FEDERAL COURT OF AUSTRALIA

Joyce v St George Bank Ltd [2006] FCA 257

PETER JOYCE v ST GEORGE BANK LTD

NSD 2463 of 2005

BENNETT J

10 MARCH 2006

SYDNEY

THE COURT:

1.      Grants an extension of time in which to file a notice of appeal from the order of the Federal Magistrate made on 23 June 2005.

2.      Directs the applicant to file the notice of appeal within 21 days.

3.      Directs the applicant to serve the notice of appeal as filed on the solicitors for the respondent.

4.      Makes no order as to costs.

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

REASONS FOR JUDGMENT

1                     In a decision dated 23 June 2005 Federal Magistrate Driver considered an application under section 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) alleging discrimination contrary to the Disability Discrimination Act 1992 (Cth). 

2                     During the course of the hearing an application was made to his Honour for summary judgment.  It would appear from his Honour's reasons that evidence was filed by the applicant, Mr Joyce and that he was cross-examined.  Certain documents were put to Mr Joyce in the course of his cross-examination and they were admitted into evidence.  Certain other documents similarly seem to have been admitted into evidence during the course of cross-examination. The respondent then chose to call no evidence. 

3                     His Honour concluded at [19] that there was nothing in the documentary evidence to suggest or establish that Mr Joyce's taking of sick leave was in any way connected to his suspension of duty and his subsequent termination of employment.  Driver FM considered the evidence that Mr Joyce had adduced. However, his Honour concluded at [21] that there was no possibility of Mr Joyce establishing that he was suspended or dismissed from his employment because he took sick leave because of his medical condition.  His Honour concluded that there was no chance of Mr Joyce establishing either of the matters necessary for his case and that “his application is doomed.  It must necessarily fail.”  Accordingly, his Honour dismissed the application as disclosing no reasonable cause of action. 

4                     Mr Joyce applied for leave to appeal the decision of Driver FM.  That matter came before a Judge of this Court who delivered reasons on 5 July 2005.  Her Honour set out the background of the case and the principles applicable to the dismissal of an application summarily.  At [18], her Honour noted that the Federal Magistrate's comments about the documentary evidence were in part a reference to documents that were exhibited to an affidavit that had been filed but not read by the respondent.  Her Honour then said:

Those documents might, in his Honour’s words, ‘point to concerns’ that the Bank had about the applicant’s behaviour but, in my view it is at least arguable that his Honour was in error in denying Mr Joyce the opportunity to hear the respondent’s evidence and cross-examine witnesses for the respondent.  I am certainly of the view that there is sufficient doubt attending his Honour’s decision to dismiss the application summarily to warrant the issue being considered on appeal.

Accordingly, her Honour granted Mr Joyce leave to appeal.  In looking at her Honour's reasons and the detail of them I am not prepared to conclude that her Honour failed to appreciate that the documentary material had been tendered and that no evidence had been called in the respondent's case. 

5                     In support of his application before her Honour, Mr Joyce filed a draft notice of appeal.  The grounds in that draft notice of appeal were that there had been a denial of natural justice, that all of the evidence was not considered and that evidence from the Human Rights and Equal Opportunity Commission (‘the Commission’) was not given under oath.  The draft notice of appeal also contained an assertion that the respondent misled the Commission.  Those matters do not seem to have been the subject of detailed consideration nor, indeed, do I know whether they were specifically advanced in submissions before her Honour. 

6                     In any event, Mr Joyce did not file a notice of appeal in time.  Accordingly, it has been necessary for him to approach the Court for an extension of time in which to file the notice of appeal.  I am satisfied from an affidavit that was filed in support of this application that Mr Joyce was unaware of the need separately to file a notice of appeal subsequent to her Honour's decision.  To that extent, an explanation of his failure to comply with the appropriate course has been provided.  It is also the case that, apart from the passage of time since her Honour's reasons and the fact that this appeal will still be current, the respondent could point to no specific prejudice arising from Mr Joyce's delay in filing the notice of appeal.

7                     Mr Harris, who appears for the respondent, submits that as this is a fresh application for an extension of time, the court should consider afresh Mr Joyce's prospects of successfully prosecuting his appeal (WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [9]).  It has been put by Mr Harris that the basis for the previous extension of time was that Mr Joyce should have had the opportunity to hear the respondent's evidence and to cross-examine witnesses.  He submits that that could not have occurred as no such evidence was called.

8                     Inherent in Mr Harris’ submission is the fact that the application before the Federal Magistrate was a summary judgment application to be determined on the basis of the applicant's own case and not in reliance upon evidence of the respondent.  This may lead to some difficulty in comprehending precisely what was meant by her Honour in [18].  The difficulty for Mr Harris is that no additional matter can really be put in response to this application that was not the subject of consideration by the Judge who heard the first application for an extension of time.  I can only assume that her Honour fully considered all of the materials before her and that the matter set out in [18] referred to submissions that were then made that were not clearly made by Mr Joyce in this application.

9                     As her Honour has fully considered the matter, I have some difficulty in coming to a conclusion different to that reached on the earlier occasion.  I do note that her Honour's words were that it was “at least arguable that the Federal Magistrate was in error”.  It seems to me in all the circumstances I should not dissent from her Honour's conclusion.  Accordingly, as there has been an explanation for the delay, I grant to Mr Joyce an extension of time in which to file his notice of appeal.

10                  I extend the time in which the applicant is to file the notice of appeal to 21 days from today's date.  I direct that the applicant serve a copy of the notice of appeal as filed on the solicitors for St George Bank.  I note that the respondent does not seek costs.

Associate:

Dated:              10 March 2006

The Applicant appeared in person.