FEDERAL COURT OF AUSTRALIA

Taylor v Human Rights & Equal Opportunity Commission [2001] FCA 852

ADMINISTRATIVE LAW – judicial review – extension of time – relevant factors – decision of Human Rights and Equal Opportunity Commission – need to engage Community Law Service as instructing solicitor – necessity to instruct counsel – arguable but not strong case – no prejudice to respondents – application for extension allowed – no question of principle

Disability Discrimination Act 1992 (Cth) s 15(2), s 10

Administration Decisions (Judicial Review) Act 1977  (Cth)

Hunter Valley Development Pty Ltd v Cohen (1984) 3 FCR 344 cited

Moodie v Department of Defence (1993) 30 ALD 813 cited

DAVID TAYLOR v THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMMISSION and STATE OF WESTERN AUSTRALIA (WESTERN AUSTRALIAN POLICE SERVICE)

W212 of 2000

FRENCH J

5 JULY 2001

PERTH

THE COURT ORDERS THAT:

1.         The time limited for the Applicant and the Second Respondent to file applications for orders of review of the decision of the First Respondent made 4 September 2000 is extended to 18 July 2001.

2.         Costs of each of the applications for an extension of time are reserved to be determined in the substantive proceedings.

3.         Any further affidavits upon which any of the parties wish to rely be filed and served by 1 August 2001.

4.         The application and cross-claim are set down for hearing on 13 August 2001 at 10.15am.

5.         The Applicant is to file and serve a written outline of submissions on or before 6 August 2001.

6.         The Second Respondent is to file and serve a written outline of submissions on or before 9 August 2001.

7.         There be liberty to apply.

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

REASONS FOR JUDGMENT

ON APPLICATION FOR EXTENSION OF TIME

Introduction

1                     David Taylor seeks an extension of time within which to bring an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) for an order of review of a decision of the Human Rights and Equal Opportunity Commission.  The decision of the Commission found that the Western Australian Police Service had discriminated against Mr Taylor in his employment, contrary to the Disability Discrimination Act 1992 (Cth).  The discrimination was found to exist in respect of one particular incidence.  Other complaints of discrimination he had made were not made out.   

The Decision

2                     David Taylor is a police officer in the Western Australian Police Service (“Police Service”).  He was a Senior Constable at Karratha from January 1996 to July 1998.  He made a claim before the Human Rights and Equal Opportunity Commission that the Police Service had unlawfully discriminated against him in his employment, contrary to s 15(2) of the Disability Discrimination Act 1992 (Cth).  There was a preliminary issue determined by the Commission in favour of Mr Taylor that he was in an employment relationship with the Police Service for the purposes of the Act.  Mr Taylor had originally claimed that he had suffered both direct and indirect discrimination.  He abandoned his claim of indirect discrimination and pursued only his claim of direct discrimination as defined in s 5 of the Act. 

3                     The claim under which the complaint arose was as follows.  Mr Taylor was born on 25 February 1962.  He became a cadet in the Police Service in January 1979 and graduated as a constable in 1981.  In February 1985, he was involved in a car accident in which he suffered a serious closed head injury which required some months of treatment.  He returned initially to light duties on the Police Service at the North Perth Police Station on 20 June 1985 and was later placed on full operational duties from 18 November 1985.

4                     Mr Taylor remained in the Police Service.  He married in July 1986.  His wife was then a serving police officer.  In January 1996, he was transferred to the Karratha Police Traffic Branch and remained stationed there until he was transferred to the Belmont Police and Citizens Youth Club in July 1998. 

5                     He complained that while he was stationed at Karratha, the Police Service discriminated against him on the grounds of disability.  The relevant disability is said to be the past head injury which he suffered and a neuropsychological or psychological illness imputed to him by the Police Service.  The complaint to the Commission was that the Police Service discriminated against him in his terms and conditions of employment by scrutinising his conduct more closely than that of others, by unexplained delay in processing his long service leave application in 1996/97 and by making unsubstantiated allegations against him.  The Police Service was also said to have discriminated against Mr Taylor by denying or limiting his access to opportunities for promotion, transfer or training or other benefits associated with his employment.  In this respect he alleged that his appointment to undertake relief duties at Onslow was cancelled by the Police Service in April 1997, he was not offered the opportunity to carry out higher duties and/or his access to such opportunities was limited, he was involuntarily transferred to Perth and he was barred by the Police Service from applying for positions above the 26^th parallel. 

6                     He also complained that he was disciplined in September 1997 by being placed on a disciplinary program under the guise of a “rehabilitation program” and that in May 1997 he was compelled to undergo unnecessary neuropsychological examination, the results of which were not communicated to him in a timely or appropriate manner.

7                     The Police Service, on the other hand, contended that his conduct and actions during the relevant period warranted scrutiny by his superior officers, his long service leave application was processed in the ordinary manner and his appointment to undertake relief duties at Onslow was cancelled because he was considered incapable of coping with the environment and demands associated with relief duties.  The Police Service also asserted that he carried out relieving or higher duties on two occasions during the relevant period and that other relieving or higher duties were not offered to him because they coincided with his return from long periods of sick leave, annual leave and rehabilitation.  Assisting him to return to his substantive position was considered more appropriate.  It was also asserted that he was asked by his superintendent to transfer out of Karratha as he believed it would be in Mr Taylor’s best interests to make a fresh start.  The superintendent was unable to provide positive support for any application from Mr Taylor to transfer to a position above the 26^th parallel.  He was placed on a rehabilitation program which was not disciplinary in nature and the neuropsychological examination which he underwent was voluntary.  The Police Service denied that any of the matters set out in the details of the complaint were done for the reason of or for reasons which included that Mr Taylor was suffering from a disability.

8                     In the event, the Commissioner found that the cancellation of Mr Taylor’s relief appointment at Onslow did constitute unlawful discrimination pursuant to s 15(2)(b) of the Disability Discrimination Act.  Compensation was determined at $600 for loss of income resulting from the cancellation and $5,000 for injury to feelings caused by it.  The determination was made pursuant to s 103 of the Disability Discrimination Act and was made on 4 September 2000.  The application for an order for extension of time seeking an order of review of the decision under the ADJR Act was made on 12 December 2000.  The time limited for bringing an application under the ADJR Act expired twenty-eight days after the making of the decision for which review was sought. 

The Explanation for the Delay

9                     The decision of the Human Rights and Equal Opportunity Commission was sent by letter from the Commission to Ms Kathryn Choules at the Sussex Street Community Law Service Inc which was representing Mr Taylor in the proceedings before the Commission.  Mr Steven Walker, a barrister was instructed by the Community Law Service on behalf of Mr Taylor.  The Community Law Service received the reasons for decision from the Commission on or about 6 September 2000.  On the same day, Ms Choules contacted Mr Taylor and Mr Walker by telephone and informed them that the decision had been delivered.  She sent a copy of the decision to each of them on the same day.  The decision provided for a further telephone hearing to be conducted in relation to costs.  The telephone conference as to costs was listed for 11 September 2000 and various discussions ensued between Ms Choules and the Western Australian Police Union of Workers in relation to those costs.  She spoke with Mr Taylor on 18 September 2000.  He told her that he was considering seeking review of the Commission’s decision.  Ms Choules told him that she had been trying unsuccessfully to contact Ms O’Brien, the solicitor with the Community Law Service who had previously been handling the matter and that she would get in touch with his counsel, Mr Walker.

10                  On 19 September, Ms Choules spoke with Ms O’Brien and as a result of that conversation told Mr Taylor he could contact Mr Walker direct.  Mr Taylor made an appointment on that or the following day to see Mr Walker.  The appointment was for 28 September, which was the first day possible for both of them.  At that time he received what he described in his affidavit as “preliminary advice”.  He told Mr Walker that he wished to proceed further.  Mr Walker told him he would need to get instructing solicitors and he would then consider further what steps should be taken.  Mr Taylor said in his affidavit that he “… promptly requested” Sussex Street Community Law Service to act for him as instructing solicitors.  He was told that the necessary decision would be made by the Management Committee at its next meeting.

11                  In a supplementary affidavit, Mr Taylor said that after the meeting with Mr Walker he needed to consider the advice which he had been given.  He wanted to consider such matters as the impact on his family and their financial position if he decided to proceed.  His work at Belmont Police Station on night shift made it difficult for him to contact people during regular working hours.  He said he asked his wife to contact Ms Choules. 

12                  According to Ms Choules’ affidavit the first contact with the Service was on 12 October when Mr Taylor’s wife informed her that he wanted to seek to have the decision reviewed.  But having received “no firm instructions from the applicant” Ms Choules contacted Mr Walker on 20 October and told him that the Sussex Street Community Law Service “did not have the present capacity to take on the matter”.  Mr Walker said he would prepare the necessary papers if Ms Choules would be the solicitor on the record.  This required prior approval of the Management Committee.  Ms Choules got back to Mrs Taylor on the same day and asked for written instructions.  These were sent on 27 October.  The members of the Management Committee then agreed, after some delay due to the absence of a quorum, to approve Ms Choules acting as solicitor on the record.  Mr Taylor contacted Mr Walker on the same or the following day.  The application for an extension of time was filed on 12 December. 

13                  On the date that the present application was filed the time limited for an application for an order under the ADJR Act had been exceeded by nine and a half weeks.  That delay was not trivial.

The Grounds for Review

14                  There is nothing in the application or in the affidavits in support of it to indicate the grounds upon which an order of review is now sought.  In the ordinary course it would be expected that an application for extension should annex the proposed application for an order of review.

15                  In oral submission, Mr Walker referred to the provisions of the Disability Discrimination Act.  Section 15 prohibits discrimination against an employee “on the ground of the employee’s disability…” in the terms or conditions of employment or by denying or limiting the employee’s access to opportunities for promotion, transfer or training or to any other benefits associated with the employment or by dismissing the employee or subjecting the employee to any other detriment.  Section 10 of the Act provides that:

“10.  If:

(a)       an act is done for 2 or more reasons; and

(b)       one of the reasons is the disability of a person (whether or not it is the dominant or a substantial reason for doing the act);

then, for the purposes of this Act, the act is taken to be done for that reason.”

16                  Mr Walker submitted that the Commissioner who applied s 10 in relation to the cancellation of Mr Taylor’s opportunity to carry out relief duties at Onslow did not apply  it in his consideration of Mr Taylor’s involuntary transfer to Perth.  The Commissioner, however, saw the transfer to Perth as arising from:

“…the difficulty the complainant had experienced at Karratha Police Station in terms of his clashes with other officers, his attitude to the integration of traffic duties and general duties policing and his behavioural performance generally.”

The Commissioner did not expressly exclude disability as a ground for the transfer, but having regard to his reasons it would appear to be excluded by necessary implication.

17                  In my opinion the substantive case as disclosed in the exchange with counsel is a weak one.  It cannot, however, be said to be unarguable.  There is therefore a possibility that the applicant could succeed if the application proceeds. 

Prejudice to the Second Respondent

18                  Counsel for the Police Service was unable to point to any prejudice suffered by reason of the delay.  However, conditional upon the extension of time being granted to Mr Taylor, the Police Service also seeks leave to apply out of time for an order of review of the Commissioner’s decision on the ground that it involved an error of law.  The error of law relied upon is the Commissioner’s finding that the Police Service was Mr Taylor’s employer within the meaning of s 15(2)(b) of the Disability Discrimination Act. 

Principles Affecting Extension

19                  Section 11 of the ADJR Act sets out the manner of making applications under the Act and in s 11(1)(c) provides:

“11(1)  An application to the Federal Court or the Federal Magistrates Court for an order of review:

…

(c)        shall be lodged with a Registry of the court concerned and, in the case of an application in relation to a decision that has been made and the terms of which were recorded in writing and set out in a document that was furnished to the applicant, including such a decision that a person purported to make after the expiration of the period within which it was required to be made, shall be so lodged within the prescribed period or within such further time as the court concerned (whether before or after the expiration of the prescribed period) allows.”

The relevant time limit expires on the twenty eighth day after the furnishing of the reasons for decision to the applicant (s 11(3)(a)).

20                  Factors relevant to the grant of an extension of time include whether there is an acceptable explanation for the delay, whether any prejudice was occasioned to the respondent by the delay and whether the substantive application has merit.  Considerations of fairness as between the parties and as between the parties and other persons are also relevant – Hunter Valley Development Pty Ltd v Cohen (1984) 3 FCR 344; Moodie v Department of Defence (1993) 30 ALD 813.

21                  In my opinion this is a borderline case.  The delay is significant but has not occasioned prejudice to the Police Service.  The delay is explained, albeit in part by a lack of urgency in the steps taken by Mr Taylor and the Sussex Street Community Law Service.  There is an arguable case, but it does not appear to be a strong one.

22                  Mr Taylor, it should be noted, is at risk of losing the award already made by reason of the proposed application by the Police Service as well as incurring liability for costs should he lose the case in any event.  But the risk is his to assess having regard to such advice as he may be given.  In my opinion, the extension of time should be granted and, as a matter of fairness, time extended also for the Police Service to bring its own application in relation to the Commissioner’s decision on the preliminary question of whether Mr Taylor was an employee of the Service.

Associate:

Dated:              5 July 2001