FEDERAL COURT OF AUSTRALIA

Wu v University of Western Sydney [2011] FCA 1143

THE COURT ORDERS THAT:

1.    The application filed 28 April 2011 be dismissed.

2.    The applicant pay the respondent’s costs of the proceeding as agreed or taxed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

background

1    This is an application for an extension of time to institute proceedings under s 46PO of the Human Rights and Equal Opportunity Act 1986 (Cth) (the HREOC Act) (now the Australian Human Rights Commission Act 1986 (Cth)). By his originating process dated 28 April 2011 the applicant, Mr Xiao Qing Wu, alleges that he has been unlawfully discriminated against by the University of Western Sydney (the University). In essence Mr Wu claims that, during the period between July 2002 and September 2003, the University (through a number of its staff members) discriminated against him on the basis of his race. By an accompanying Form 5 application filed on the same date, Mr Wu claims compensation in the amount of $10 million and seeks orders that, inter alia, certain “Fail” grades be removed from his academic record and replaced with a “Pass”.

Uncontentious facts

2    Mr Wu was enrolled as a student at the University between March 2001 and July 2004.

3    During the autumn semester of 2002, Mr Wu was enrolled in the unit “Corporate Accounting Systems” (the accounting unit). The lecturer and coordinator of the accounting unit was Ms Dorothy Wood. The Head of the School of Accounting at the time was Professor Garry Tibbits.

4    On 7 July 2002, Professor Tibbits on behalf of the University wrote to Mr Wu to advise that an allegation of plagiarism had been made against him. The allegation related to a homework assignment for the accounting unit.

5    On or about 24 July 2002, Mr Wu received a final grade of “Incomplete” in respect of the accounting unit.

6    On 31 July 2002, Professor Tibbits met with Mr Wu to discuss the charge of plagiarism.

7    On 6 August 2002, Mr Wu emailed Ms Wood to enquire about the result of the homework assignment which had been the subject of the plagiarism charge. On 24 September 2002, Mr Wu wrote again to Ms Wood to ask how he might access the results of his assignment, and whether he had passed the accounting unit as a whole.

8    There followed a course of correspondence and a number of meetings between Mr Wu, Ms Wood and Professor Tibbits regarding Mr Wu’s final grade for the accounting unit, the results of his homework assignment and the results of his final examination.

9    Mr Wu’s final grade for the accounting unit remained recorded as “Incomplete” until, on or about 12 August 2003, it was amended to a “Fail”.

10    On 21 October 2003, Mr Wu filed a complaint with the Human Rights and Equal Opportunity Commission (the Commission) alleging that the University, through Ms Wood and Professor Tibbits, had discriminated against him on the basis of his race, because he is unable to speak fluent English, and because of his thick accent (the first Commission complaint). The first Commission complaint forms the basis of Mr Wu’s substantive application to this Court.

11    On 29 October 2003, Mr Wu also lodged a complaint against the University with the New South Wales Ombudsman (the Ombudsman). The complaint related to the results of Mr Wu’s final examination for the accounting unit and to the University’s alleged failure to formally advise Mr Wu that he had failed the unit. On 23 December 2003, having sought and received an initial response from the University, the Ombudsman wrote to Mr Wu to advise that it had decided not to investigate the complaint further.

12    On 15 January 2004, the Commission wrote to the University seeking information in respect of the first Commission complaint. The University responded, via its legal counsel, on 10 February 2004, attaching a statement from Ms Wood and a number of other documents.

13    On 8 July 2004, the President of the Commission terminated the first Commission complaint on the basis that it was lacking in substance and wrote to Mr Wu to advise him of the decision.

14    On 29 July 2004, Mr Wu applied to discontinue his studies at the University.

15    On 25 November 2004, Mr Wu set a fire in a classroom at the University’s Parramatta campus. Shortly afterward, Mr Wu presented himself at the Parramatta Police Station and informed police that he had started the fire. He was charged with the offence of maliciously damaging property. It was subsequently determined that Mr Wu was suffering from an episode of major depression at this time. In consequence, he was found not guilty of the charge by reason of mental illness. Mr Wu attributes his depressive episode to the University’s treatment of him.

16    On 6 December 2004, the University wrote to advise Mr Wu that he had been suspended pending the outcome of a Non-Academic Misconduct Investigation relating to the setting of the fire on University grounds. On 11 January 2005, the University wrote again to invite Mr Wu to attend a hearing of the Non-Academic Misconduct Committee to be held on 25 January 2005. Mr Wu did not respond to the invitation and did not attend the hearing. The outcome of the hearing was a recommendation that Mr Wu be permanently excluded from the University.

17    On 20 December 2004, Mr Wu made a second complaint to the Ombudsman. This complaint related to a unit called “Introductory Management Accounting” which Mr Wu had undertaken in the spring semester of 2001. Mr Wu had received a final grade of “Fail – Discontinued” for the unit, and had repeated it in 2002. On 12 January 2005, the Ombudsman wrote to Mr Wu to inform him that it had decided not to investigate this complaint.

18    On 3 February 2005, the University wrote to Mr Wu to advise him of the recommendation made by the Non-Academic Misconduct Committee. On 18 February 2005, pursuant to this recommendation, Mr Wu was expelled from the University and was permanently banned from returning to study there.

19    On 14 February 2005, Mr Wu made a third complaint to the Ombudsman. This complaint related to some of the same matters covered in the first Commission complaint. The Ombudsman sought a response from the University on 29 February 2005. On 15 September 2005, the Ombudsman wrote to Mr Wu to advise that it had again determined not to pursue a formal investigation.

20    On 1 February 2006, Mr Wu lodged a second complaint against the University with the Commission (the second Commission complaint). This complaint alleged that the University had discriminated against Mr Wu on the basis of his age, and that his human rights had been breached. On 6 March 2006, the Commission wrote to Mr Wu to inform him that it did not have jurisdiction to investigate the second Commission complaint.

21    Mr Wu was tried before the District Court on 8 and 9 August 2006. On 9 August 2006, he was found not guilty by reason of mental illness and an order was made for his conditional release. A medical report about Mr Wu dated 20 March 2006 confirmed that Mr Wu had been suffering from major depression at the time of the offence charged and for several months beforehand. It also confirmed that he was free from any symptoms of psychiatric abnormality at the time the report was prepared. Mr Wu was subsequently required to appear at the New South Wales Mental Health Review Tribunal (the Tribunal) on a six-monthly basis, and to continue receiving regular treatment at the Bankstown Community Mental Health Service.

22    On 27 April 2007, Mr Wu made an application under the Freedom of Information Act 1989 (NSW) for documents in the possession, custody or control of the University relating to his “personal affairs”, including documents that came into existence or were collected before, during or after his enrolment as a student. The University provided a number of documents to Mr Wu pursuant to this request. On 29 June 2007, Mr Wu applied for a review of the University’s decision not to grant access to certain further documents which Mr Wu identified. On 8 July 2007, the University wrote to Mr Wu explaining that no documents matching his description were in the University’s possession.

23    On 22 June 2009, following a case review on 26 May 2009, the Tribunal ordered Mr Wu’s unconditional release. The order took effect from 21 July 2009.

24    On 27 August 2009, Mr Wu was discharged as a patient of the Bankstown Community Mental Health Service.

25    On 28 April 2011, Mr Wu filed his substantive application with this Court. As noted, the application is based on the first Commission complaint.

Statutory provisions and applicable principles

26    There is no dispute between the parties that Mr Wu’s application, including his application for an extension of time, is governed by the HREOC Act as in force in July 2004 (when the first Commission complaint was terminated).

27    Section 46P(1) of the HREOC Act as in force at that time provided that a written complaint could be lodged with the Commission alleging unlawful discrimination.

28    “Unlawful discrimination” was defined in s 3 of the HREOC Act as including any acts, omissions or practices that were unlawful under (relevantly) Part II or IIA of the Racial Discrimination Act 1975 (Cth) (the RDA). Section 9(1) of the RDA, which forms (and in 2004 formed) part of Part II of the RDA, provides as follows:

It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

29    By s 9(2) of the RDA, a reference to a “human right or fundamental freedom” includes any right referred to in Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination, which forms the Schedule to the RDA. In oral submissions, the University accepted that Mr Wu’s application may be inferred to be based on the right to education, which is referred to in Article 5.

30    Section 13 of the RDA, which also forms (and in 2004 formed) part of Part II of the RDA, provides that it is unlawful for a person who supplies goods or services to the public or to any section of the public:

(a)    to refuse or fail on demand to supply those goods or services to another person; or

(b)    to refuse or fail on demand to supply those goods or services to another person except on less favourable terms or conditions than those upon or subject to which he or she would otherwise supply those goods or services;

by reason of the race, colour or national or ethnic origin of that other person.

31    Section 18A(1) of the RDA (headed “Vicarious liability”) provides (and in 2004 provided) that if an employee of a person does an act in connection with his or her duties as an employee, and the act would be unlawful under Part II if done by that person, the RDA applies as if the person had also done the act.

32    Section 46PH of the HREOC Act (as in force in July 2004) empowered the President of the Commission to terminate a complaint of unlawful discrimination made under s 46P on a number of grounds, including (relevantly) that the complaint was “trivial, vexatious, misconceived or lacking in substance”. Section 46PH(2) required that the President, if he or she decided to terminate a complaint, notify the complainant in writing of that decision and the reasons for it.

33    Section 46PO(1) of the HREOC Act provided that, if a complaint to the Commission had been terminated by the President under s 46PH(1) and notice had been given to the complainant under s 46PH(2), the complainant could make an application to this Court or the Federal Magistrates Court alleging unlawful discrimination by one or more of the respondents to the terminated complaint. Pursuant to s 46PO(2), an application under subsection (1) was required to be made within 28 days of the date of issue of the notice of termination or within such further time as the Court allowed. Section 46PO(3) further required that the unlawful discrimination alleged in the application arise out of the same or substantially the same acts, omissions or practices that were the subject of the terminated complaint.

34    As noted, Mr Wu made the first Commission complaint on 21 October 2003. The President notified Mr Wu of the termination of the complaint on 8 July 2004. Mr Wu’s application to this Court was filed on 28 April 2011 and is, accordingly, some seven years out of time.

35    The factors relevant to the discretion under s 46PO(2) to grant an extension of time to institute proceedings in this Court were set out by Cowdroy J in Ingram-Nader v Brinks Australia Pty Ltd (2006) 151 FCR 524; [2006] FCA 624 (Ingram-Nader) at [11]-[12] (citing McInnis FM in Phillips v Australian Girls’ Choir [2001] FMCA 109) 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 Client 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 [or her] 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 p 287).

5. The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic at p 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 p 417).

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

36    As the University submitted (citing Ferrus v Qantas Airways Ltd [2006] 155 IR 88; [2006] FCA 812 at [20]), these factors may be distilled to three basic considerations:

(1)    whether there is any (or any adequate) explanation for the delay in making the application;

(2)    whether any prejudice would be occasioned to the respondent if an extension of time were granted; and

(3)    whether the applicant has an arguable case.

37    In summarising the submissions put by Mr Wu and the University, it is convenient to deal with these three considerations in reverse order.

submissions

Submissions for Mr Wu

Arguable case

38    In support of his substantive application, Mr Wu set out (both in his affidavit of 24 April 2011 and in his oral submissions) a number of facts in addition to those summarised above. While some of these additional facts are not disputed by the University (and are supported by documents annexed to Mr Wu’s affidavit), there are others which the University does not accept. For present purposes it is sufficient to provide a brief summary of the relevant events as described by Mr Wu. These events, which must be inferred to form the basis of his claim of unlawful discrimination, can be divided into three broad groups.

39    The first group of events relates to advice provided to Mr Wu by Ms Wood in respect of the accounting unit. On 16 June 2002, Mr Wu sent an email to Ms Wood regarding a homework question set for the unit. The question required students to identify the final distribution to shareholders on liquidation of a company, in respect of which certain corporate details were provided. In his email, Mr Wu set out his proposed response to the question. On 18 June 2002, Ms Wood responded (via email) as follows: “Yes – you are correct”. According to Mr Wu, a very similar question formed part of the final examination for the accounting unit. Although Mr Wu answered the question using the same method approved by Ms Wood via email, he was marked as if his answer were wrong. Mr Wu claims that Ms Wood subsequently denied that she had advised him that his proposed answer to the homework question was correct. According to Mr Wu, the marks he lost for the exam question due to his reliance on Ms Wood’s advice contributed to his ultimately failing the accounting unit.

40    It appears to be Mr Wu’s case that Ms Wood deliberately provided him with incorrect advice and/or that, due to an ambiguity in the exam question, his response should have been (but was not) marked as correct. Mr Wu submitted that this constituted “double standards” on the part of the University in its treatment of students. In support of this submission, Mr Wu pointed to a letter from the Ombudsman to the Vice Chancellor of the University dated 15 September 2005. The letter was sent in response to the third complaint made to the Ombudsman by Mr Wu, which related (amongst other things) to the advice allegedly given by Ms Wood in relation to the homework question. The letter, as noted above, recorded that the Ombudsman had decided not to make Mr Wu’s complaint the subject of an investigation; however, it also indicated that the Ombudsman’s initial research suggested that, due to ambiguities in the company information provided in the homework question, “the answer provided by Mr Wu [was] as correct as that provided by the [U]niversity.” The Ombudsman recommended that, in respect of future homework exercises for the accounting unit, “care should be taken to avoid possible ambiguities of the type that appear to have occurred in this case.”

41    It must be inferred that it is Mr Wu’s case that Ms Wood’s alleged provision of inaccurate advice and/or the University’s failure to mark Mr Wu’s response to the exam question as correct was based on or by reason of his race.

42    The second group of events on which Mr Wu relies relates to the University’s alleged withholding of his final grade for the accounting unit, the results of his homework assignment, and the results of his final examination.

43    As noted, on 31 July 2002 Mr Wu met with Professor Tibbits to discuss an allegation of plagiarism in respect of a homework assignment for the accounting unit. According to Mr Wu, the allegation was unfounded and, at the end of the meeting, Professor Tibbits agreed to dismiss the charge. However, no written record of this decision was made. Also as noted, in late July 2002 Mr Wu received a final grade of “Incomplete” in respect of the accounting unit and, on 6 August 2002, sent an email to Ms Wood enquiring about the results of his homework assignment. According to Mr Wu, Ms Wood responded (via email) that she was unable to release these results until she had received a record of the outcome of the meeting with Professor Tibbits, who was holding Mr Wu’s assignment. Mr Wu’s evidence was that on 25 September 2002, following further correspondence with Ms Wood and Professor Tibbits (including his email of 24 September 2002, in which he also asked whether he had passed the accounting unit as a whole), he met with Ms Wood in her office. At that meeting, Ms Wood telephoned Professor Tibbits and obtained verbal confirmation that the plagiarism charge against Mr Wu had been dismissed. Mr Wu claims that, having received this confirmation, Ms Woods allowed Mr Wu to view his results for the final examination (but not for the homework assignment or the unit as a whole) on her computer screen. Noting that the mark was lower than he had anticipated, Mr Wu says that he asked to see his exam paper.

44    The following week, Mr Wu met with Ms Wood to run through the exam paper. According to Mr Wu, it was during this meeting that he identified the exam question which had been marked wrong and was similar to the homework question in respect of which he had received email advice from Ms Wood. Believing his solution to be correct (on the basis of Ms Wood’s advice), Mr Wu requested further assistance and was invited to meet with Ms Wood again the next week. At the same meeting, Ms Wood also showed Mr Wu the results of the homework assignment which had been the subject of the plagiarism charge. Mr Wu requested that the assignment be re-marked.

45    At their third meeting (in early October 2002), Mr Wu and Ms Wood again discussed the results of his final examination but were unable to reach agreement. Mr Wu requested that his exam paper also be re-marked.

46    In respect of all three meetings, Mr Wu alleges that Ms Wood was unhelpful, dismissive, and unwilling to show Mr Wu his homework assignment, his exam paper, or the marking criteria used for the final examination.

47    According to Mr Wu, in August 2002 (the beginning of the spring semester) – by which time Mr Wu had yet to receive a final grade for the accounting unit – he and other students were informed by a lecturer at the University that 40% of the students enrolled in the accounting unit had failed, but that the “passing standard” would be lowered so as to enable an additional 20% of students to pass.

48    From October 2002 onward, Mr Wu says he was in contact with the University’s Student Welfare Officer regarding his concern that he had yet to receive a final grade for the accounting unit. On 18 October 2002, Mr Wu lodged a formal complaint with the Student Welfare Officer.

49    On 8 November 2002, Both Mr Wu’s final exam paper and his homework assignment were sent to third parties (in the case of the exam paper, Professor Tibbits, and in the case of the homework assignment another University lecturer, Mr Simon Lenthen) for re-marking.

50    On 5 August 2003, the University’s Student Welfare Officer wrote to Professor Tibbits noting that Mr Wu’s result for the accounting unit was still recorded as “Incomplete”. According to Mr Wu, Professor Tibbits met with him the following day and advised him verbally that he had failed the unit. On 12 August 2003, Mr Wu was informed by the Student Welfare Officer that his result had been recorded as a “Fail”. A letter from the Ombudsman dated 23 December 2003 confirms that Mr Wu’s grade for the accounting unit was finalised on 12 August 2003.

51    Mr Wu claims that, between 8 November 2002 and 12 August 2003, he was never formally notified of the results of the re-marking process or of the alteration of his final grade from “Incomplete” to “Fail”. According to Mr Wu, throughout this period, repeated requests to Professor Tibbits to provide him with the results of the re-marking process went unanswered.

52    Sometime after 6 August 2003, Mr Wu contacted the University’s Student Hotline seeking to appeal the result of his final examination. An email from the Student Hotline dated 13 August 2003 advised that Mr Wu’s complaint had been referred to a Ms Virginia Furse for resolution. On 17 September 2003, Mr Wu received an email from the University’s Student Services Administrator indicating that Professor Tibbits had been contacted in respect of the complaint and considered the matter to be “closed”. The email also noted that the fourteen-day period for Mr Wu to appeal the results of his final examination had passed. A letter from the Ombudsman to the Vice Chancellor of the University dated 23 December 2003 (sent in response to Mr Wu’s first complaint to the Ombudsman) noted that students of the University have 14 days in which to seek a formal review of their grades, but are advised to address themselves informally to their markers before doing so. The Ombudsman noted that in Mr Wu’s case, given his ongoing discussions with Ms Wood and Professor Tibbits, “there was legitimate confusion… about when [Mr Wu] was eligible to seek a formal review”. The Ombudsman recommended that the University reconsider its procedures “with a view to ensuring that no student should lose his or her eligibility to request a formal review of their results due to lack of clarity in the statement of these review procedures.”

53    The “Fail” grade remained on Mr Wu’s academic record as at 21 February 2011.

54    On the basis of these events, Mr Wu alleges that:

(1)    From 31 July 2002 (the date of the meeting between Professor Tibbits and Mr Wu regarding the plagiarism charge) until late September 2002 (when Ms Wood first met with Mr Wu), Professor Tibbits deliberately withheld the fact that he had dismissed the charge of plagiarism against Mr Wu, with the consequence that Mr Wu did not receive a final grade for the accounting unit.

(2)    From late July 2002 (when Mr Wu’s final grade was recorded as “Incomplete”) until late September 2002 (when Ms Wood first met with Mr Wu), the University denied Mr Wu access to the results of his final examination and his homework assignment.

(3)    From 8 November 2002 (when Mr Wu’s final examination and homework assignment were sent for re-marking) until 6 August 2003 (when Professor Tibbits informed Mr Wu he had not passed the accounting unit), the University denied Mr Wu access to the results of the re-marking process (as well as his final grade for the unit).

(4)    By failing to include Mr Wu in the 20% of students whose final grades for the accounting unit were amended to a pass, the University denied Mr Wu the benefit of passing the unit.

(5)    By failing to notify Mr Wu in August 2003 that his final grade for the accounting unit had been amended from “Incomplete” to “Fail”, the University denied Mr Wu the opportunity to appeal the result of his final examination and so denied him the benefit of passing the accounting unit.

55    It is Mr Wu’s case that this conduct was based on or by reason of his race.

56    The third group of events on which Mr Wu relies relates to the conduct of other University employees who, according to Mr Wu, mocked or otherwise discriminated against him on the basis of his race and his accent. For example, Mr Wu claims that during the spring semester of 2001 a teacher at the University was in the habit of calling out Mr Wu’s name during class in a “sing-song” manner, leading other students to laugh at him (something the teacher did nothing to prevent). Mr Wu also claims that at the beginning of the 2002 autumn semester he forgot to bring a floppy disk to a class and asked whether he could take a spare from the teacher’s desk, offering to pay if required. According to Mr Wu, the teacher would not allow him to take or buy a disk but supplied one readily to a Caucasian student in the same class. Mr Wu further alleges that, on separate occasions, the teacher pretended not to hear his questions in class; shouted at him that he was a “liar” and a “cheater”; and was involved in fabricating the charge of plagiarism made against him.

Prejudice to the University

57    In his oral submissions, Mr Wu argued that the key witnesses required for the hearing of his application were limited to Professor Tibbits, Simon Lenthen (the independent marker of Mr Wu’s homework assignment), Angela Thomson (Manager of the University’s Legal Office), and Professor Janice Reid (the University’s Vice Chancellor). Mr Wu also maintained that, contrary to the University’s submissions, it remained in possession of the original documentation which would be required to assess his claim.

Explanation for delay in bringing proceeding

58    As noted, the first Commission complaint was terminated on 4 July 2004. As such, Mr Wu was required to bring an application in this Court no later than 1 August 2004.

59    Mr Wu submitted that his delay in doing so, both during the initial 28-day period and in the years that followed, was due to a combination of the mental health issues he experienced as a result of his dealings with the University and his difficulties in obtaining legal advice and assistance.

60    In respect of the 28-day period following the termination of the first Commission complaint, Mr Wu submitted that: – (i) the first Commission complaint records that from at least October 2003 (when the complaint was lodged) he had been experiencing symptoms including “disturbed day to day existence, eating and sleeping disorder, vomiting and gastric bouts caused by nerves”, (ii) these symptoms worsened as a consequence of the termination of the first Commission complaint, (iii) the University failed to offer him counselling or legal assistance, despite being under a duty to do so, (iv) he was not or was not fully aware of his legal rights in that “there was… no clear picture to guide [him] to take the legal action… in [the] Federal Court”, and (v) under these circumstances, he “did try to lodge [his] case to [sic] the [F]ederal Court as soon as possible”, but “owing to ill health [he] was unable to do so by [him]self without legal aid at the time”.

61    In respect of the ensuing period (between August 2004 and April 2011), Mr Wu relied on the following factors as demonstrating his continuing mental health issues: – (i) the setting of the fire on the University campus in November 2004, (ii) the report dated 20 March 2006, which concluded that “at the time of the alleged offence and for at least several months prior to that, [Mr Wu] was suffering from Major Depression”, (iii) the finding of the District Court that Mr Wu was not guilty of maliciously damaging property by reason of mental illness, (iv) the requirement between August 2006 (when he was provisionally released) and July 2009 (when he was unconditionally released) that Mr Wu attend six-monthly reviews before the Tribunal and continue to receive regular treatment at the Bankstown Community Mental Health Service, (v) his hospitalisation in 2007 for gastric problems related to stress, (vi) his further hospitalisation in May 2010, and (vii) the fact that he continues to see a private consultant psychiatrist every six months for assessment and medication.

62    Mr Wu also relied on the following circumstances as demonstrating the difficulties he encountered in obtaining legal advice and assistance during this period: – (i) his lack of awareness, prior to his trial before the District Court in August 2006, of the existence or availability of Legal Aid, (ii) his unsuccessful attempts in September 2006 and July 2007 to obtain assistance from Legal Aid in relation to his claims against the University, (iii) the termination by Gerard Malouf and Partners, on 21 November 2007, of their legal assistance to Mr Wu (which from mid-2007 had been provided on a “no win, no fee” basis), (iv) his further unsuccessful attempt to obtain assistance from Legal Aid in July 2010, and (v) various difficulties he experienced in filing his application with the Court in the absence of legal representation (for example, difficulties with the form required to accompany affidavits which resulted in his visiting the Registry once a week for five weeks).

63    In addition, Mr Wu submitted that at least some part of the delay between his unconditional release in July 2009 and the filing of his application with this Court in April 2011 was due to the fact that it had taken him the better part of a year (from July 2009 to July 2010) to compile a comprehensive written account (in English, which is not his native language) of his dealings with the University.

Submissions for the University

Arguable case

64    Although the University submitted that Mr Wu’s substantive application lacked merit, it did so recognising that a full assessment of the merit, or (in the University’s submission) lack of merit, of Mr Wu’s claims cannot be carried out given that the application is one for an extension of time and not a substantive determination of Mr Wu’s claims. Against this background, the University made three main points on the merits of Mr Wu’s case.

65    First, the University submitted that Mr Wu had not, in his written or oral submissions, identified with any particularity how the University’s alleged conduct could be said to constitute unlawful discrimination under s 9 or s 13 of the RDA. Insofar as Mr Wu’s claims are said to be based on treatment in respect of his accent, it noted that the recent decision in Philip v State of New South Wales [2011] FMCA 308 dismissed a claim of racial discrimination made on this basis.

66    Secondly, the University submitted that in any event there is no evidence before the Court (apart from Mr Wu’s own assertions) that the University’s dealings with him were based on or by reason of his race, accent or difficulties with English. To the contrary, the University contended that the available evidence supports the conclusion that it treated Mr Wu in accordance with the policies and procedures applicable to all students. In this regard, the University noted that the first Commission complaint was terminated under s 46PO(1)(c) of the HREOC Act on the basis that it was lacking in substance. This was said to be particularly relevant in circumstances where such additional material as is presently before the Court is “largely irrelevant” to Mr Wu’s substantive application.

67    Thirdly, the University noted that given the terms of s 46PO(3) of the HREOC Act (which, as noted, required that the unlawful discrimination alleged in the application arise out of the same or substantially the same acts, omissions or practices that were the subject of the terminated complaint), Mr Wu cannot now rely on conduct which occurred after 21 October 2003 (the date of the first Commission complaint) in support of his application (citing Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573; [2000] FCA 1531 at [28], [30] and [36]).

Prejudice to the University

68    The University submitted that, given the lengthy gap (approximately eight years) between the events of which Mr Wu complains and the filing of his substantive application, it would be prejudiced if Mr Wu were allowed to proceed with his claim. It relied in this regard on an affidavit of Natasha Maiolo, a solicitor employed by the University, affirmed 4 August 2011.

69    First, the University claimed that it no longer had access to complete records of the events on which Mr Wu’s substantive application is based. Ms Maiolo in her affidavit records her view that the University’s archival files do not contain a complete record of its dealings with Mr Wu, and that the University no longer retains Mr Wu’s entire student record. She notes, however, that her enquiries showed that several further files concerning Mr Wu (the contents of which she had not reviewed at the time of affirming the affidavit) were held offsite.

70    Secondly, the University said that approximately seven of the individuals named in Mr Wu’s application, including Ms Wood, are no longer employed by the University. Ms Maiolo’s affidavit records the inquiries on which she based this conclusion.

71    Finally, the University submitted that a number of the students named in Mr Wu’s application are unlikely still to be enrolled at the University. Ms Maiolo’s affidavit notes that precise identification of these students has not been possible, as Mr Wu refers to them only by their first names. However, as the Bachelor of Commerce (Accounting) in which Mr Wu was enrolled takes three years to complete as a full-time student, Ms Maiolo’s evidence is that it is likely that most if not all of them would by now have ceased to be students of the University.

Explanation for delay in bringing proceeding

72    The University submitted that Mr Wu has not provided an adequate explanation for his delay in bringing proceedings in this Court.

73    In respect of the 28-day period following the termination of the first Commission complaint, the University noted that the letter of 8 July 2004 by which the President notified Mr Wu of the termination expressly stated that he could make an application to the Federal Court or the Federal Magistrates Court to hear his allegations of unlawful discrimination; that information about the process could be obtained from a Federal Court Registry (contact details for which were provided); and that any such application must be made within 28 days. As such, the University submitted that Mr Wu cannot rely on lack of awareness of his legal rights as a reason for his failure to file an application within the prescribed period. The University further submitted that there was no evidence before the Court to suggest that Mr Wu’s mental health during this period rendered him unable to commence proceedings in this Court.

74    In respect of the ensuing period between August 2004 and April 2011, the University accepted that Mr Wu had been suffering from depression from around August 2006 to 21 July 2009. However, it maintained that this alone did not constitute an acceptable explanation for Mr Wu’s failure to make his application during this period. As noted above, the University submitted that Mr Wu was made aware of his right to institute proceedings in this Court by the Commission’s letter of 8 July 2004. The University also pointed out that, on Mr Wu’s own evidence, he wrote regularly to the Commission, the Ombudsman and a range of other persons and organisations between July 2004 and January 2005 about his dispute with the University. The University submitted that this showed Mr Wu was not only aware of but also “capable of advancing” his rights at this time.

75    In addition, the University pointed out that Mr Wu was again informed of his legal rights on 6 March 2006, when the Commission wrote to him to indicate it had no jurisdiction to inquire into the second Commission complaint. This letter noted the existence of the first Commission complaint and stated that, if Mr Wu wished to pursue it, he “should contact the Federal Court of Australia or the Federal Magistrates Court about making a late application.” In addition, the University noted that the medical report of 20 March 2006 concluded that (as at 8 March 2006) Mr Wu was “essentially free from symptoms”, would “have no difficulty in following court proceedings”, and would be “capable of… instructing his legal representatives”. The University further pointed out that on 8 June 2007 it received a letter from Gerard Malouf and Partners regarding a potential personal injury claim by Mr Wu. It submitted that this letter demonstrated that Mr Wu “was seeking legal advice about the very subject-matter of the discrimination complaint” at that time, and that this was inconsistent with any submission that his mental health prevented him from seeking to institute proceedings in this Court.

76    The University placed particular reliance on the period of delay between Mr Wu’s unconditional release on 21 July 2009 and the making of the present application on 28 April 2011. It pointed in particular to the Tribunal’s reasons for decision of 22 June 2009, which noted that Mr Wu had “demonstrated stable mental health since well before coming before the Court”, that the Community Forensic Mental Health Service had “recommended for some time that he be considered for unconditional release”, and that Mr Wu’s consulting psychiatrist considered that he displayed “no symptoms of mental illness or of any impairment [and] no clinical need for additional forms of therapy”. While the University accepted that it had taken Mr Wu the better part of a year from July 2009 to compose a written account of his experiences and that he had been hospitalised in May 2010 for another ailment, it submitted that this could not constitute an adequate explanation for his failure to bring an application in circumstances where he had been repeatedly notified of his legal rights, had for some time been demonstrably capable of taking steps to seek legal redress for his complaints, and enjoyed stable mental health.

discussion

Arguable case

77    It is unnecessary for present purposes to discuss at any length the merits of Mr Wu’s substantive application. It is sufficient to note that, in order for Mr Wu to make out his claim of unlawful discrimination on the basis of race, he would need to show that the University’s conduct satisfied the criteria of either s 9 or s 13 of the RDA.

78    As the University submitted, in respect of s 9 Mr Wu would need to: – (i) identify the relevant human right (for example, the right to education), (ii) identify the relevant distinction, exclusion, restriction or preference, (iii) demonstrate that the distinction, exclusion, restriction or preference was “based on” his race, and (iv) demonstrate that the effect of that distinction, exclusion, restriction or preference was to nullify or impair the recognition, enjoyment or exercise on an equal footing of the relevant right.

79    In respect of s  13, Mr Wu would need to: – (i) identify the relevant goods or services, (ii) demonstrate a refusal or failure to supply those goods or services on demand (either at all, or except on less favourable terms than those applicable to other recipients), and (iii) demonstrate that this refusal or failure was “by reason of” his race.

80    The evidence before the Court reflects a protracted period of negotiations between Mr Wu, Professor Tibbits and Ms Wood regarding the results of Mr Wu’s homework assignment and of his final examination. It suggests that Mr Wu did not receive a final grade for the accounting unit until some 13 months after his results for other subjects became available. It also establishes that Mr Wu has been deeply affected by his dealings with the University, and genuinely believes that he has been unfairly dealt with by the University and a number of its employees.

81    This said, there is little if any evidence before the Court to suggest that, in respect of either of the first two groups of events on which Mr Wu relies, the University’s conduct was based on Mr Wu’s race. While the third group of events does appear, at least on Mr Wu’s account, to be referable to his race (or at least to his accent and difficulties with English), there has been no exploration of how these events might satisfy the other elements of ss 9 or 13 of the RDA as set out above.

82    Despite these difficulties, I will assume in Mr Wu’s favour for the purposes of the following discussion that the evidence founds at least an arguable case of unlawful discrimination.

Prejudice to the University

83    The question of prejudice to the University in this case is closely bound up with Mr Wu’s delay in making his application. As noted above, some eight years have passed since the events of which Mr Wu complains. As a result, I accept the University’s submission that its documentary records are no longer complete in respect of its dealings with Mr Wu. I also accept its submissions regarding the difficulty of locating potential witnesses who are no longer employees or students of the University – although I note that this is as likely to prejudice Mr Wu’s case as the University’s. Under these circumstances, I consider that the University would suffer a not insubstantial degree of prejudice if Mr Wu were permitted to make an application so far out of time.

Explanation for delay in bringing proceeding

84    In assessing whether Mr Wu has provided an acceptable explanation for his delay in bringing the present application, it is possible to identify three key periods to which different considerations are applicable. The first is the 28-day period immediately following the termination of the first Commission complaint on 4 July 2004, during which Mr Wu could have filed an application in this Court without the need for leave. The second runs from the end of this period until the order for Mr Wu’s unconditional release made by the Tribunal on 22 June 2009. The third period runs from the date of Mr Wu’s unconditional release to the filing of his substantive application on 28 April 2011.

85    With regard to the first period, I accept that Mr Wu was made aware of his legal rights by the Commission’s letter of 4 July 2004. However, I do not accept the University’s submission that there is no evidence to suggest that Mr Wu’s mental health at this time affected his ability to exercise those rights. The first Commission complaint, in which Mr Wu details a number of physical and psychological symptoms, supports the conclusion that Mr Wu was already suffering from the depressive illness which led to the setting of the fire at the University on 24 November 2004. The medical report, which concludes that Mr Wu was suffering from depression for “at least several months prior” to the incident at the University, also supports this conclusion. As such, were this the only relevant period of delay, I would be prepared to accept that Mr Wu had provided an acceptable explanation for his failure to bring a claim.

86    In respect of this first period it is also appropriate to record that, while Mr Wu contended that the University ought to have provided him with counselling and with legal advice in relation to his complaint, there is no evidence before me to suggest that such a request was made of the University at the relevant time; nor were any specific reasons given for the existence of a duty on the part of the University to offer to provide these services. It is also not apparent why the University knew or should have known of Mr Wu’s apparently deteriorating psychological condition during this time.

87    In respect of the second period of delay, I accept that from around September 2004 until around March 2006 Mr Wu continued to suffer from depression which affected his functioning. However, and as the University submitted, it is also apparent that by 8 March 2006 Mr Wu was “essentially free from symptoms” of mental illness and was capable of following and giving instructions in relation to court proceedings. While these observations were made in respect of Mr Wu’s fitness to stand trial, they are also relevant to his capacity to make an application to this Court or the Federal Magistrates Court in relation to his complaint against the University. As the University noted, Mr Wu was again notified of his right to do so by the Commission’s letter of 6 March 2006. Furthermore, and as the University submitted, Mr Wu’s ability to pursue legal avenues of redress against the University is demonstrated by his own evidence that in mid-2007 he instructed Gerard Malouf and Partners to act for him in respect of a potential personal injury claim. Action taken by an applicant other than by making an application to the Court is relevant in assessing the adequacy of an explanation for delay: Ingram-Nader at [11]. As such, it is less than clear that Mr Wu has established an acceptable reason for his failure to bring proceedings in this Court in the period between March 2006 and July 2009.

88    It is true that, during this period, Mr Wu was still required to appear regularly before the Tribunal and continued to receive regular treatment at the Bankstown Community Mental Health Service. It may therefore be argued that his mental health remained an issue capable of affecting his capacity to make an application to this Court. However, even if this is accepted as an explanation for his failure to do so, it cannot explain the final period of delay between June 2009 and April 2011.

89    As noted, the order for Mr Wu’s unconditional release was made by the Tribunal on 22 June 2009. In its reasons for decision, as the University identified, the Tribunal clearly stated that Mr Wu’s mental health was stable (and had been so for some time). Accordingly, from at least 22 June 2009 Mr Wu enjoyed reasonable mental health and, for the reasons given above, was aware of his right to make an application to this Court in relation to his complaint against the University. While I accept that it took Mr Wu a long time to compose a written account of his experiences, I do not accept that this constitutes an adequate explanation for his failure to make an application in circumstances where the events giving rise to his claim had already been the subject of a relatively large number of written complaints. More importantly, even on Mr Wu’s own evidence, the composition of this written account does not explain the additional ten-month delay between June 2010 and the filing of Mr Wu’s application on 28 April 2011. As such, I do not accept that Mr Wu has provided an acceptable explanation of this final period of delay in instituting proceedings in this Court.

Conclusions

90     The cases relied on by the University make it clear that an adequate explanation for delay is not an essential precondition to the grant of an extension of time under s 46PO(2) of the HREOC Act: Ingram-Nader at [11]. This may be accepted. However, the authorities also establish that the Court will not grant an extension unless “positively satisfied that it is proper to do so”: Ingram-Nader at [11]. In all the circumstances of the present case, I cannot be so satisfied. The total delay in bringing proceedings in this Court is some seven years. For at least the past two years, if not longer, Mr Wu has been aware of his legal rights in circumstances where there is no evidence that he was impeded by his mental health from exercising them. Despite this, no application to this Court was made until 28 April 2011. Even if all Mr Wu’s submissions are accepted, no explanation for delay has been provided in respect of the ten-month period between June 2010 and April 2011. Furthermore, if Mr Wu’s claim were allowed to proceed, the long overall period of delay would result in prejudice to both the University and the conduct of the proceeding generally. Under these circumstances, even taking the merits of Mr Wu’s substantive application at their highest, I am not satisfied that an extension of time should be granted. The application dated 28 April 2011 should therefore be dismissed with costs.

Associate:

Dated:    17 October 2011