requirements, require services or facilities that are not required by persons without the disability and the provision of which would impose an unjustifiable hardship on the employer.”

17                  The learned Magistrate noted that the ATO had taken inefficiency proceedings against Ms Low within the context of the Public Service Act 1922 (Cth). His Honour said at 9:

“…there is nothing before the Court to indicate that any actual or imputed disability that might have been attributed to Ms Low by the ATO was in any way connected to any action that the ATO took against Ms Low.”

18                  In respect of Ms Low’s claims under ss 9, 15 and 18 of the RDA, his Honour found at 9:

“There is nothing whatsoever to suggest that anything that was done by the ATO in relation to Ms Low had any connection to her race, colour, descent or national or ethnic origin.”

and at 10:

“..there is nothing whatsoever to suggest that the actions of the ATO in relation to the terms of Ms Low’s appointment, her opportunities for training and promotion and her ultimate dismissal had any connection with her race, colour or national or ethnic origin.”

19                  In respect of the SDA, Ms Low alleged breaches of ss 6, 14 and 28B of that Act. The learned Magistrate dealt with these allegations by saying that:

“Section 6 deals with discrimination on the ground of marital status. Section 14 deals with discrimination in employment in relation to a person’s sex, marital status, pregnancy or potential pregnancy. Section 28B deals with unlawful sexual harassment. Ms Low has not advanced anything capable of connecting any action that may have been taken in relation to her in her employment with the ATO to her sex or marital status. She has not alleged any sexual harassment of her. She has in fact alleged unwarranted complaints of sexual harassment by her which are not material for the purposes of section 28B.”

20                  On appeal Ms Low, who represented herself, submitted that the ATO committed “‘institutionalised’ breaches of human rights”. She prepared, subject to Court direction, a detailed written submission in support of her appeal. None of the detailed allegations in those submissions bears upon any claim that the ATO breached any relevant section of the DDA, the RDA or the SDA.

21                  The learned Magistrate concluded in his reasons for judgment that Ms Low has had many opportunities in the Federal Magistrates Court and in this Court (with respect to the directions hearing before of Whitlam J) “to put her application on a foundation that would provide an arguable basis for her allegations of unlawful discrimination under [the DDA], [the SDA] and [the RDA]… [but] has failed to do so.” I agree with that view. Nothing has been put on appeal to persuade me to a different view. Like the learned Magistrate I consider the application of Ms Low to be one that is bound to fail. Accordingly I am of the view that his Honour did not err in dismissing Ms Low’s application. The appeal will be dismissed with costs.

22                  It should be recorded that at the conclusion of her submissions Ms Low made application for pro bono legal assistance pursuant to Order 80 of the Rules of Court. Having regard to the timing of the application and the absence of any particular need for pro bono assistance the Court declined to grant Ms Low’s application. In doing so the court was mindful of the Full Court’s observation in Lokeni Hui v Commonwealth of Australia [2001] FCA 69 at [6] that “…the use of Order 80 should be confined to cases of particular need”.

Associate:

Dated:              13 June 2001