FEDERAL COURT OF AUSTRALIA

Amponsem v Laundy (Exhibition) Pty Ltd [2014] FCA 94

THE COURT ORDERS THAT:

1.    The application for extension of time to apply for leave to appeal be dismissed.

2.    The applicant pay the costs of the first and second respondents as agreed or assessed in default of agreement.

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

REASONS FOR JUDGMENT

1    This is an application for extension of time and leave to appeal in relation to a decision of Judge Lloyd-Jones of the Federal Circuit Court of Australia delivered on 29 November 2013. The primary judge refused an application for extension of time filed on 16 July 2012: Amponsem v Laundy (Exhibition) Pty Ltd & Anor [2013] FCCA 1982.

2    Mr Amponsem’s application to the Federal Circuit Court under s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) against Laundy (Exhibition) Pty Ltd, the first respondent (Laundy), and Mr George Poulos, the second respondent (Mr Poulos) related to alleged unlawful discrimination. The type of discrimination alleged is racial discrimination under the Racial Discrimination Act 1975 (Cth) (Racial Discrimination Act). A notice of termination of Mr Amponsem’s complaint was issued by a delegate of the President of the Australian Human Rights Commission (AHRC) on 28 March 2012 on the basis that there was no reasonable prospect of the matter being settled by conciliation in the AHRC.

3    Under s 46PO(2) of the AHRC Act, an application to the Federal Circuit Court or this Court alleging unlawful discrimination must be made within 60 days after the date of issue of the notice of termination or such further time as the court allows. The application was therefore 50 days out of time. Mr Amponsem was self-represented at the hearing in the court below. The first and second respondents were represented by counsel. No written submissions were made.

4    The primary judge described the background to Mr Amponsem’s application to the Federal Circuit Court at [6]-[7] and the relief sought at [2] respectively as follows:

The first respondent, Laundy (Exhibition) Ltd operates a number of hotels within Australia, including the North Wollongong Hotel (the “Hotel”), which it operated between 2002 and 2 July 2012. The applicant was employed at the North Wollongong Hotel as head chef between approximately March 2008 and March 2011, when his employment was terminated. The second respondent, George Poulos, is the regional executive of the Laundy Hotel Group. The relationship between the Laundy Hotel Group and Laundy (Exhibition) Pty Ltd is unclear, however, for the purposes of these proceedings they will be taken to be the same corporation (“Laundy”).

The applicant alleged in his complaint to the AHRC that he was discriminated against because of his race/colour. The alleged incident took place on 10 March 2011 and has been described by the applicant as:

…[The second respondent] held a staff meeting with the kitchen staff of the [Hotel] while [the applicant] was on suspension. [H]e asked the staff how they were treated by me. …[The second respondent] went on to say that this is Australia not Africa, and that there are laws. [The second respondent] than (sic) went on to say that because the white man came to Africa to treat them as slaves does not mean that [the applicant] can come here and treat white people in the same way, and that [the applicant] was doing this because of the way [the applicant] was treated in Africa.

The applicant stated that the alleged discrimination degraded him and has since made him feel uncomfortable in any working environment. He stated that he sought justice against the second respondent as the purported behaviour was disgusting, not only as an adult, but as a leader.

…

The Application to this [Federal Circuit] Court seeks the following orders:

    1.    An apology.

    2.    For George Poulos to admit that he said that.

   3.    Also for George Poulos to be removed from the position that he holds.

    4.    Mental & financial anguish which they have caused me.

5    I note that on 2 July 2012, the North Wollongong Hotel changed ownership.

6    Leave to appeal the primary judge’s decision is required because it is an interlocutory decision. An extension of time is required because the application to this Court was filed on 9 January 2014 and the judgment of the primary judge was pronounced on 29 November 2013; an application for leave to appeal in accordance with r 35.13 of the Federal Court Rules 2011 (Cth) (Rules) must be filed within 14 days after judgment is pronounced or an order is made.

7    The principles relevant to the grant of an application for extension of time are set out by Collier J in SZQBT v Minister for Immigration and Citizenship [2011] FCA 1281 at [15] relying on Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; [1984] FCA 176 per Wilcox J at [15]. In summary the relevant factors are:

(a)    Whether the applicant has provided an acceptable explanation for the delay in lodging the application;

(b)    Whether the respondent would suffer prejudice in light of the delay should an extension of time to lodge the application be granted; and

(c)    The merits of the substantive application.

8    In this case the substantive application is the application for leave to appeal from the primary judge’s decision, which is itself an interlocutory decision. In accordance with the decision of the Full Court in DÉcor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, the tests are:

(a)    Is the primary judge’s decision attended with sufficient doubt to warrant it being reconsidered; and

(b)        Will substantial injustice result if leave is refused?

9    The grounds of appeal in the draft notice of appeal filed by the applicant are (errors in the original):

Grounds of appeal

1.    The Laundy’s ability to defend the claim lodged by me due to the sale of the North Wollongong Hotel, some of the employees still work there and I would still be able to call any other witnesses that they are finding hard to find.

2.    I sent the court documents in on time, when I did not hear anything from the courts I called and they told me to send it again. My wife assisted me in doing the documents and she dated the documents with the same date of the originals because that is what she thought she had to do. I did not know this until faced with it in court. Australia Post did say that the courts received them, and parts of the original documents were in the court file, if part was there where was the rest?

3.    I have very little knowledge about court procedures, what I go off is what the register tells me, or when I did file in the Anit-discrimination board they assisted me with what I should do next.

10    Mr Amponsem appeared at the hearing of his application in this Court and the respondents were represented by counsel. Mr Amponsem read his two affidavits sworn on 8 January 2014 and 6 February 2014 respectively. Both Mr Amponsem and the respondents provided written submissions.

Substantial merits

Is the primary judge’s decision attended with sufficient doubt?

11    The primary judge applied the correct test in relation to the considerations relevant to the grant of an extension of time under s 46PO of the AHRC Act. At [49] of his reasons, the primary judge sets out the considerations expressed by Collier J in Ferrus v Qantas Airways Ltd (2006) 155 IR 88; [2006] FCA 812 at [19] and [20], which have commonly been accepted in this Court as the relevant considerations. Put briefly they are: (1) the explanation for delay; (2) any prejudice to the respondent; and (3) whether the applicant has an arguable case.

Ground 1

12    The respondents submit that the primary judge accepted their unchallenged evidence that they would be prejudiced by the difficulty of locating many of the 11 members of staff who attended the meeting at which the statement is alleged to have been made by Mr Poulos. Mr Poulos remains employed by the first respondent. The primary judge accepted these submissions: [22]-[25] and [58]. I accept the respondents’ submission that Mr Amponsem’s claim to be able to locate former staff members to partially remedy that prejudice does not reveal error by the primary judge.

Ground 2

13    This ground seeks to re-agitate Mr Amponsem’s assertion that the document he posted to the Federal Circuit Court Registry (Registry) on 24 May 2012 was an application under s 46PO of the AHRC Act in appropriate form. His affidavit of 6 February 2014 annexes copies of “Customer Commitment” correspondence with Australia Post which demonstrates that an item bearing reference number 049467812092 mailed by Mr Amponsem on 24 May 2012 was delivered to the Registry on 25 May 2012. This evidence does not advance Mr Amponsem’s cause. The trial judge considered evidence of: (1) a copy of the Registry’s tracking diary (this Court and the Federal Circuit Court sharing a registry), (2) inspection by the respondents of a file maintained by the Federal Court in relation to fair work proceedings instituted against the first respondent by Mr Amponsem for recovery of allegedly underpaid annual leave payments; that file included the notice of termination from the AHRC dated 28 March 2012, (3) the failure to pay filing fees in May 2012, (4) a photocopy of the notice of termination from the AHRC which Mr Amponsem maintained on his personal file and (5) evidence given by Mr Amponsem in cross-examination. The primary judge concluded that the document bearing reference number 049467812092 was the notice of termination by the AHRC. He concluded that it was the document sent by Mr Amponsem by express post to the Registry on 24 May 2012 and misfiled on the fair work proceedings file of the Federal Court. He concluded that Mr Amponsem had not mailed an application in appropriate form on 24 May 2012. Mr Amponsem asserted that the document filed with the Federal Circuit Court on 16 July 2012 was a “reconstructed” version of the document sent on 24 May 2012 which was lost. The primary judge found at [80]:

The explanation for delay is substantially contradicted by the evidence of the applicant alone. Mr Amponsem attempted to provide the explanation that he had to reconstruct the original application sent to the Court due to it being lost by either Australia Post or the Court’s Registry, but the result of this attempt was that his explanation was, instead, totally discredited.

14    The applicant has provided no evidence or explanation which casts doubt on the finding of the primary judge.

Ground 3

15    In this ground Mr Amponsem says that he is self-represented with little knowledge of court processes and that he relied on what he was told by the Court.

16    The primary judge found, at [50]-[52] that Mr Amponsem has some experience with Court proceedings. It is not the function of the registry of either the Federal Circuit Court or of this Court to provide legal advice about the timeframes for lodging applications and applicants must bear responsibility for ensuring relevant timeframes are met. I endorse the comment of Katzmann J in SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [8]: “In the ordinary course of events a layperson would not be expected to be aware of the Court’s time limits. Save perhaps for exceptional cases, ignorance of a time limit cannot therefore take the case out of the ordinary.”

17    I do not find that the primary judge erred in his approach in relation to this issue.

Strength of the case to be argued

18    The primary judge gave extensive consideration to the strength of Mr Amponsem’s claims and the legislative scheme to which they relate. He concluded that he was not satisfied that breaches of the relevant legislation could be established: [59]-[78]. His reasons for reaching that conclusion included:

(a)    There is substantial dispute about whether Mr Poulos made the comment alleged;

(b)    The applicant was not in attendance at the meeting at which Mr Poulos is alleged to have made the comment;

(c)    The comment was alleged to have been made at a meeting on 10 March 2011, but the complaint to the AHRC was made in January 2012;

(d)    The applicant’s employment was not terminated as a result of the alleged comments or on racial grounds but because of alleged misconduct;

(e)    At the time the comment was alleged to have been made, Mr Amponsem may not have been an employee of the first respondent;

(f)    The meeting at which the comment is alleged to have been made was not “in public”, it was upstairs in a roped off area (which Mr Amponsem’s affidavit of 8 January 2014 concedes, although he argues the rope could have been removed and access obtained that way);

(g)    The primary judge was not satisfied that even the worst reading of what is alleged to have been said by Mr Poulos would fall within the requirements of the Racial Discrimination Act and be sufficient to attract a remedy.

19    I do not consider that the primary judge is wrong in the conclusions that he reached.

Substantial Injustice

20    Counsel for the respondents has properly noted that unlike leave applications concerning decisions which deal with a point of practice and procedure, if leave to appeal is refused it will have the effect of finally determining the issues between the parties, and that must be taken into account.

21    Mr Amponsem advised the primary judge that he wished to discontinue the proceedings on 20 February 2013, and elected to pursue the proceedings because the respondents pressed an application for costs. This is borne out by the transcript of the proceedings annexed to the respondents’ written submissions. It is also borne out by [12] of Mr Amponsem’s affidavit of 8 January 2014 which says:

Back on 11th March 2013 I submitted an affidavit explaining the stress and medical help I have been receiving since being in court. In that affidavit I did state that I was happy to discontinue this case due to the stress it had brought on my health and for each party to pay their own costs.

22    This is a factor which weighs heavily in favour of the argument that Mr Amponsem would not suffer substantial injustice if either an extension of time to file an application for leave to appeal or leave to appeal were not granted, even though it would have the effect of determining the dispute between the parties.

23    Further, the alleged comment complained of is a single instance, and not part of a pattern of conduct. It is unlikely that the Court would order relief in the nature of that sought; that Mr Poulos be stood down. It is difficult to see what remedial or protective purpose such an order would serve since Mr Amponsem is no longer employed by the first respondent. Mr Amponsem did not indicate that he wished to pursue a claim for damages.

24    An apology can be an important remedy. However, even it if it were to be found that Mr Poulos made the comment alleged, Mr Amponsem does not now work with any of the people who attended the 11 March meeting and he did not attend it himself. I do not consider that this factor alone is of sufficient weight to work substantial injustice in the context, even accepting that Mr Amponsem may have been personally affronted at the report of such a comment and its gravamen that he treated his staff badly.

Extension of time

25    Mr Amponsem sought to attend by telephone the delivery of the judgement of the primary judge on 29 November 2013, but communications failed. However, Mr Amponsem confirmed that he received a written copy of the primary judge’s reasons soon after. Mr Amponsem attempted to file a notice of appeal seven days after the last day prescribed by r 35.13 for filing the application for leave to appeal. His reason was that he was misled by the Registry and thought he had 21 days, the period prescribed under r 36.03 for filing a notice of appeal. For the reasons at [16] above, I do not consider this a weighty reason, even though Mr Amponsem is self-represented and even though he tried to file a notice of appeal within the 21 days period prescribed for notices of appeal.

26    I do not consider that Mr Amponsem would have good prospects of succeeding on appeal in relation to the primary judge’s decision not to extend time for his claim under s 46PO of the AHRC Act for the reasons set out above.

27    There is no automatic right to an extension of time. The discretion to extend time is given for the sole purpose of enabling justice to be done between the parties so that rules which fix time do not become “instruments of injustice”: Gallo v Dawson (1990) 93 ALR 479 at 480. There is also a public interest in the expeditious conduct of litigation.

28    I therefore dismiss Mr Amponsem’s application to extend time to file a notice of appeal from the decision of the primary judge and order that he pay the costs of the first and second respondent as agreed or assessed in default of agreement.

Associate:

Dated:    19 February 2014