FEDERAL COURT OF AUSTRALIA

Ingram-Nader v Brinks Australia Pty Limited [2005] FCA 1541

PRACTICE AND PROCEDURE – leave to appeal – matter of practice and procedure – interlocutory judgment – interference with exercise of discretion - sufficient doubt to warrant reconsideration

HUMAN RIGHTS – extension of time – principles to be applied – prejudice – merits of application – evidence from bar table - procedural fairness

Human Rights and Equal Opportunity Commission Act 1986 (Cth) - ss 46PH and 46PO

Sexual Discrimination Act 1984 (Cth) – ss 27 and 106

Australian Coal and Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621 referred to

Comcare v A'Hearn (1993) 45 FCR 441 cited

Décor Pty Limited v Dart Industries Inc (1991) 33 FRC 397 applied

Dix v Crimes Compensation Tribunal (1993) 1 VR 297 cited

Doyle v Chief of Staff (1982) 42 ALR 283 cited

Drew v Bates & Anor [2005] FMCA 1221 referred to

House v R (1936) 55 CLR 419 applied

Kioa v West (1985) 159 CLR 550 referred to

Minogue v Williams (2000) 60 ALD 366 referred to

Pham v Commonwealth of Australia [2002] FCA 669 referred to

Phillips v Australian Girls Choir Pty Limited [2001] FMCA 109 referred to

Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 cited

Wedesweiller v Cole (1983) 47 ALR 528 cited

NEHME INGRAM-NADER v BRINKS AUSTRALIA PTY LIMITED

NSD 1812 of 2005

JACOBSON J

3 NOVEMBER 2005

SYDNEY

THE COURT ORDERS THAT:

1.          Leave be granted to the applicant to appeal from the decision of Federal Magistrate Driver dismissing an application for an extension of time.

2.          The grounds of appeal be limited to whether the Federal Magistrate erred in his consideration of:

(a)    the test of whether  the respondent was prejudiced by the delay; and

(b)   whether the respondent was liable for the actions of its employees in light of s106 of the Sexual Discrimination Act 1984 (Cth).

3.          The applicant file and serve a notice of appeal identifying the grounds of appeal in or to the effect of the terms contained in order 2 above.

4.          Costs of the application be costs in the appeal.

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

REASONS FOR JUDGMENT

Introduction

1.               This is an application for leave to appeal against the interlocutory orders and judgment of Federal Magistrate Driver dated 19 September 2005.  On that date the learned magistrate dismissed an application to extend time to apply to the Federal Magistrates Court (“FMC”) for relief under s 46PO(2) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“HREOC Act”).

2.               The applicant was employed by the respondent for a period of about seven years from 1998 to 2004.  He made a complaint to the Human Rights and Equal Opportunity Commission (“HREOC”) in December 2004 of sexual harassment by employees of the respondent.  The complaint was terminated by HREOC on 1 June 2005 under s 46PH(1) of the HREOC Act.  The applicant then filed an application in the FMC on 26 August 2005, 58 days out of time.

3.               The learned Federal Magistrate refused the application for an extension of time for three reasons.  First, his Honour was of the view that the applicant’s explanation for the delay in commencing the proceedings was “only partially convincing”.  Second, he considered that there was “real and substantial” prejudice to the respondent.  The third reason is that his Honour appears to have taken an adverse view of the applicant’s prospects of success in the proceedings.

4.               His Honour dealt with the matter on the first return date of the application and he gave an ex tempore judgment.  The application was supported by sworn and unsworn evidence.  The applicant’s counsel indicated he was ready to proceed on the day.  The respondent was represented by Mr Gurran, its Human Resources Manager.  Mr Gurran expressed some reticence about proceeding.  Nevertheless, he put submissions and gave what amounted to evidence from the bar table.

5.               The applicant claims that his Honour fell into error of principle within the well known authority of House v R (1936) 55 CLR 419 at 504-5.  Three errors are put forward:  first that he made unsupported factual findings of prejudice on the basis of Mr Gurran’s statements; second, that the applicant was denied procedural fairness because he was not given the opportunity to test the unsworn evidence, in particular the statements about the respondent’s prejudice; third, that his Honour misapplied the principles governing extensions of time under s 46PO(2) of the HREOC Act.  The parties agreed to the application for leave to appeal being determined on the papers and I have done so.

6.               There was no real dispute about the principles which apply to the grant of leave to appeal.  The applicant accepted that it was necessary to demonstrate that his Honour’s decision was attended by sufficient doubt to warrant reconsideration and that substantial injustice would result;  Décor Pty Limited v Dart Industries Inc (1991) 33 FRC 397 (“Décor”).  However, the learned magistrate’s decision was made in the exercise of his discretion on a matter of practice and procedure, as to which the courts ordinarily show caution in the grant of leave.  It is true that the decision has the practical effect of finally determining the applicant’s rights in relation to his complaint of discrimination; nevertheless, an appellate court will not lightly interfere with the exercise of the discretion; Minogue v Williams (2000) 60 ALD 366 at [18] – [19] per Ryan, Merkel and Goldberg JJ;  Australian Coal and Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621 at 627 per Kitto J. 

Background

7.               The substantive proceedings concern allegations of sexual harassment as defined in s 28A of the Sexual Discrimination Act 1984 (Cth) (“SDA”).  The applicant claims that over a period of several years spanning 19 December 1998 to 31 August 2004, whilst in the employment of the respondent, he was subject to sexual harassment consisting of ridicule, discrimination and abuse.  The applicant claims that respondent is vicariously liable for the actions of its employees, pursuant to s106 of the SDA.

8.               The applicant commenced employment with the respondent as a Despatch Officer (Security Guard) in 1998.  In his written complaint to HREOC, dated 20 December 2004, the applicant states that at a work Christmas party in December 1998 he told his colleagues that he was bi-sexual.  From this point onwards, he was the subject of continued sexual harassment in the form of verbal and physical abuse, including “stares, whispers and sexual and lewd comments from other staff and crew members”.  The applicant claims the abuse was daily and nightly, from both supervisors and road crews.  Attached to his complaint was evidence of harassment which took written and pictoral form, and statements from other employees of the respondent describing the harassment of the applicant.

9.               The applicant injured his lower back during the course of his normal duties on in November 2001 and again in December 2002.  As a result of these injuries, there were periods when the applicant was unable to work or was only able to perform restricted duties. The applicant claims that he continued to be the subject of harassment when he attended the workplace to provide medical certificates.   Attached to the applicant’s complaint are copies of medical certificates dated 1 November 2002, 11 April 2003, 9 September 2003 and 2 October 2003 which diagnose the applicant as suffering “anxiety depression” and “depression and chronic pain secondary to back injury”.

10.            The applicant’s complaint to HREOC was terminated on 1 June 2005 on the grounds that there were no reasonable prospects of the matter being settled by conciliation. 

Application to the Federal Magistrates Court

11.            Section 46PO of the HREOCAct provides that if a complaint has been terminated by the President of HREOC, a person may make an application to the Federal Court or the Federal Magistrates Court alleging unlawful discrimination by one or more of the respondents to the terminated complaint. 

12.                 Section 46PO(2) of the HREOC Act provides that:-

“The application must be made within 28 days after the date of issue of
the notice under subsection 46PH(2), or within such further time as the court concerned allows.”

13.                The principles relating to an extension of time in human rights proceedings were summarised by McInnes FM in Phillips v Australian Girls Choir Pty Limited [2001] FMCA 109 (“Phillips”) at [10] as follows:- 

“1.       There is no onus of proof upon an applicant for
extension of time though an application has to be
made.  Special circumstances need not be shown, but the court
will not grant the application unless positively satisfied
it is proper to do so.  The ‘prescribed period’ of 28 days
is not to be ignored (Ralkon v Aboriginal Development
Commission (1982) 43 ALR 535 at 550).

2.         It is a prima facie rule that the proceedings commenced
            outside the prescribed period will not be entertained
            (Lucic v Nolan (1982) 45 ALR 411 at 416).  It is not a
            pre-condition for success in an application for
            extension of time that an acceptable explanation for
            delay must be given.  It is to be expected that such an
            explanation will normally be given as a relevant matter
            to be considered, even though there is no rule that such
            an explanation is an essential pre-condition (Comcare v
            A'Hearn (1993) 45 FCR 441 and Dix v [Crimes]
            Compensation Tribunal (1993) 1 VR 297 at 302). 

3.         Action taken by the applicant other than by making an
            application to the court is relevant in assessing the
            adequacy of the explanation for the delay.  It is relevant
            to consider whether the applicant has rested on his
            rights and whether the respondent was entitled to
            regard the claim as being finalised. (See Doyle v Chief
            of Staff (1982) 42 ALR 283 at 287)

4.         Any prejudice to the respondent, including any
            prejudice in defending the proceeding occasioned by
            the delay, is a material factor militating against the
            grant of an extension.  (See Doyle at 287)

5.         The mere absence of prejudice is not enough to justify
            the grant of an extension (See Lucic at 416) 

6.         The merits of the substantial application are properly
to be taken into account in considering whether an
extension of time should be granted. (See Lucic at 417)

7.         Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion (Wedesweiller v Cole (1983) 47 ALR 528).”

14.                The discretion afforded to the court under s46PO(2) should be exercised in a way which reflects the beneficial and remedial nature of the legislation: Phillips at [13]. 

15.                In Phillips, Federal Magistrate McInnes placed emphasis on the distinction between applications under the HREOC Act and those under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”).  McInnes FM noted that different considerations might apply as human rights legislation, unlike ADJR applications, goes beyond mere judicial review of administrative decisions and deals with fundamental human rights; see at [8] and [11]. 

16.                One consequence of the distinction is that the wider issue of a degree of certainty in time limits for the public benefit may have less weight.  The learned magistrate observed at [11]:-

“…the issue of public administration is less important in a human rights application than it may be in an ADJR applications.  This is for the obvious reason that ADJR application invariably involve consideration of government decisions and a degree of certainty about those decisions is desirable, not only for the applicant but for numerous other persons who may be affected by the decision.  In the case of a human rights application, the claim of discrimination usually relates to the individual case even though there may be a wider impact on others who have been possibly exposed to the same or similar form of discrimination.  The public interest issue which has been emphasised in those cases dealing with the extension of time in ADJR cases has less significance in human rights applications.”

17.                The principles in Phillips was cited with approval in Pham v Commonwealth of Australia [2002] FCA 669 per Gray J (“Pham”).

18.                As Federal Magistrate Phipps observed in Drew v Bates & Anor [2005] FMCA 1221 at [14], the principles in Phillips fall into three categories; firstly, whether there is an explanation for the delay, although there is no onus to establish this; secondly, whether the applicant has an arguable case; and finally, whether there is any prejudice to the respondent occasioned by the delay.

Decision of Federal Magistrate Driver

19.                The applicant relied on an affidavit sworn on 26 August 2005 setting out the basis upon which he made his complaint to HREOC.  The applicant provided a statement of reasons for seeking an extension of time in an attachment to his application.  In this statement, there is reference to a report of Ms Stern, Rehabilitation Psychologist, dated 24 January 2005, which diagnoses the applicant as suffering “depression with comorbid anxiety symptoms and a major adjustment disorder”. 

20.                The applicant stated that he “reacted badly” to the decision of HREOC to terminate his complaint and “became very depressed”.  He states that he has suffered from depression and chronic pain since his back injury in November 2001, and concludes that:-

“Since the HREOC decision I have been unable to face the physical and emotional barrier of attending court and filling out and filing forms.”

21.                The applicant also relied upon an affidavit of his solicitor, Mr Grosart, dated 16 September 2005.  Mr Grosart deposes that the applicant informed him that after the HREOC termination on 1 June 2005, the applicant took no further steps until 27 June 2005 when he applied to Legal Aid; the applicant stated that he was suffered from a serious  depressive illness and chronic back pain during this period.  The applicant also informed him that upon applying to Legal  Aid, he took no further steps in relation to the court proceedings as he was waiting determination of his Legal Aid application. 

22.                Mr Grosart noted that the application to Legal Aid made no reference to HREOC terminating the complaint, and so at the time the application was made, Mr Grosart was not alive to the fact that a time limit for filing proceedings would shortly expire.

23.                Mr Grosart gave evidence that he was on leave and then out of the office between 27 June and 12 August 2005.  The applicant’s application for Legal Aid came to his attention on 15 August 2005, but he still had not appreciated a time limitation issue that needed to be addressed.  He telephoned the applicant on 25 August 2005 to make an appointment to obtain instructions and during this conversation he ascertained the true status of the matter.  Upon obtaining instructions on 26 August 2005, he attended to filing the appropriate documents in the Federal Magistrates Court on that date.

24.                In his reasons for decision, Federal Magistrate Driver referred to the principles in Phillips and turned first to consider the applicant’s explanation for the delay. 

25.                He noted the applicant’s explanation that he suffers from both mental and physical disabilities.  He observed that the applicant relied on the report of Ms Stern, which was issued approximately six months before HREOC terminated the complaint. He also noted the applicant’s contention that his depression was exacerbated by the termination by HREOC.  In the reasons for his decision, the learned magistrate observed that he found this explanation:-

“a little difficult to understand, given that the outcome was not a defeat for the applicant.

It opened up the opportunity for him to institute proceedings in this court and he was so advised in the letter from the delegate of the President of the Commission accompanying the notice of termination.”

26.                The magistrate noted that some explanation for the delay could be found in evidence from Mr Grosart, as there were apparently some problems in the application to Legal Aid and a break down in communication between the applicant and Legal Aid. 

27.                The learned magistrate turned to consider the third principle as enunciated in Phillips.  That is, whether the applicant has rested on his rights and the respondent was entitled to regard a claim as being finalised.  He observed that:-

“It appears that in this matter, the applicant contemplated his position for about a month before seeking Legal Aid.  The issues arising in the manner date from about 1998, although they extended through to 2004.  Mr Gurran, for the respondent, put to me that the allegations made to HREOC came as a surprise to the respondent and the respondent rather thought that the issues might have been resolved at the termination of the complaint.” 

28.                Federal Magistrate Driver next considered any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay.  He noted that this is a material factor against the grant of an extension and stated:-

“The complaint to HREOC was against the employer even though it was a complaint of sexual harassment by reason of the applicant’s sexual preference.  No complaint having been made against the alleged harassers, no proceeding can now be brought in this court against those persons.  The jurisdiction of the court is limited to considering the claim against the harasser’s employer and would be based on asserted vicarious liability.  For its part, the respondent asserted before HREOC that the allegation of harassment came as a surprise.

The employer was aware that the applicant suffered a back condition in the course of his employment, but the respondent asserted to HREOC and would presumably assert in this court that it knew nothing of the sexual harassment allegations until they were raised by way of the complaint.  For his part, the applicant asserts he did make complaints to his supervisors and that nothing was done. Indeed, the harassment became worse.  The applicant has presented material which, if accepted, would point to sexual harassment on the basis of preference having been experienced but it is another matter to establish a case of vicarious liability.

The events go back up to seven years. The respondent asserts that the individuals allegedly responsible for the harassment are no longer employed by the respondent and one relevant witness is no longer in Australia.  There would be a real difficulty for the respondent in dealing with the allegations in this Court.”

29.                The federal magistrate considered the merits of the substantive application.  He observed that the material before HREOC and the court was sufficient to establish a prima facie case of sexual harassment against the persons allegedly responsible for that harassment. However, his honour observed that this:-

“…is not the same as establishing a prima facie case against the single respondent, the employer, which would depend upon proof of vicarious liability.  At this stage and particularly if the only evidence available is that of the applicant, I would have to say the prospects of success of the application against the respondent are uncertain.”

30.                Finally, Driver FM referred to considerations of fairness as relevant to the manner of exercise of the court’s discretion.  He noted that:-

“Mr Gurran for the respondent submits that this matter ought not go any further.  The respondent recognises that the applicant has suffered through his back disability but invited the applicant to move on with his life with the benefit of compensation for that disability.  The applicant has a further grievance based upon the asserted sexual harassment which he wishes to agitate further.  He has had the opportunity to advance that complatint in his proceedings before HREOC.  He could have brought that complaint forward rather earlier than he did.  He certainly could and in my view should have pursued his rights in this court more promptly than he did.”

31.                The magistrate concluded that the application for an extension of time should be refused, having regard to the length of the delay, which he viewed as significant, the explanation of the delay, which he regarded as ‘partially convincing’, the prejudice to the respondent if the proceeding continues, which he considered ‘real and substantial’, and the interests of the administration of justice.

Ground 1 – unsupported findings

32.                There was no real dispute that a number of relevant employees had left the respondent’s employment.  The applicant’s counsel raised the issue himself.  His Honour then asked how the respondent was to deal with the matter.  Counsel replied as follows:-

“MR DONNELLAN [counsel for the applicant]:  Your Honour, could I first say that in terms of looking at it as a matter of prejudice, those members of staff had, I understand, left the employment before the deadline for the lodging of the application, so there’s no additional prejudice, if you like.  Certainly if the respondent was to bring evidence of its inability to find these people that may be a strong consideration, however that might be an issue that further evidence is required.”

33.                Mr Gurran stated that just about every one of the alleged harassers had left the respondent’s employment and that the respondent had no idea where they were.  He said one had gone back to New Zealand. 

34.                After the addresses, his Honour indicated that he was in a position to give judgment.  He asked counsel whether there was anything further he wanted to put.  The reply was as follows:-

“MR DONNELLAN: Your Honour, it’s probably not necessary but just noting a lot of the facts that were put in submissions, and I didn’t object to them on the basis they were put in submissions, some of them I would say are not relevant, in particular the fact about the support of alleged support given in relation to the injuries and the time off in relation to the injuries, I submit that’s simply not relevant to this claim.  There was also some dispute on the facts given from the bar table. Again, I allowed it to go as background for your Honour.”

35.                It may have been preferable for his Honour to have deferred determining the application until the respondent filed evidence of the prejudice alleged.  However, there is a need to determine interlocutory motions quickly and in light of his Honour’s approach to the issue of prejudice, I do not consider that the finding he made, namely that there would be real difficulties in dealing with the allegations, was not open to him on the concession made by Mr Donnellan that a number of the employees had left the respondent’s employment. 

36.                It is true that his Honour found, apparently on evidence from the bar table, that one former employee is no longer in Australia.  Nevertheless, I am not persuaded that sufficient doubt has been raised about the correctness of his Honour’s approach to warrant leave on this ground.

Ground 2 – procedural fairness

37.                In the passage set out at [34], Mr Donnellan pointed out that a number of facts were stated in Mr Gurran’s submissions.  Mr Donnellan said he did not object to them as submissions but he said some were irrelevant and some were background.  He also said that some were disputed, although he did not specify the disputed facts.

38.                Although there are some difficulties in the course which was adopted by the learned Magistrate, in my opinion the better view is that there was no denial of procedural fairness. 

39.                It seems to me that in the passage which I have set out in full at [34], Mr Donnellan consented, or at least did not object, to his Honour determining the application on the basis of what Mr Gurran said from the bar table. 

40.                The content of the principle of natural justice to be observed is determined in light of the particular circumstances: Kioa v West (1985) 159 CLR 550 at 626 per Brennan J.  His Honour went on to observe at 628 that a person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with the relevant matters adverse to his interests which are proposed to be taken into account.

41.                In my view, counsel for the applicant was given sufficient opportunity to respond to the assertions of Mr Gurran, and his consent to the federal magistrate proceeding with judgment negates the suggestion of a denial of procedural fairness. Accordingly, I am of the view that a claim of denial of procedural fairness is not sufficiently arguable.

Ground 3 – misapplication of the principles

42.                His Honour found that there was prejudice to the respondent because some of the employees responsible for the harassment are no longer employed by the respondent and one relevant witness is no longer in Australia.

43.                It seems to me that this indicates that his Honour approached the question of prejudice upon the basis that it was at large.  However, I do not think that was the test stated in the fourth principle in Phillips.  In my opinion, the test is whether there is prejudice occasioned by the delay in bringing the proceedings, that is to say, the 58 days following the expiration of the time limited by s 46PO(2).

44.                It follows in my opinion that his honour may have erred in his approach to the issue of prejudice and sufficient doubt is created to warrant leave on this ground.

45.                Moreover, it seems to me to be arguable that his Honour wrongly approached the question of the merits of the substantive application.  This was because he considered that the applicant had not established a prima facie case of vicarious liability.

46.                Once his Honour was satisfied that a prima facie case of sexual harassment was shown against the employees, the effect of s 106 of the SDA is that the employer is taken to have been liable for the actions unless it shows that it took all reasonable steps to prevent the employee from doing the acts in question.

47.                I reject the applicant’s submission that the acts complained of do not amount to sexual harassment within the meaning of s 28A of the SDA, or at least I do not consider that this point is so clear as to prevent a grant of leave to appeal.

Conclusion

48.                It follows that the application for leave to appeal ought to be allowed.

49.                Leave to appeal is to be limited to two questions.  First, whether the learned magistrate erred in his consideration of the test of whether the respondent was prejudiced by the delay. 

50.                The second question is whether the learned magistrate was in error in finding that the establishment of a prima facie case of sexual harassment by employees of the respondent was insufficient to establish a prima facie case against the respondent, having regard to the provisions of s106 of the SDA.

Associate:

Dated:              3 November 2005