FEDERAL COURT OF AUSTRALIA

Zheng v Beamish [2004] FCA 512

PRACTICE AND PROCEDURE – application for extension of time in which to file a notice of appeal – where delay is not great and explicable – whether proposed grounds of appeal disclosed an arguable case – application dismissed

Federal Court Rules O 52 rr 15(1) and 15(2)

Jess v Scott (1986) 12 FCR 187referred to

NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24 referred to

ZHONG HAI ZHENG v JEWELS LOUISE BEAMISH

N 450 of 2004

ZHONG HAI ZHENG v JEWELS LOUISE BEAMISH

N 451 of 2004

MOORE J

29 APRIL 2004

SYDNEY

THE COURT ORDERS IN PROCEEDING N 450 of 2004 THAT:

1.         The application for an extension of time to file and serve a notice of appeal be dismissed.

2.         The applicant pay the respondent's costs of the application.

THE COURT ORDERS IN PROCEEDING N 451 of 2004 THAT:

1.         The application for an extension of time to file and serve a notice of appeal be dismissed.

2.         The applicant pay the respondent's costs of the application.

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

REASONS FOR JUDGMENT

1                     This judgment concerns two applications ("the applications") by Mr Zheng ("the applicant") for an extension of time to file and serve notices of appeal to appeal against two judgments of a Federal Magistrate of 19 February 2004 (Beamish v Zheng [2004] FMCA 60 and Zheng v Beamish [2004] FMCA 61).  In the first judgment, the Federal Magistrate determined that the applicant had sexually harassed Ms Beamish ("the complainant") and in the second judgment, rejected a complaint by the applicant that the complainant had behaved in an offensive manner towards him because of his race.

2                     Under Order 52 r 15(1) of the Federal Court Rules, the applicant was required to file and serve on the complainant a notice of appeal by 11 March 2004.  On 31 March 2004, the applicant filed the applications along with two supporting affidavits and two draft notices of appeal.  The supporting affidavits do not address the issue of why an extension should be granted, but rather address the grounds of the appeal.  The grounds contained in the notices of appeal are substantially the same as, if not identical to, those contained in the supporting affidavits.  As to the application concerning the judgment about sexual harassment, the grounds identified in the affidavit in support are:

I'm Zhong Hai Zheng seeking justice from the Court.

1.      The alleged sexual assault claim against me taking place while I was absent from factory.

2.      I've never been able to say "pay $200 for sex" and "jiggy-jiggy" due to my poor English.

3.      I've tried to "touch the plaintiff's breast" is a sheer fabrication.

4.      The plaintiff lied to the court that she had started working in the factory on 23^rd February 2001.

5.      The alleged incident took place during the lunch time 1.00 pm – 1.30 pm on 31^st August.  I was on my lunch break at canteen which is 300 m away from respondent's work platform.  How could I offer the $200 to her for sex?

6.      I request the court investigate the attendance records for the respondent on 31^st August 2001, when the alleged incident occurred.

As to the application concerning the judgment about racial vilification, the grounds identified in the affidavit supporting the application are:

I'm Zhong Hai Zheng seeking justice from the court.

1.      The respondent often called me "gay" verbally assaulting me.

2.      The respondent showed me her piercing in her tongue.

3.      The respondent padded my head from time to time insulting me.  Chinese man's head cannot be padded by a woman.

4.      The respondent often called me "Chinese" and showed me the middle finger.

5.      The respondent once took my work hat off saying "Johnson is bald…"

6.      I request the Court return me the justice and punish the real perpetrator.

3                     The applicant was unrepresented at the hearing.  He addressed the Court through an interpreter.  It was apparent that his case in support of the extension of time had two or possibly three elements.  The first was that there was an acceptable explanation for the delay.  The second was that his account of the events on which the two judgments were based, was correct and had been wrongly rejected by the Federal Magistrate.  The third, which was really an aspect of the second, was that at least during some of the period in which the Federal Magistrate found he had sexually harassed the complainant (who was a co-worker), the applicant had not been present at work and had been on long service leave.  Before discussing these matters it is convenient to refer to the judgments of the Federal Magistrate.

Federal Magistrate's decision

4                     On 18 March 2003 the complainant made an application to the Federal Magistrates Court under s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) seeking, among other things, a declaration that the applicant had engaged in sexual harassment contrary to s 28B of the Sex Discrimination Act 1984 (Cth), an order requiring the respondent to apologise and monetary compensation.  On 26 November 2003 the applicant made an application to the Federal Magistrates Court under s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) seeking damages for 'racial harassment'.  The Federal Magistrate treated this claim as asserting a breach of s 18C of the Racial Discrimination Act 1975 (Cth).  The Federal Magistrate heard the two applications together on 10 February 2004 and gave judgment in each matter on 19 February 2004. 

5                     The gist of the complaint made by the complainant about sexual harassment was that the applicant had made, over a period of time, inappropriate comments to her of a sexual nature, attempted to touch her in a sexual way and offered to pay her money for sexual favours.  In relation to these allegations, his Honour accepted the account of the complainant and rejected the account of the applicant who denied they had occurred.  His Honour found that:

The statements made by [the applicant] was clearly conduct of a sexual nature.  So was his action in attempting to touch [the claimant's] breasts.  The conduct was unwelcome.  His offer to pay $200 for sex was an unwelcome request for sexual favours.

The workplace in which [the applicant and the claimant] worked was a fairly rough and tumble place in which lighthearted behaviour was tolerated.  In the circumstances, a certain amount of sexual banter could have been anticipated.  However, [the applicant's] conduct was persistent and went beyond anything that could be described as lighthearted sexual banter.  [The claimant's] reactions to his conduct should have made clear that it was unwelcome.  In the circumstances, a reasonable person would have anticipated that [the claimant] would have been offended, humiliated or intimidated by [the applicant's] persistent conduct.  In particular, the attempt to touch her breasts was unacceptable and the offer of money for sex was grossly demeaning.

His Honour held that the applicant had breached s 28B(2) of the Sex Discrimination Act 1984 (Cth) and that the complainant was entitled to an apology and damages for non economic loss in the sum of $1000.  In assessing the evidence and determining whether the events as alleged by the complainant had occurred, his Honour noted, correctly, that because of the seriousness of the allegations he had to be comfortably satisfied that the events had occurred.  The Federal Magistrate indicated he had a 'high degree of satisfaction' that the allegations made by the complainant were true.

6                     His Honour noted that various aspects of the complainant's evidence were corroborated by Ms Farmer and Mrs Beamish, the complainant's mother, and found:

[the complainant], Ms Farmer and Mrs Ruby Beamish to be plausible witnesses.  They resisted attacks upon their credibility under cross-examination.  They were unshaken in their evidence.

In relation to the applicant's evidence, his Honour found that the applicant was not an impressive witness:

In contrast, [the applicant] was not an impressive witness.  He was very emotional when giving evidence and that needs to be taken into account but, even so, his evidence was internally inconsistent, vague and unpersuasive.

7                     In relation to the application brought by the applicant alleging racially offensive behaviour in contravention of the Racial Discrimination Act 1975 (Cth), his Honour found, in substance, that the allegations were an invention made in response to the claim of sexual harassment.  His Honour dismissed this application.

The application for an extension of time

8                     Order 52 r 15(2) of the Federal Court Rules states:

Notwithstanding anything in the preceding sub-rule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal.  (Emphasis added)

9                     The phrase 'special reasons' was considered by the Full Court in Jess v Scott (1986) 12 FCR 187.  The Court held (at 195) that:

What is needed to justify an extension of time is indicated in r 15(2) by the words "for special reasons".  It is that there be shown a special reason why the appeal should be permitted to proceed, though filed after the expiry of twenty-one days.  In that context, the expression "special reasons" is intended to distinguish the case from the usual course according to which the time is twenty-one days.  But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the Court sees a ground which does justify departure from the general rule in the particular case.  Such a ground is a special reason because it takes the case out of the ordinary.  We do not think the use of the expression "for special reasons" implies something narrower than this.

…

It should not be overlooked that r 15(2) enables leave to be given "at any time"; the "special reasons" relevant to such a power cannot but describe an elastic test, suitable for application across a range of situations, from an oversight of a day to a neglect persisted in during a prolonged period.  It would require something very persuasive indeed to justify a grant of leave after, for example, a year; equally, it may be said, something much less significant might justify leave where a party is a few days late.  "Special reasons" must be understood in a sense capable of accommodating both types of situation.  It is an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served.

10                  Adopting this approach in the present case, two matters need to be considered in determining whether there are special circumstances.  The first is the explanation for the delay (which was not great) and the second is the applicant's prospects in any appeal if time is extended.

11                  The applicant explained, from the bar table, why the appeals were not brought in time.  I indicated I would accept the applicant's account of events after the Federal Magistrate gave judgment unless the account was put in issue.  It was not.  The gist of the account (though it was somewhat confused) was that when the judgments were given, the applicant became extremely upset and emotional and nearly lost consciousness.  He was not then told he could appeal and was made aware, but only in general terms, that he could appeal when he spoke to Registry staff sometime later that day.  He was still extremely upset.  He was under the impression that he had 60 days to appeal.  On 25 March 2004 he asked his son to ring the Federal Court to find out whether the 60 days commenced from the date of the hearing (10 February 2004) or commenced from the date judgment was given (19 February 2004).  When his son was told the applicant had 21 days in which to appeal, the applicant immediately set about obtaining and lodging documents to bring the appeals.  He remained very upset about what had happened.  I should add that it was apparent at the hearing before me that the applicant remained extremely troubled and upset. 

12                  In the circumstances I have just described, the delay in bringing the appeals is not a factor weighing heavily against extending time.  A more important factor is whether the applicant has any prospects of succeeding in the appeals if time were extended.  As noted earlier, the applicant was unsuccessful in two applications because the Federal Magistrate did not believe his account of events and did believe the account of the complainant.  The applicant did not point to anything concerning the way the Federal Magistrate assessed the evidence that suggested his Honour erred.  Nor is it apparent to me on a reading of his Honour's reasons for judgment in each matter that there is any error likely to result in his judgments being set aside.

13                  It is, however, necessary to refer to one matter of detail.  The findings of the Federal Magistrate included a finding that acts of sexual harassment occurred at the workplace of the applicant and complainant in April 2001 and following weeks.  The applicant's evidence before the Federal Magistrate, at least in his evidence in chief (in an affidavit), was that he went on long service leave on 26 March 2001 and did not return from that leave until June 2001.  The complainant's evidence in chief (in an affidavit) was that while she started work in late February 2001, she did not meet the applicant until March 2001 because he had been absent on long service leave.  The applicant repeated the claim before me that he had been on long service leave for that period  (March to June 2001).  In support of this account, he handed up (which I marked as an exhibit in the applications) a document that, on its face, is a business record of his former employer.  It is an extract from a document titled "Payroll Journal".  There is a journal entry, by way of debit, for 21 March 2001 for the sum of approximately three and a half thousand dollars referable to long service leave.

14                  What this document demonstrates is far from clear.  However, more importantly, it is a document that the applicant conceded he had in his possession at the time the applications were heard by the Federal Magistrate.  He could have sought to tender it at the hearing.  Applying settled principles, there is almost certainly no prospect that the applicant would be able to tender the document in any appeal if time were extended.  The applicable principles were recently discussed by a Full Court in NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24.  The Court said (at [42]):

In order for an appellate court to receive further evidence, two conditions must be satisfied:  first, the party seeking to adduce the evidence must show that it could not, with reasonable diligence, have been adduced at the trial; and, secondly, the evidence must be such that very probably the result would have been different:  see, for example, Orr v Holmes (1948) 76 CLR 632 at 635-636 per Latham CJ.  The second condition has been variously expressed in the cases, but the point made in all of them is that it is not enough that the new evidence was relevant and otherwise admissible, and may have affected the result.  Language referring to, at the lowest, ‘probability’, and at the highest, ‘certainty’, of a different result, has been used:  cf R v Copestake; Ex parte Wilkinson [1927] 1 KB 468 at 477 (‘of such importance as very probably to influence the decision’ and ‘of such weight as, if believed, would probably have an important influence on the result’);  Orr v Holmes at 636 (‘high degree of probability that the admission of the new evidence would result in a different verdict’);  Florance v Andrew (1985) 58 ALR 377 at 381 (‘such a different complexion on the case that a reversal of the former result ought certainly to ensue’);  Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 at 367-368 ((as agreed by the parties) ‘almost certain that, … , an opposite result would have been reached by the primary judge’).

In my opinion, it is almost certain the applicant would satisfy neither condition in relation to the extract from the "Payroll Journal" if he sought to tender it in any appeal.  It would not be admitted into evidence in any appeal.  Accordingly, if time were extended, any appeal would be determined by reference to the evidence led before the Federal Magistrate.  For reasons already given, I do not consider that the applicant would be able to demonstrate appealable error resulting either in findings of fact being made differently to those made by the Federal Magistrate or an order for a retrial.  In my opinion, if time were extended, the applicant would have no prospects of succeeding in his appeals.

15                  The applicant has not demonstrated special reasons warranting an extension of time.  The applications are dismissed and the applicant is ordered to pay the complainant's costs of the applications.

Associate:

Dated:              29 April 2004