FEDERAL COURT OF AUSTRALIA

L v Commonwealth of Australia [2009] FCA 4

L v COMMONWEALTH OF AUSTRALIA, THE COMMONWEALTH OF AUSTRALIA, THE NATIONAL CONVENOR, THE SOCIAL SECURITY APPEALS TRIBUNAL, THE SECRETARY, THE DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS, THE GENERAL MANAGER, CRS AUSTRALIA, THE STATE OF NEW SOUTH WALES, ANNETTE O'NEILL, STEPHEN HODGES, JULIAN MILLAR and AMANDA MACDONALD

NSD 843 of 2008

STONE J

9 JANUARY 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  Leave to appeal be refused.

2.                  The application be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                                             This is an application for leave to appeal from a decision of Cameron FM refusing the applicant leave to commence proceedings out of time; L v Commonwealth of Australia [2008] FMCA 658.  His Honour also refused to join the New South Wales Guardianship Tribunal in the proceeding.

Background

2                                             The proceeding before the Federal Magistrate arose from the termination by the Human Rights and Equal Opportunity Commission, now known simply as the Human Rights Commission, (the Commission) of the applicant’s complaints against the Social Security Appeals Tribunal and others.  The Commission’s notice of termination was dated 19 January 2004.

3                                             The application to the Federal Magistrates Court was made on 6 November 2006 more than 2 years outside the 28 day period provided under s 46PO(2) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (HREOC Act).  As his Honour’s decision was interlocutory the applicant may only appeal against that decision with the leave of the Court.

4                                             Apart from the seventh respondent who has entered a substituting appearance, the respondents oppose the grant of leave.  In the alternative, assuming that leave to appeal is given, they seek security in the amount of $10,000 for the costs of the first to fourth, sixth, eighth and ninth respondents and in the amount of $12,000 in respect of the costs of the fifth respondent.  As I have concluded that leave to appeal must be refused it is not necessary to consider the issue of security for costs further.

5                                             The applicant attempted to argue that his Honour’s decision was final, not interlocutory, and therefore leave to appeal is not required.  That submission cannot be sustained.  Although his Honour discussed other aspects of the case put by the applicant, his decision was independently grounded on the delay in commencing the proceeding and not on any final determination of the applicant’s claims.  It was clearly an interlocutory decision and leave to appeal from it is required; s 24(1A) Federal Court of Australia Act 1976 (Cth).

The third, fourth and fifth respondents

6                                             Under s 46PO of the HREOC Act, an application for review of the decision contained in the notice of termination issued on 19 January 2004 could only be brought against respondents to the complaint terminated by that notice.  The Federal Magistrate decided that the fifth respondent, the State of New South Wales was not a respondent to that complaint.  His Honour’s reasons are given in [30] of his judgment as follows:

As to the fifth respondent, the State of NSW, the Commission had declined to investigate the applicant’s complaint against the NSW Department of Health by a separate decision prior to the 9 January 2004 decision …  The applicant has submitted that the fifth respondent, in the form of the New South Wales Department of Health, was a respondent to the terminated complaint of 19 January 2004 on the basis that the parameters of the complaint included but were not limited to those set out in the notice of termination and that reference can be had to antecedent correspondence to identify the true terms of the complaint: Hollingdale v Northern Rivers Area Health Service.  While it is true that a degree of flexibility is appropriate when identifying the scope of a complaint to the Commission, the issue here is not one of the application of s.46PO(3) and whether the proceedings in this Court allege discrimination the same or the same in substance as the complaint to the Commission, which is what was considered in Hollingdale v Northern Rivers Area Health Service. Here the question is the application of s.46PO(1) and whether the respondents to these proceedings are the same as the respondents to the complaint terminated by the Commission. As noted above, the evidence demonstrates that it was in its letter of 24 November 2003 that the Commission advised that it did not accept as a complaint that part of the applicant’s correspondence referring to the NSW Department of Health.

7                                             His Honour added that the notice of termination clearly related to the Social Security Appeals Tribunal and its officers and not to the NSW Department of Health or to the State of NSW. 

8                                             In relation to the third and fourth respondents the Federal Magistrate came to the same conclusion, namely that they were not respondents to the complaints referred to in the notice of termination.  His Honour observed that the complaints made against the fourth respondent “were not considered by the Commission to have been proper complaints, were not entertained by it and were amongst the complaints remitted [in a separate proceeding] by Driver FM to the Commission for investigation according to law”; [2008] FMCA at [28].

9                                             As to the third respondent his Honour relied on the applicant’s own testimony that at the relevant time she was not aware that the Disability Services Act 1986 (Cth) was administered by the third respondent’s department and therefore did not mention the third respondent in the complaint.

10                                          In my view his Honour’s conclusion that the third, fourth and fifth respondents were not respondents to the terminated complaint was correct on this point for the reasons he gave.  It follows that an appeal in relation to this aspect of his Honour’s decision would be futile and leave to appeal should be denied.

The first, second, sixth, eighth and ninth respondents

11                                          In relation to the remaining respondents, the applicant’s evidence was that she was subjected to unlawful sex discrimination, sexual harassment, disability discrimination in employment, disability discrimination in the provision of the Commonwealth programs, disability discrimination in the provision of services, and victimisation under the Sex Discrimination Act 1984 (Cth) and/or the Disability Discrimination Act 1922 (Cth).

12                                          His Honour noted at [39] that the applicant’s case was presented in a “disorganised fashion” that made it difficult to link the evidence to the particular complaints.  Having considered the complaints his Honour concluded at [65] – [66]:

I am of the view that the applicant’s allegations are based on far-fetched conclusions drawn from events and circumstances which could not, on the evidence presented by the applicant, arguably support those conclusions. 

I find that the applicant does not have an arguable case against the first, second, sixth, seventh, eighth or ninth respondents based on the matters alleged in her application. In this regard it must be kept in mind that the application before the Court is one seeking leave to bring the application out of time. It is not an application for summary dismissal such as was considered in Rana v University of South Australia [2004] FCA 559.

13                                          In the exercise of his discretion his Honour dismissed the application.  In my view his conclusion was fairly based on a careful consideration of the applicant’s evidence and submissions.  Ms Watson, who appeared for the respondents, other than the fifth and seventh respondents, submitted in her written outline of submissions:

There is nothing in the judgment to support a proposition that his Honour miscarried in exercising his discretion to refuse to grant an extension of time.  His Honour’s exercise of discretion is only reviewable by this Court it it is affected by an error, such as acting upon a wrong principle, being guided by an extraneous or irrelevant consideration, a mistake of fact or a failure to take a material consideration into account.  No such error is evident.

In the notice of appeal, the appellant makes general allegations of breach of procedural fairness, when in truth, she disputes the findings or inferences drawn by the Federal Magistrate from her own evidence.  The appellant’s evidence was extensively considered by the Federal Magistrate, however, he found that the assertions and inferences drawn by her in relation to events which had occurred during her employment with the Social Security Appeals Tribunal were unsupported and not sustainable.

The affidavit filed by the appellant in support of the application for leave to appeal, if anything, only supports the findings of the Federal Magistrate that the appellant’s case is based on unsupported assertions and conclusions which are not reasonably open to draw.

14                                          I accept these submissions. In my view an appeal from the Federal Magistrate’s decision would be bound to fail and therefore leave to appeal must be refused.  The application must be dismissed with costs.

Associate:

Dated:         9 January 2009