FEDERAL COURT OF AUSTRALIA
Kirunda v Commissioner of Police, New South Wales Police Force
[2017] FCA 735
ORDERS
Applicant | ||
AND: | COMMISSIONER OF POLICE, NEW SOUTH WALES POLICE FORCE Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The applicant has leave to rely upon his affidavits sworn on 2, 16 and 21 March 2017.
2. The interlocutory application filed on 2 December 2016 is dismissed.
3. The applicant is to pay the respondent’s costs of the interlocutory application filed on 2 December 2016 as agreed or assessed, unless, within seven days hereof, the applicant files and serves an outline of written submissions not exceeding five pages in length explaining why some other order should be made as to costs.
4. In the event that the applicant seeks some other order as to costs as per order 3 above, the respondent is to file and serve within a further seven days of service of the applicant’s written submissions its outline of written submissions not exceeding five pages in length on the issue of costs.
5. The issue of costs will then be determined on the papers.
6. There be no order as to costs in respect of the interlocutory applications filed on 17 and 21 March 2017.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
GRIFFITHS J:
1 These proceedings involve an interlocutory application for extension of time and leave to appeal which was filed on 2 December 2016, an interlocutory application filed on 17 March 2017 to adduce further evidence, and an interlocutory application filed on 21 March 2017 to adduce further evidence. The further evidence that was the subject of the interlocutory application filed on 17 March 2017 was in the form of an affidavit dated 2 March 2017. The interlocutory application filed on 21 March 2017 evidently superceded an earlier interlocutory application dated 16 March 2017 to adduce further evidence. The further evidence that was the subject of the interlocutory application filed on 21 March 2017 was in the form of affidavits sworn on 16 and 21 March 2017 by the applicant. The respondent opposed the applicant being able to rely upon this material on the basis that it lacked relevance. I granted leave for the applicant to rely upon these affidavits, subject to the objections based on relevance.
Summary of background matters
2 The application for an extension of time and leave to appeal relates to an order made by the Federal Circuit Court of Australia (FCCA) on 2 August 2016. The order was accompanied by detailed reasons for judgment (see Kirunda v New South Wales Police [2016] FCCA 1812 (Kirunda at first instance)). In Kirunda at first instance, the Court ordered that the applicant’s applications in a case dated 4 September 2015 and 18 November 2015 be dismissed. In the application dated 4 September 2015, the applicant sought a reinstatement of his substantive application in which he alleged unlawful discrimination pursuant to s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act). The grounds of the substantive application were said to rely on the Racial Discrimination Act 1975 (Cth) (the RD Act).
3 The applicant was employed by the respondent until his employment was terminated on 30 June 2015. Up to that point, the applicant claimed to have suffered a psychological injury and was unable to work since 31 January 2013. On 13 August 2013, he complained to the Australian Human Rights Commission (the AHRC) under s 46PO of the AHRC Act. Broadly, he claimed that over the course of his employment with the respondent a number of managers and colleagues harassed and bullied him and discriminated against him because of his race. On 14 March 2014, the AHRC terminated the applicant’s complaint under s 46PH(1)(i) of the AHRC Act. On 13 May 2014, the applicant initiated proceedings in the FCCA in which he claimed that the respondent had discriminated against him contrary to the RD Act. On 17 October 2014, the respondent filed an application in a case seeking to have struck out or dismissed a substantial part of the applicant’s substantive proceedings in the FCCA. The matter was set down for hearing in the FCCA on 18 February 2015.
4 On 30 December 2014, by email the applicant sought the respondent’s consent to adjourn the hearing scheduled for 18 February 2015, to which the respondent declined. The applicant’s email made reference to other proceedings brought by him in respect of a worker’s compensation claim and that an adjournment would assist his “recovery”. He annexed a brief letter dated 23 December 2014 by Ms Nita Hidalgo, who described herself as a clinical psychologist. The letter stated:
Mr Bill Kirunda is currently being treated for symptoms of Post Traumatic Stress Disorder and Major Depressive Disorder. Due to the nature of his continuing stressors including his legal issues, his symptoms have been exacerbated that negatively impact on his day to day functioning. I would appreciate your support by allowing an adjournment of the current legal matter as his symptoms would negatively interfere with his ability to function within a court setting.
If you require further clarification, please don’t hesitate to contact me.
5 On 16 February 2015, the applicant sent an email from overseas to the Registry of the FCCA and sought an adjournment of the hearing until his worker’s compensation matter was resolved. He referred also to an outstanding application for legal aid. He claimed that he had left Australia because of anxiety and that his psychological condition and injury had been exacerbated by ongoing intimidation and harassment from individuals he said he could “only assume” were associated with the respondent.
6 The applicant did not appear on 18 February 2015. The FCCA ordered that his substantive application be dismissed for non-appearance under r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (the FCCRs). The applicant was ordered to pay the respondent’s costs.
7 There was then some delay until 4 September 2015 when the applicant filed an application in a case seeking to have the orders made on 18 February 2015 set aside. On 18 November 2015 the applicant filed a second application in a case in which he sought an extension of time within which to lodge a notice of objection to the Registrar’s notice of the estimate of costs dated 20 August 2015, which related to the costs order made against the applicant on 18 February 2015.
8 In an affidavit sworn on 3 September 2015 in support of his application in the FCCA to have his substantive application reinstated, the applicant claimed that he had been “stalked and intimidated by persons unknown since around October 2013” and that he had “no reason to believe it is being instigated or perpetrated by anyone other than the Respondent in retaliation for my ongoing claims against them which include being unlawfully followed by a marked police car on 11 January 2014”. He further stated that he had attempted to escape this “stalking and intimidation” by temporarily relocating first to Queensland earlier in 2014 and then to Uganda in December 2014. He deposed that he was too scared to return to Australia “because of the prospect of the trauma of further stalking and intimidation in addition to the loss of family support that I had in Uganda”. In a letter to the Registrar which the applicant sent under cover of an email on 17 February 2015, he stated that he believed that he had faced “covert intimidation from unknown people even in Kampala, Uganda where I am at the moment which has further exacerbated my ill-health”. He said that he felt unable to return to Australia because of the “ongoing covert intimidation while in Sydney NSW, taking advantage of my social isolation which continued to exacerbate my mental ill-health”. It appears that he attached to his email dated 17 February 2015 a copy of the brief letter dated 23 December 2014 by Ms Hidalgo, Clinical Psychologist which is set out at [4] above.
Summary of FCCA’s reasons for judgment
9 The primary judge gave detailed reasons for judgment in rejecting each of the applicant’s applications. The reasons for judgment total 251 paragraphs. The key relevant points may be summarised as follows.
10 Regarding the applicant’s application for reinstatement of his substantive application, his Honour cited the requirement for the applicant to provide a reasonable explanation for non-appearance, and the requirement for there to be a reasonable prospect of success if the matter was allowed to proceed.
11 His Honour directly addressed three reasons advanced by the applicant to explain his non-attendance at the hearing on 18 February 2015, and concluded that no reasonable explanation was given.
12 First, the applicant’s claim that he suffered a “psychological injury” which meant he was unable to work since 31 January 2013. His Honour rejected the applicant’s reliance on two medical reports dated 16 April 2014 by Dr Selwyn Smith and 17 April 2014 by Ms Hidalgo, and found there was nothing in these reports to indicate that the applicant’s condition continued in December 2014 or February 2015 so as to explain his non-attendance on 18 February 2015 (at [34] to [43]). Similarly, the primary judge found that the letter from Ms Hidalgo to the respondent’s solicitors dated 23 December 2014, requesting support for an adjournment of “the current legal matter” did not clearly relate to the matter before the primary judge, said nothing about the applicant’s capacity to appear, did not report on the applicant’s psychological condition, and did not provide a reasonable explanation for the applicant’s non-attendance [44] to [55]). At best it was a short letter of support for an adjournment, so his Honour found (at [49]).
13 Secondly, the applicant’s claim that he left Australia in late 2014 to escape stalking and intimidation by the respondent. His Honour held that this did not satisfactorily explain why the applicant made no attempt to seek an adjournment before 16 February 2015 or participate by telephone as he had done for earlier directions hearings (at [62]). The applicant’s claim in his email to the Court’s Registry on 16 February 2015 that the respondent caused other individuals to harass the applicant in Uganda was found to stretch “the bounds of credibility” (at [76]-[77]). Further, a flight confirmation dated 29 January 2015 revealed that the applicant knew about three weeks before the hearing that he would not be returning to Australia in time for the hearing, but he made no attempt to contact the respondent or approach the Registrar of the Court (at [82]).
14 Thirdly, the applicant’s claim that after leaving Australia he was “too scared to return to Australia because of the prospect of the trauma of further stalking and intimidation” (at [85]). His Honour considered in detail the evidence that the applicant said provided a “belief” that he was the subject of a campaign of intimidation and harassment by the respondent including photographs that the applicant claimed depicted “stalking incidents” (at [93] to [100]). His Honour concluded that this belief could only be described as speculation (at [101]).
15 Importantly to these proceedings are his Honour’s explanation for the applicant’s lengthy delay between the Court’s orders made on 18 February 2015 and the applicant’s application dated 4 September 2015. His Honour considered the applicant’s submissions that his medical condition and ongoing harassment by the respondent had left him so exhausted that he could not focus on attending to this matter, and contributed to the delay in his seeking to reinstate his substantive application (at [110]). His Honour also considered the applicant’s statements to the respondent’s solicitors and the Court’s Registry in December 2014 and February 2015 that he sought an adjournment to pursue his worker’s compensation claim, and could not pursue his discrimination proceedings due to lack of capacity (at [138]). His Honour concluded that if the applicant was aggrieved by what he believed to be racial discrimination by the respondent, then the applicant’s explanation for not pressing reinstatement of his case until September 2015, being that he sought to press his workers compensation matters, was not a reasonable explanation for his non-attendance, or his delay in seeking an adjournment or his delay in seeking reinstatement of his substantive application (at [103], [111] and [140]).
16 It is desirable to now summarise the primary judge’s key findings as to why the substantive proceeding lacked prospects.
17 First, to make a prima facie case that an unlawful act of discrimination has occurred within the ambit of the RD Act the applicant was required to establish a “sufficient connection” between the respondent’s conduct and the applicant’s relevant characteristic. The applicant claimed that he had a belief that the respondent bullied and intimidated him because of his race, and victimised him because he had lodged a complaint. It was not clear whether the complaint to which he referred was the complaint he made to the AHRC, or other internal complaints he made while he was employed. His Honour held that a “belief” is not sufficient to say that the claims had reasonable prospects of success in the proceedings and none of the material put before the Court indicated or inferred a sufficient connection. There was also no indication from the applicant that there was other material available, which he had not presented to the Court, to provide any such indication of a connection (at [143] to [162]).
18 Secondly, his Honour analysed various sections of the RD Act cited by the applicant in his Points of Claim (including ss 9, 10, 13, 15, 18 and 18C) and explained why the applicant’s case did not meet the requirements of those provisions (at [168] to [179]). They included that the applicant did not identify a “human right” or “fundamental freedom” adversely affected as required by s 9, a relevant law as required by s 10 which addresses a right to equality before the law, or what goods or services he had been refused by the respondent as required by s 13.
19 Thirdly, his Honour identified fresh allegations included in the applicant’s Points of Claim that were not the subject of his complaint to the AHRC. They included that the respondent prevented the applicant from doing overtime, and victimised him in relation to the processing of leave entitlements. The primary judge concluded that it was not open to the applicant to expand his complaint by adding fresh allegations (at [183] to [185]).
20 Fourthly, the primary judge cited [51] of the applicant’s Points of Claim which was in the following terms (at [192]):
The applicant made several applications for both clerical and professional legal officer positions and secondments over the course of 7 years none of which were successful. In failing to gain a single promotion to a more senior role appropriate to the applicant’s skills, qualifications and experience, the applicant was treated less favourably than someone with similar qualifications who was not of his race. The jobs applied for will be particularised after production of subpoenaed documents.
21 His Honour concluded that there were insufficient particulars to these allegations to indicate that they had some prospect of success. His Honour noted that the applicant had had a reasonable opportunity to prosecute his case in a timely fashion, and his focus on the worker’s compensation proceedings and his claimed lack of capacity due to his psychological condition and lack of any legal knowledge did not satisfactorily explain his lack of action in giving relevant substance to [51] of the Points of Claim. Nor did they substantively explain why the applicant did not pursue this matter in either the ensuring sixteen months available to him or in the eight months since he filed his application in a case (at [196] to [200]) .
22 The primary judge also gave reasons for declining the applicant’s application to extend time by which to lodge an application to review the Registrar’s estimate of costs (at [218] to [233]). The key features of the primary judge’s reasons for declining to set aside the earlier costs order are summarised and considered at [75]ff below.
Applications in this Court
23 It was not disputed that the applicant required leave to appeal from the orders of the FCCA made on 2 August 2016, because the orders were interlocutory. Such an application ought to have been made within 14 days from 2 August 2016 (see Federal Court Rules 2011 (Cth) (FC Rules) r 35.13(a)).
24 Instead, the applicant lodged a notice of appeal on 22 August 2016. This was outside the 14 day period for lodging an application for leave to appeal but within the 21 day period for lodging a notice of appeal (see FC Rules r 34.24(1)). There was an exchange of correspondence between the applicant and the respondent’s solicitors concerning the need for him to file an application for leave to appeal and an extension of time (see further below).
25 Instead of attending to filing an application for extension of time and leave to appeal, on 20 September 2016 the applicant filed a supplementary notice of appeal. Then on 23 September 2016 he filed an interlocutory application in which he sought an extension of time to 15 November 2016 to lodge a supplementary notice of appeal under r 36.10. The respondent opposed these applications. On 28 September 2016, Perry J made directions which required the applicant to file and serve any application for leave to appeal and any application for an extension of time within which to seek leave to appeal by 2 December 2016. In the alternative, her Honour directed that any amended notice of appeal be filed and served by that time and provision was made for the respondent to object to the competency of any such appeal.
26 As noted above, on 2 December 2016 the applicant filed an interlocutory application for extension of time and leave to appeal. This occurred almost 12 weeks after the respondent’s solicitors had drawn the applicant’s attention to the need for him to take those steps.
27 The relevant principles guiding the Court’s consideration of an extension of time to seek leave to appeal are well settled. They are set out in many authorities and are summarised in ALE16 v Minister for Immigration and Border Protection [2017] FCA 115 at [20]-[21]. The Court needs to be satisfied that there is an acceptable explanation for the delay and consider inter alia whether there is undue prejudice to the respondent and merit in the proposed appeal. An applicant seeking leave to appeal must persuade the Court that the primary decision is attended with sufficient doubt to warrant the grant of leave and that substantial injustice would result from a refusal of leave to appeal, assuming the decision below to be wrong.
28 There is another aspect of this case which attracts a further important consideration. It relates to the fact that the primary judgment the subject of the applicant’s interlocutory application is on a matter of practice and procedure, namely whether or not the substantive application should be reinstated. This is reflected in the following helpful statement of the relevant principles by Jagot J (with whom Middleton and Wigney JJ agreed) in Trevor (Liquidator) v Evans [2017] FCAFC 36 at [4]:
In accordance with orthodox principle, for a grant of leave to be obtained, the applicant must demonstrate, first, that there is sufficient doubt about the judgment to warrant reconsideration by the Full Court and, second, that substantial injustice would arise if the decision below were incorrect and leave not granted: Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 at 399. Given that this application concerns a discretionary judgment about a matter of practice and procedure, as the respondents also submitted, to establish the first of those requirements, namely, the existence of sufficient doubt, it is necessary that there be disclosed error of the kind described in House v R (1936) 55 CLR 499 at 504 to 505. Further, in matters such as this, courts generally exercise “particular caution” before granting leave: see Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177.
29 The applicant relied upon affidavits sworn by him and dated 23 September 2016, 2 December 2016, 2 March 2017, 3 March 2017, 16 March 2017 and 21 March 2017. Various evidentiary rulings were made in respect of that material, including a ruling that Annexures BKW47 to BKW50 inclusively were admitted subject to relevance. In his oral address, the applicant devoted considerable time seeking to establish the relevance of that material (see further below). These documents were annexures to the applicant’s affidavit sworn 16 March 2017. It is desirable to describe the contents of each of them. Annexure BKW47 comprised correspondence from the respondent relating to the applicant’s application dated 9 August 2016 under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) (the applicant’s affidavit sworn 21 March 2017 described his two freedom of information requests). The correspondence confirmed that, on 10 October 2016, a determination had been made under that legislation in respect of the applicant’s application for access to copies of police event reports concerning various reported incidents lodged by the applicant. The letter was accompanied by various COPS reports, including one created on 20 April 2016 in respect of a complaint by the applicant that, while he was walking, a glass bottle was thrown in his direction from a black SUV and that, at the same time, there was a red car with two people sitting in it. It was recorded that the applicant did not see from which car the bottle was thrown. The applicant is recorded as saying that he believed that he was being “targeted” because of his ongoing complaints against the respondent. The COPS report recorded that the applicant “did not want any police action taken and did not want to provide a statement” and that he “just wanted a report of the incident”. The document recorded that the matter would be subject to no further investigation as at 21 April 2016.
30 BKW48 is a copy of a letter dated 20 December 2016 to the applicant from his local member of State Parliament. The letter refers to the applicant having contacted the MP’s office concerning his “ongoing concern about reports of crimes to the NSW Police Force and the followup investigation”. The applicant was told that the MP had written to a senior police officer about the matter and that she would be in touch again when she received a reply.
31 BKW49 is a report dated 23 July 2014 by Dr Graham George in respect of his psychiatric assessment of the applicant. At that time, Dr George concluded that the appropriate diagnosis of the applicant was that of “delusional disorder in combination with symptoms of major depression”.
32 BKW50 is a FCCA document entitled “Communicating with Judges’ Chambers : Notice to Litigants and Legal Practitioners”. Paragraph 2 of that document states:
The Federal Circuit Court encourages common sense management of cases within dockets. As a result, it is recognised that formal and procedural matters can be dealt with by informal processes with significant savings in court time and expense to the parties. For that reason, we accept that consent orders, consent adjournments and the like can be subject to joint e-mail communication with our Associates…
33 In support of his application, the applicant relied on a proposed supplementary draft notice of appeal which was filed on 20 September 2016. It contains 66 paragraphs and alleges numerous errors of fact and law on the part of the primary judge. The document also contains material in the nature of submissions in support of the applicant’s case.
34 Both parties also filed written submissions in support of their respective positions.
35 At the outset of hearing, the applicant confirmed that his written submissions filed in this Court on 24 March 2017 identified the grounds which he wished to press in support of his application for an extension of time and leave to appeal. The Court pointed out that it would concentrate on that document, together with the applicant’s oral submissions, given that many of the proposed grounds of appeal had not been developed by the applicant in his written submissions.
36 The applicant represented himself and made oral submissions in support of his application for an extension of time and leave to appeal. The applicant’s oral submissions largely mirrored his written submissions. As will emerge, I do not consider that the applicant has provided a satisfactory explanation for his delay, nor do I consider that any of his proposed grounds of appeal have reasonable or arguable prospects.
37 I will first address the applicant’s explanation for the delay in seeking an extension of time and leave to appeal in this Court before addressing the prospects of his proposed grounds of appeal.
The applicant’s explanation for delay
38 In both his written and oral submissions, the applicant tended to elide the reasons why he did not attend the hearing in the FCCA on 18 February 2015 with his delay in filing his application for an extension of time and leave to appeal in this Court. He said that he relied upon the explanation provided in his affidavit dated 23 September 2016 in explaining his delay in this Court. He emphasised that the notice of appeal lodged by him on 22 August 2016 was a bona fide mistake and that the respondent was on notice from that time that he proposed to appeal.
39 The matters raised in his affidavit dated 23 September 2016 may be summarised as follows.
40 First, the applicant said that he lacked legal representation and, from September 2016 onwards, he had responsibility as a litigant in person for pursuing his worker’s compensation claim. He gave evidence as to the steps taken by him in September 2016 in relation to those proceedings.
41 Secondly, he said that he was continuing to suffer trauma arising from the failure of the respondent to investigate a report of an incident made by him to Merrylands Police Station in April 2016. It will be necessary to say something more about that matter shortly.
42 Thirdly, he said that in September 2016, he was residing in a hostel and that the lease ended on 23 September 2016.
43 Fourthly, and perhaps most importantly of all, he emphasised his medical conditions in 2016. He said that he was suffering from a “severe psychological injury which adversely affects my ability to concentrate, complete mental tasks and manage daily activities of living”. He relied upon reports by Dr Smith dated 16 April 2014 and by Ms Hidalgo dated 17 April 2014, and the brief letter from Ms Hidalgo dated 23 December 2014 in support of that submission. He also claimed that the respondent’s failure to provide him with information concerning his criminal incidents reports continued to aggravate his psychiatric injury. He said that he was experiencing chronic pain in his lumbar spine and that he needed to attend various medical appointments which took up time, required time and effort and made it difficult for him to complete the tasks in progressing his case in this Court. He annexed various letters and reports from medical practitioners dated during the period 4 February 2016 to 29 June 2016, as well as Medicare reports which identified him as having received medical services on 30 August 2016.
44 The applicant annexed to his affidavit dated 2 March 2017 a further report dated 13 January 2017 by Ms Hidalgo. The report is expressly addressed to Perry J and, having regard to its date, it appears to have been obtained in support of the applicant’s request for an extension of time. It is stated in the report that Mr Kirunda had been “attending psychological treatment for a psychological injury sustained in his workplace at the NSW Police Force, commencing the (sic) 30/12/12, on a monthly basis and is continuing to date”. The report confirms Ms Hidalgo’s previous diagnosis that Mr Kirunda was suffering from Major Depressive Disorder and Post Traumatic Stress Disorder. It refers to Mr Kirunda having sold his home in May 2016 due to “financial stressors resulting from his inability to maintain gainful employment since the psychological injury sustained at NSWPF” and that he has relocated his accommodation several times. The report added that Mr Kirunda’s lack of a stable and safe home environment exacerbated his “hypervigilance, hyperarousal, depression, ruminative thoughts, disrupted sleep with the negative impact on decision making, difficulties with focus, concentration and lacking energy to complete tasks.” The report includes references to various matters which Mr Kirunda had told Ms Hidalgo, including that:
he had sent a report to the AFP regarding his email being “hacked” and being accessed unlawfully and that this report was made to the AFP because he “fears for his safety”;
he had reported “incidences (sic) to be investigated by the respondent” and they have “lied” and stated no investigation was required for an incident on the 7th April 2016;
he was the victim of a drive-by incident of intimidation on 7 April 2016 when a bottle was thrown at him in Merrylands, which has created further anxiety and exacerbated his PTSD symptoms and resulted in him making a further complaint to the AHRC in October 2016;
he is currently in chronic pain due to the continuing pain in his lumbar spine commencing August 2015 has been exacerbated; and
he has two concurrent court cases and the complaint before the AHRC and a complaint before NSW Victims Services, as well as proceedings concerning worker’s compensation.
45 Ms Hidalgo stated in her report:
Overall, these stressors have exacerbated the following symptoms; hypervigilance, hyperarousal, “flashbacks and reliving trauma,” anxiety, depressed mood, chronic pain, disrupted sleep, withdrawal from social supports, delusional ideation, difficulty focusing and concentrating, fatigue and mental exhaustion.
In my opinion, due to the numerous stressors and ongoing “triggers” of the NSWPF, Mr Kirunda’s depressive symptoms, PTSD and chronic pain have been exacerbated that would have a detrimental impact on his ability to function in his day to day living and also coping with his various claims mentioned above.
I am requesting from the Court an extension of time for Mr Kirunda’s claim due to the numerous stressors and exacerbation of psychological symptoms outlined in the report.
46 Fifthly, he deposed that he was not able to obtain advice under the Justice Connect program until 27 September 2016, after an appointment had first been scheduled for the week previously.
47 The respondent submitted that the Court should find that the applicant had provided no acceptable explanation for his delay. It emphasised that its solicitors had brought to his attention in correspondence commencing on 13 September 2016 that he required leave to appeal. The correspondence may be summarised as follows.
48 By letter dated 13 September 2016, the respondent’s solicitors advised the applicant that he needed to file an application for an extension of time to seek leave to appeal. He was advised as to the relevant legislative provisions which required this to occur. The letter was accompanied by proposed short minutes of order (by consent) which would have permitted the applicant to file and serve applications for an extension of time and leave to appeal by 5 October 2016. Instead of adopting that course, on 20 September 2016 the applicant filed a supplementary notice of appeal and on 23 September 2016 the applicant filed an interlocutory application seeking an extension of time to lodge a supplementary notice of appeal.
49 By an email dated 27 September 2016, the respondent’s solicitors wrote again to the applicant. They reiterated their position that the applicant’s notice of appeal was out of time and that he had to file an application for an extension of time to seek leave to appeal. He was advised that the respondent would press for orders set out in the previous correspondence at the case management hearing before Perry J on 28 September 2016. (As noted above, her Honour made orders on that day which required the applicant to file and serve an application for leave to appeal and any application for an extension of time for doing so by 4 :00 pm on 2 December 2016 or, alternatively, to file and serve any amended notice of appeal by that time. Her Honour also made orders permitting the respondent to file and serve any objection to the competency to any such appeal).
50 A third letter was sent by the respondent’s solicitor under cover of an email dated 18 October 2016. Reasons were given for the respondent’s position that Nicholls J’s judgment on 2 August 2016 was interlocutory in nature and that, if the applicant wished to challenge it, he had to file an extension of time for leave to appeal. He was told again that the existing notice of appeal was incompetent.
51 For the following reasons, I consider that the applicant has failed to provide a satisfactory explanation for the delay in seeking an extension of time and leave to appeal from the primary judgment.
52 I take a similar view to that of the primary judge in attaching little, if any, weight to the fact that the applicant is a litigant in person. He has legal qualifications and holds a graduate diploma of legal practice. He has worked as a lawyer for the respondent for several years. It is also evident from the written and oral submissions made by the applicant in this Court that he is in a better position than most litigants in person to present his case. He has undertaken extensive legal research in support of his claims and he presented his case courteously and competently. It may be accepted that he put himself under considerable pressure by initiating proceeding in both the FCCA and subsequently in this Court, at the same time as progressing his worker’s compensation claims (as well as applications made by him including his freedom of information requests), but that is a result of presumably informed decisions made by him.
53 In my view, the applicant produced no sufficient medical evidence to make good his claim that he was continuing to suffer trauma because of the respondent’s alleged failure to investigate his report concerning the bottle throwing incident. The applicant acknowledged that he was told on 6 May 2016 that a decision had been made not to investigate his report. He said that he protested that matter and may well have felt aggrieved and disappointed, but I do not accept that he has demonstrated that this provides an adequate explanation for his delay in seeking an extension of time and leave to appeal, particularly when the need for him to do so had been drawn to his attention by the respondent’s solicitor on 13 September 2016.
54 As to the applicant’s accommodation arrangements in September 2016, he makes no complaint that he did not receive the respondent’s solicitors’ correspondence about the need for him to take the necessary and appropriate steps.
55 There is then the reliance placed on the applicant’s medical condition in the relevant period in 2016, to which I now turn.
56 Some of the medical reports relied upon by the applicant appertain to medical assessments of his condition in April 2014. They do not assist him in establishing his mental or physical condition in the relevant period September to December 2016. The additional medical evidence relied upon by the applicant (in annexure BWK14 of his affidavit dated 23 September 2016) does not advance the matter. That evidence includes a letter dated 5 May 2016 from Westmead Hospital and relates to a medical examination carried out on 4 May 2016. It is recorded there that the applicant “denies any significant trauma”. The letter primarily relates to the applicant’s complaint of pain in his coccyx. The applicant was advised to undertake physiotherapy and take stronger painkillers. The treating doctor said that he planned to see the applicant again in approximately four months’ time after the results of a CT and MRI would be available.
57 A second medical report is dated 29 June 2016, by Associate Professor Mark Sheridan, neurosurgeon. It relates to an examination of the applicant on 28 June 2016 and also records the problems with the applicant’s coccyx. It records that there is no “history of trauma in the area and he is otherwise well”. A CT scan also showed that there was no fracture. The applicant was referred to the Pain Clinic at Liverpool Hospital.
58 A report dated 8 June 2016 from Westmead Hospital Medical Imaging records the results of a CT scan and concludes that there was “no evidence of acute sacral or coccygeal fracture”. Another report dated 4 February 2016, which relates to an examination of the applicant carried out on that day, records a “displaced fracture of the bony coccyx on lateral view with displacement posterity by up to 4mm”. The applicant also put into evidence various medical records, which confirm that he had CT scans and an MRI of his lumbar spine on 30 August 2016.
59 In my view, none of this material provides a satisfactory evidentiary basis for the applicant’s claim that his ongoing trauma and psychological status precluded him from taking steps earlier than he did to initiate the correct proceedings in this Court. It is notable that, despite that claim, the applicant was able to:
attend to drafting and filing on 22 August 2016 a detailed notice of appeal totalling 11 pages plus annexures totalling 16 pages in length;
draft and file on 20 September 2016 a supplementary notice of appeal totalling 18 pages in length;
draft and file an interlocutory application on 23 September 2016 seeking an extension of time to lodge his supplementary notice of appeal; and
prepare, have witnessed, file and serve an affidavit dated 23 September 2016, to which are attached 17 annexures.
60 The evidence suggests that, in the period September to early December 2016, the applicant preferred to take his own course and pursue his personal belief that the matter should proceed by way of a notice of appeal notwithstanding that, by around 13 September 2016, he knew that the respondent’s firm position was that that course was (correctly) misconceived. It might also be noted that, despite the applicant’s medical conditions, he was able to attend to various matters relating to his worker’s compensation proceeding during October and November, as well as make an application for access to information under the GIPA Act (see his affidavit dated 2 December 2016 [21]-[23]). All these matters indicate that, whatever practical and medical issues he had, the applicant was able to prosecute his case.
61 Finally, as to Ms Hidalgo’s 2017 report, which is summarised in [44] and [45] above, it falls short of providing a sound basis for explaining the delay in initiating the interlocutory application which is the subject of this judgment. In large measure, the report simply records what Mr Kirunda told Ms Hidalgo about various events and his reactions to them. There are other aspects of Ms Hidalgo’s report which affect its weight. It is clear that it does not conform with the Court’s practice note relating to expert evidence. Even if that matter is put to one side, it is unclear whether Ms Hidalgo appreciated the use to which her report was to be put. This is reflected, for example, in her statement in the penultimate paragraph of the report that she was “requesting from the Court an extension of time for Mr Kirunda’s claim due to the numerous stressors and exacerbation of psychological symptoms outlined in the report”, and that she hoped that Perry J would find the report “of assistance”. Significantly, nowhere in the report does Ms Hidalgo say that she was asked to address specifically the applicant’s psychological status during the period September to December 2016. Furthermore, notwithstanding that the opinions expressed by Ms Hidalgo as to the applicant’s ability to function in his day to day living and coping with his various claims, the objective evidence indicates that, during the relevant period, the applicant displayed considerable ability and competence in attending to the proceedings in this Court, in pursuing his worker’s compensation claim during October and November, in making an application for access under the GIPA Act, and in lodging a further complaint to the AHRC, not to mention the other matters described above.
62 Finally, Mr Kirunda relies upon the fact that there was a one week delay in him obtaining advice under the Justice Connect program. In circumstances where he delayed from at least 27 September 2016 to 2 December 2016 in bringing the proper applications, I do not consider that this delay of one week is material.
63 That is probably sufficient to dispose of the interlocutory application. However, for completeness, I will explain why I also accept the respondent’s submission that the grounds raised in the supplementary notice of appeal, as explained in the applicant’s written and oral submissions, do not have sufficient prospects to warrant a grant of leave to appeal. It is also important to bear constantly in mind the need for constraint in circumstances where the primary judgment is on a matter of practice and procedure, as is the case here.
Assessment of the prospects of the applicant’s proposed grounds of appeal
Grounds 2(f) and 5: denial of procedural fairness
64 The applicant submitted that he had been denied procedural fairness by the primary judge. He relied upon an index of the transcript of the hearing on 3 May 2016 in the FCCA. He submitted that he had been subjected to excessive interruption by the primary judge, “sustained – cross-examination” throughout his submissions and “pejorative commentary”.
65 Some of the relevant principles which can arise when a litigant in person makes such a complaint of procedural unfairness are set out in the Full Court’s judgment in SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; 216 FCR 445. Useful guidance is also to be found in the Court of Appeal’s decision in Hamod v New South Wales [2011] NSWCA 375 and in Mortimer J’s observations in MZAGE v Minister for Immigration and Border Protection [2016] FCA 630 at [32] and [35], where her Honour said:
32 As the Minister correctly submits, the Federal Circuit Court's obligation was to give the appellant a reasonable opportunity to be heard: see Wyman v Queensland [2015] FCAFC 108; 235 FCR 464 at [43], citing Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597 at [40]; Scott v Handley [1999] FCA 404; 58 ALD 373 at [30]. The nature of that obligation is not altered because a person is not represented by a lawyer, although its content may change in a given case. Where a person is self-represented, the Court has an obligation to ensure that the person suffers no meaningful disadvantage in the conduct of her or his case because she or he does not have the skills or knowledge of a lawyer. However, the Court must remain impartial and cannot conduct the case for the self-represented person. Nor does the fact of being self-represented relieve a party from having to prove what is necessary to be proved in order to make out a claim. I have set out my opinion on how these responsibilities should be balanced, accepting that is a difficult task, in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392 at [59]-[77].
…
35 Not all self-represented litigants have the same kind or level of disadvantage. They are not a single category of people, with common characteristics. A host of features - level of education, health, familiarity with the legal system, competency in English, personality, access to support or assistance from others - combine to require individual assessment by the court in each case of what level of assistance and information a self-represented litigant requires, and what level of compliance with court processes and rules can be expected. So it is also with an assessment of what constitutes, in the circumstances of a particular case, a reasonable opportunity to be heard for the purposes of ensuring procedural fairness is afforded.
(emphasis in original).
66 In my view, the applicant’s proposed procedural unfairness case is distinctly weak. Although, as the transcript confirms, he was interrupted numerous times by the primary judge, I consider that these interruptions were directed to seeking to have the primary judge better understand his case. The applicant was not prevented from presenting his case. It is notable that, on several occasions, the primary judge went out of his way to ensure that the applicant was able to present his case, including by granting several brief adjournments during the course of the hearing, as is recorded in pages 47, 50, 72, 78 and 79 of the transcript. Moreover, on numerous occasions, the primary judge put to the applicant what he understood to be the applicant’s submission and asked that the correctness of his understanding be confirmed. The applicant’s claim that he was unable properly to present his case cannot be reconciled with the fact that the hearing of his interlocutory applications took the entire day and the transcript of the hearing totals almost 100 pages. Each case must necessarily turn upon its facts, but having reviewed the transcript carefully, I do not consider that there is arguable substance in the applicant’s complaint of procedural unfairness.
Grounds 2(a), (b) and (c): self-represented status
67 The applicant complains that the primary judge made erroneous findings of fact in [112]-[114] by failing to take into account that he was self-represented and had an inadequate knowledge of litigation procedure in the FCCA, as well as suffering from serious medical conditions which affected his ability to conduct his case. He complained that erroneous findings of fact were made in [109]-[11] and [139]-[140] by the primary judge’s failure to take into account the fact that he had other proceedings on foot as a litigant in person in respect of his worker’s compensation claims.
68 There is no arguable substance in these complaints in circumstances where it is patent that the primary judge was well aware of the fact that the litigant was representing himself. It is also evident that, despite this fact, the primary judge gave considerable weight to the fact that the applicant had legal qualifications (see, for example [116] of the reasons for judgment where the primary judge referred to the evidence which established the applicant’s legal training, including the fact that he had worked for the respondent as an acting legal officer and had completed practical legal training). In the light of these matters and in light of what I have said at [52] above, it was reasonably open to the primary judge to make the findings which he did and I do not consider that the applicant has reasonable prospects under these grounds.
69 As to the applicant’s involvement as a litigant in person in the worker’s compensation proceedings, it is clear that this matter was also considered by the primary judge, as is reflected in his references to those proceedings in [130]-[135] and [137]-[140]. The primary judge found that, by initiating proceedings in respect of his worker’s compensation claim and complaining again to the AHRC, the applicant effectively set in train separate processes for seeking compensation from the respondent and then gave priority to his worker’s compensation claim, which did not provide a plausible explanation as to why he delayed in reinstating his proceeding in the FCCA. I see no arguable error in the primary judge’s approach and findings.
Grounds 2(e) and (g): opportunity to amend pleadings and failure to apply beneficial construction
70 The applicant relied on other cases in which self-represented litigants were given leave to amend a statement of claim. He complained that “the role of the court is to prevent the destruction of the unrepresented person’s case by the traps which our adversary procedure offers to the unwary and untutored party”.
71 The Court has an obligation to ensure that all parties in a hearing receive a fair trial. The applicant’s reliance upon authorities relating to re-pleading a case have little if any relevance to the applicant’s circumstances, where he was seeking to have his substantive proceedings reinstated after they had been dismissed for his non-attendance. The relevant principles are quite different, as is reflected in the primary judge’s summary in his reasons for judgment at [22]-[30]. The applicant has failed to demonstrate any arguable error in his Honour’s summary of those principles or in their application to the particular facts of his case.
72 The applicant also complained that the primary judge failed to take into account the reasonableness of the applicant’s belief that it was appropriate to communicate directly with the Registrar on 16 February 2015 in seeking an adjournment. He referred to the Notice published by the FCCA on the topic of practitioners communicating with judges’ chambers.
73 The document does not assist the applicant. It says nothing about a litigant in person making an ex parte request to a Registrar to have a proceeding adjourned. In any event, as the respondent pointed out, the applicant’s failure to make a formal application for an adjournment was not material to the primary judge’s reasoning for finding that no reasonable explanation had been provided by the applicant for his non-attendance at the hearing scheduled for 18 February 2015.
74 In my view, the applicant’s reliance upon authorities concerning the beneficial construction of remedial legislation is also misguided. The primary judge’s task was to resolve the issues before him having regard to relevant provisions of the Federal Circuit Court of Australia Act 1999 (Cth) and the FCCRs albeit in the context of substantive proceedings raising complaints of unlawful discrimination under the RD Act. I do not consider that the applicant has identified any arguable error in his Honour’s construction and application of the relevant provisions of that material.
Grounds 3(c)-(f) and 7: costs order and public interest issues raised
75 The applicant contended that the primary judge erred in failing to address and determine the legal authorities and submissions relied upon by the applicant on the issue of costs. He said that these matters were set out in [25] to [53] of his outline of written submissions dated 20 April 2016 in the FCCA which was annexed to his affidavit of 2 December 2016. In brief, the applicant submitted below that the respondent had engaged in “misconduct or unmeritorious or disentitling conduct” which should have displaced the normal rule that costs follow the event. The relevant conduct was described by the applicant as involving “commission of criminal offences by the Respondent or members of the Respondent or alternatively, wilful disregard of obligations imposed by legislation…”, including its handling of its applications for access to information under the GIPA Act. He claimed that the respondent had acted in breach of the State Model Litigant Policy for civil litigation. The applicant also contended that his case raised matters of public interest over and above his private interests.
76 The primary judge’s reasons for declining to set aside the earlier costs order are at [238]-[250] of the reasons for judgment. His Honour was well aware of the authorities relied upon by the applicant and his submissions. Indeed, at [239] the primary judge indicated that their extensive nature was inconsistent with the applicant’s assertion that he had either no or limited legal acumen.
77 The primary judge concluded that the applicant had not established any basis for departing from the usual rule that costs should follow the event. His Honour directly addressed the applicant’s claim that the respondent had engaged in misconduct and criminal conduct, describing those claims as “very serious”. It was reasonably open to the primary judge to find that the claims simply reflected the applicant’s “subjective perceptions”. He described as “fanciful” the applicant’s allegations of criminal conduct and conspiracy from unknown persons, such as those parking their cars across the street from the applicant’s house. In my view, this proposed ground of appeal does not have reasonable prospects.
78 In support of these particular grounds relating to the setting aside of the costs order, the applicant also complained that the primary judge erred in failing to give reasons for his findings at [117]. That paragraph contains a summary of the primary judge’s reasons for concluding that the applicant had failed to provide a reasonable or satisfactory explanation for his non-appearance on 18 February 2015. The applicant contended that the reference in [117] to “[f]or the reasons set out above…” disclosed error because, he contended, no reasons were given. In particular, he referred to matters which were brought to the Court’s attention concerning his unrepresented status and other matters relevant to his capacity to present his case. As I have already indicated, I do not consider that there is any arguable error in respect of the primary judge’s findings concerning the fact that the applicant was a litigant in person. The primary judge gave little or no weight to the applicant’s claims regarding the significance of his status as a litigant in person for reasons which are set out at some length in [115] and [116] of the reasons for judgment:
115 This assertion must be seen in light of other material before the Court. Dr Smith reports that (annexure “A” to the applicant's affidavit of 3 September 2015):
Mr Kirunda came to Australia as a student in 2001. He has partly completed a Master of Business Administration from the University of Technology in Sydney. He also has a graduate diploma in Australian Law from UTS Sydney as well as a graduate diploma in legal practice, also from UTS Sydney.
In 2010 Mr Kirunda obtained a Masters of Laws from the University of Sydney.
Mr Kirunda has had wide experience as a solicitor. He has also conducted legal research and assisted individuals in victims compensation and Administrative Appeals Tribunal matters. He has worked as a legal office [sic] for the Office of the General Counsel of NSW Police Force and undertaken work with the criminal records section of the NSW Police Force.”
116 Further, the applicant's Points of Claim make various references to his having worked as an acting legal officer for the respondent (see for example at page 2). Various documents attached to his complaint to the AHRC make references to the applicant having completed legal qualifications in NSW, including practical legal training (see for example at page 7 of 7 in the accompanying statement to his complaint dated 13 August 2012). One of the applicant's complaints to the AHRC was that he was treated less favourably than other legal graduates in promotion opportunities, and even further, that he had performed tasks of preparing “legal advice” (see item 4 of the applicant's “summary” to the AHRC dated 28 February 2013).
79 In my respectful view, the primary judge provided brief, but sufficient, reasons for refusing to disturb the costs order made on 18 February 2015. The applicant does not have reasonable prospects of success with these grounds.
Grounds 1 and 4: reasonable prospects and reinstatement
80 The applicant’s reliance upon Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 at 943-944 in support of his contention that, if his claim was not adequately expressed, he should have been given leave to file an amended pleading reveals a misconception which permeates his case. In particular, he appears erroneously to have assumed that the same principles apply to the striking out of a pleading or the summary dismissal of a case as to an application to reinstate a case which has been dismissed for non-attendance. The principles are not the same. One, but not the only difference, is that the applicant carries the onus in persuading the Court to reinstate his claim.
81 The applicant also complained that the primary judge erred in his fact finding in [156], [203] and [204] of the reasons for judgment. In support of that contention, he complained that the respondent had failed to respond to a subpoena served on it by him on 14 September 2014, which requested “detailed information which would assist [the applicant] in establishing the facts to prove my claim”.
82 The difficulty with this ground is that the primary judge’s assessment of the prospects of the applicant’s prospective case primarily turned on his Honour’s analysis of the Points of Claim. His Honour acknowledged that the applicant had filed evidence which was relevant to the prospects of the substantive application (see [124]) and his Honour took that material into account in various places, such as at [127]. His Honour then explained at [143] that the merits of the applicant’s substantive case had to be understood in the light of his Points of Claim. The pleadings were analysed at some length by the primary judge at [143] to [208]. As is evident from that material, a matter of particular concern to the primary judge was the failure of the applicant to demonstrate in the Points of Claim a nexus between the alleged conduct of the respondent and the applicant’s race. The primary judge found that the requisite causal nexus was absent in respect of the applicant’s claims of unlawful discrimination, victimisation and bullying or harassment. After summarising some parts of the Points of Claim relating to these matters, the primary judge expressed the following conclusion at [156]:
On any plain reading of these paragraphs, there is nothing to suggest any connection between these events, even if it were to be accepted that they occurred as the applicant asserts, and the applicant's “race”. Before the Court, the applicant's explanation was that he had a “belief” that this was the case. That is not sufficient to say that his claims have reasonable prospects of success in these proceedings. Importantly, there was no indication from the applicant that there was any other material available, which he had not presented to the Court, to provide any such indication (however, see the discussion about [51] of the Points of Claim below).
83 The primary judge then concluded at [161] that the applicant’s “belief” lacked any reasonable or rational basis, having regard to the material presented by him at that time. This is a plain reference to the further evidence which had been filed by the applicant subsequent to the orders made on 18 February 2015 and in support of his application to have his proceeding reinstated. Such material was taken into account.
84 The primary judge also identified numerous other deficiencies in the Points of Claim (see, for example, [166], [170], [175], [178], [185], [189], [190], [191] and [195]ff).
85 At [192] of the reasons for judgment, the primary judge addressed [51] of the Points of Claim, which related to the applicant’s complaint that he had not been promoted and was treated less favourably than someone with similar qualifications who was not of his race. Reference was made in [51] of the Points of Claim to particulars being given of the jobs for which the applicant had applied after subpoenaed documents were obtained. The applicant complains that it was erroneous of the primary judge to make the findings that he did in [156], [203] and [204] in the absence of the respondent’s response to that subpoena.
86 The primary judge dealt with the issue of the subpoena in [193], in the context of the applicant’s argument that it was not open to the primary judge to find that this aspect of his case had no reasonable prospects of success until he had an opportunity to provide further particularisation based upon the information he expected to be given under the subpoena. At [195], the primary judge said that, absent the last sentence of [51] of the Points of Claim, the paragraph did not have sufficient prospects of success to favour this particular part of the Points of Claim being reinstated. He emphasised that there were inadequate particulars to the relevant allegations when the Points of Claim were filed on 19 September 2014. Significantly, the primary judge then emphasised in [195] that he was not dealing with an application that the Points of Claim be summarily struck out. Rather the applicant was seeking the reinstatement of his case, including in respect of [51] and he conferred that he should the opportunity to have those allegations considered and determined at a final hearing. The primary judge did not accept those contentions. He explained that this was because he considered that the applicant had had a reasonable opportunity to prosecute his case and instead focused on his worker’s compensation case. The primary judge found that the applicant had not explained why he had been prevented from progressing his case in respect of the allegations in [51]. The primary judge was not satisfied that the applicant had offered any acceptable explanation as to why he had been unable to give “relevant substance to [51] of the Points of Claim in the time that has been available to him to do so”, with the consequence that the primary judge was unable to conclude that [51] had some prospects of success (see [197]). The primary judge made clear that he considered that none of the further material put forward by the applicant in his various affidavits indicated that he could mount a reasonable case with some prospects of success in relation to the “bare and unparticularised assertions” in [51] of the Points of Claims.
87 As to the applicant’s reliance on the respondent’s lack of response to the subpoena, the primary judge expressly found at [200] that the applicant had offered no satisfactory explanation as to why he had not pressed the outstanding subpoena in the 16 months since his proceeding was dismissed, nor in the 8 months since he had filed his application in his case. Moreover, the primary judge found that he thought it reasonable to expect that the applicant himself would have known which jobs he had applied for and nothing advanced by the applicant indicated that there was any expectation that the subpoenaed documents would provide any further basis to give particularity to his bare allegations that he was treated less favourably (see at [203]).
88 Having regard to all these matters which involve findings made by the primary judge which were reasonably open to be made, I do not consider that the applicant has reasonable prospects of challenging the primary judge’s reasons concerning the deficiencies in [51] of the Points of Claim and the applicant’s failure to pursue the unanswered subpoena.
89 The applicant also complained that the primary judge had wrongly applied the principles in Charles v Fuji Xerox Australia Ltd [2000] FCA 1531; 105 FCR 573 (Fuji Xerox) in finding at [184] and [185] that some of the applicant’s pleadings in his Points of Claim were beyond the scope of his complaint to the AHRC as terminated. This had the consequence that the affected paragraphs of the Points of Claim were put to one side by the primary judge in assessing the prospects of success of the applicant’s substantive proceeding.
90 The relevant paragraphs of the Points of Claim are [45] to [48], which relate to the applicant’s request for information in February 2013 and his claim that he had been victimised in relation to the processing of his leave entitlements, and bullying in relation to the service of documents at the applicant’s home directing him to attend a medical appointment.
91 The applicant has not persuaded me that he has an arguable case that the relevant findings by the primary judge were not reasonably open to be made. His Honour plainly appreciated that, under s 46PO(3)(b) of the AHRC Act, there need not be exact symmetry between the allegations raised in Court and those previously put before the AHRC, but the pleaded matters must arise out of the acts, omissions or practices identified in the complaint to the AHRC (at [182]). No arguable error has been demonstrated in respect of the primary judge’s identification of the relevant principles or their application to the relevant pleadings and circumstances of the applicant’s case, including his complaint to the AHRC.
Ground 6: review of costs estimate
92 The applicant contended that the primary judge erred in the following three respects:
• failing to adjudicate on the applicant’s evidence that his circumstances had changed because his house sale was shortly to be finalised and he could raise $2,000 as security for costs;
• failing to give reasons for his finding at [225] that the applicant’s psychological and physical medical conditions were not sufficient bases to extend time; and
• making an erroneous finding at [228] that there was no need to analyse the Registrar’s bill of costs prior to filling out the relevant form as it was unreasonable to be expected to challenge a document that had not been analysed by the applicant.
93 As to the first of those matters, as noted above, the primary judge’s reasons for refusing to set aside the earlier costs order as set out in [238] to [244]. Any error arising from the primary judge’s failure directly to address the applicant’s evidence regarding his changed circumstances and capacity to provide security for costs is immaterial having regard to the primary judge’s stated reasons for not disturbing the costs order. In particular, the primary judge found that the applicant had not established any basis for departing from the usual order of costs following the event. The applicant’s capacity to pay security for costs has no bearing on the matters identified by the primary judge in declining to disturb the costs order.
94 As to the second matter, it is simply incorrect for the applicant to assert that the primary judge failed to give reasons for his findings concerning the applicant’s claimed psychological state and lack of knowledge. The primary judge made a cross-reference in [225] to the reasons given earlier as to why he rejected those matters. This is an apparent reference to his Honour’s detailed analysis and findings concerning the relevant evidence and submissions at [34]-[49], [73]-[74], [104] and [107]-[111].
95 As to the third matter, the primary judge explained why he did not accept the applicant’s claim as to why he could not challenge the Registrar’s estimate of costs within time. His Honour found that the applicant had provided no reasonable or satisfactory explanation for not meeting the 21 day time period (at [227]). In particular, at [228] the primary judge highlighted that the relevant objection form (Form 128) did not require any detailed analysis of the bill of costs but simply required sufficient detail to notify an objection. His Honour concluded at [229] that, because the applicant was able to attend to drafting and filing an affidavit and his application in the case during the relevant period, he could not accept that the applicant was incapable of filling out Form 128. No arguable error has been presented in relation to these findings.
96 For these reasons I consider that ground 6 has no reasonable prospects.
Ground 8: relevance of medical evidence
97 The applicant complains that the primary judge misstated the effect of Dr Smith’s report dated 16 April 2014, by omitting reference to evidence that he would only be able to return to work provided his work-related issues can be appropriately resolved. It is difficult to see how any such error would be material. That is because, first, the primary judge plainly acknowledged that the applicant’s work-related issues may have had an affect on his mental state and condition (see, for example, [36] of the reasons for judgment). Secondly, and perhaps more significantly, any such error would not affect the primary judge’s primary finding that Dr Smith’s report did not address the applicant’s mental condition as at the time of the hearing (18 February 2015), in circumstances where it was dated 16 April 2014.
98 The applicant also complained that the primary judge erred in [41] and [43] when he concluded that there was no other evidence to establish that his medical condition, as identified and explained by Dr Smith as at 16 April 2014, continued as at either December 2014 or February 2015. As the primary judge emphasised, however, Ms Hidalgo’s report, dated 17 April 2014, reported on the applicant’s psychological condition as at that date, and not as at December 2014 or February 2015. Ms Hidalgo’s brief letter dated 23 December 2014 described in broad terms the applicant’s then current treatment, but the primary judge gave it little weight (see [12] above). As is made plain at the end of [43], these findings were made by the primary judge in response to the applicant’s claim that he was having difficulties with his attention span, but there was no persuasive evidence that this difficulty continued at the relevant times. No arguable error has been demonstrated.
99 The applicant also complained that the primary judge erred when he stated in [41] that his employment had ceased as at February 2015, when in fact it terminated on 30 June 2015. It is important to note that the primary judge referred to the applicant’s employment with the respondent having “ceased” as at February 2015. It is true that the employment was not terminated until 30 June 2015, but it remains the case that the applicant had been absent from work from February 2013. In that sense, his employment had “ceased” for all practical purposes as at February 2013. No arguable error is raised in respect of this finding.
Ground 9: no reasonable explanation for non-attendance
100 The applicant challenges the primary judge’s finding at [82] that, on 29 January 2015, the applicant changed his return travel dates to Australia to May 2015. The primary judge viewed this as significant because he concluded that, as of at least 29 January 2015, the applicant knew that he would not be returning to Australia for the scheduled hearing on 18 February 2015, but he delayed until 16 February 2015 in alerting the Registrar. The applicant sought to support this complaint by reference to documentary material which he subsequently obtained from Emirates which confirmed that his flight itinerary of 21 May 2015 was altered because of changes made by him on 12 or 13 May 2015 and not 29 January 2015. This evidence was not before the primary judge.
101 The applicant drew attention to what he described as his “oral evidence” to the primary judge that he had made a phone call to the airline during the lunch break in the hearing in the FCCA and that this clarified the email dated 29 January 2015 (which lacked any itinerary). He told the Court that he had called Emirates in the lunch break and they had confirmed that the booking for 22 May was made on 12 May.
102 In my view, the applicant has no reasonable prospects in relation to this matter. First, what is recorded in the FCCA transcript at page 92 is not “oral evidence” but rather is in the nature of a submission which was made by the applicant in his address in reply. Secondly, as the primary judge pointed out at page 92 of the transcript, evidence could not be taken from the applicant at that stage of the proceeding (at least without leave) and it had been made clear to the applicant at the outset that he had to tell the Court what material he was relying on. Accordingly, his Honour indicated that he was relying upon the information relating to the applicant’s travel plans, including the email dated 29 January 2015 which was Annexure N to his affidavit of 29 April 2016. His Honour was entitled to take that view.
103 As noted above, the applicant also relied on an email sent by him on 21 May 2015 to a member of State Parliament, copied to an investigative journalist at the Sydney Morning Herald. The email was written shortly before the applicant left for Australia via Hong Kong and contained the following statement:
Because of my ongoing litigation against NSW Police Force, I am anxious that some supposedly random incident or accident might happen to me as part of the campaign of psychological warfare against me or something worse like drugs being planted in my luggage or similar.
104 Little weight attaches to this document, written by the applicant himself, as establishing that he was prevented from returning to Australia in 2015 because of his fears. The document is entirely self-serving.
105 Nor am I persuaded that the applicant has identified any reasonable prospect of challenging the primary judge’s findings concerning the applicant’s concerns that he was being targeted. The applicant has identified no arguable error in respect of the primary judge’s relevant reasoning in relation to this topic, including what is stated at [35] to [75] and [77] to [106].
106 The applicant contended that the primary judge erred in not differentiating between the applicant’s explanation of the reason for his inability to return to Australia to attend the hearing as opposed to his incapacity to attend and participate in the hearing. The basis for the distinction is difficult to understand, not the least because, as the primary judge noted in [73] of his reasons for judgment, the applicant himself in seeking an adjournment of the proceedings on 18 February 2015 explained that this was “due to deterioration of my ill-health making me unable to comply with previous orders of the Court, unable to return to Australia and unable to attend Court”.
107 Finally, in respect of ground 9, the applicant complains that the primary judge erred in stating at [84]:
This must also be seen in light of the opportunity to have possibly secured a different outcome (to that which occurred on 18 February 2015) if the applicant had made some relevant approach at an earlier time, even if it was to appear at the hearing of the respondent's AIC by telephone, and seek to explain his reasons for any adjournment. In all, I find that this second element does not provide a satisfactory explanation for the non-attendance.
108 The applicant complains that in fact he approached the issue of an adjournment at an earlier time, by seeking the respondent’s consent to an adjournment on 30 December 2014, but it was rejected. His Honour was well aware of that approach. He made express reference to it at [61] and [65]. The reference to “relevant approach at an earlier time” is plainly a reference to the applicant leaving it until 16 February 2015 to contact the Court regarding his adjournment request and not, for example, arranging to appear by telephone. There is no arguable error to warrant a grant of leave.
Ground 10: significance of legal qualifications and experience
109 The applicant complains that the primary judge’s findings at [113] to [117] were based on an erroneous assumption that a person with legal qualifications would not make any procedural error in relation to practice and procedure in the FCCA. He also complains that the primary judge failed to take into account that the applicant had only just found out the procedure for filing an application in a case in the FCCA after receiving advice from Justice Connect in August-September 2015, which he said he had explained in his affidavits below and in his oral submissions.
110 For the reasons given above, I do not consider that the applicant has reasonable prospects of challenging the primary judge’s analysis and findings concerning the significance of the applicant’s legal qualifications and experience.
Ground 11: failure to identify service denied
111 The applicant complains that the primary judge erred in his findings at [172]-[174] concerning the applicant’s failure to identify in his Points of Claim the service being provided by the respondent with reference to the relevant legislation. The applicant contends that the services were identified in his complaint to the AHRC. The difficulty, however, is that the primary judge was correctly insisting that the services be appropriately identified in the applicant’s Points of Claim. He held at [175] that they were not. I can see no arguable error in relation to this aspect of the reasons for judgment.
112 As to the applicant’s complaint that the primary judge failed to take into account further oral submissions made by him at pages 17 to 24 of the transcript, those submissions do not relate to the omission in the Points of Claim to identify the relevant service. Rather, they relate to the primary judge’s concerns regarding the lack of a causal nexus between the conduct complained of and the applicant’s race.
Ground 12
113 In his outline of written submissions, the applicant said that he would develop this matter at the hearing. No submission was made by him at the hearing in relation to ground 12, nor did he identify to what matter this ground related. Accordingly, the matter can be taken no further. It takes sufficient prospects to warrant a grant of leave.
Conclusion
114 For these reasons, leave was granted to the applicant to adduce the further evidence as sought by him in his interlocutory applications filed on 17 and 21 March 2017. But the interlocutory application filed on 2 December 2016 seeking an extension of time and leave to appeal should be dismissed.
115 The applicant did not seek the costs of the 17 and 21 March 2017 applications. As to the 2 December 2016 application, as matters stated at present, there is no evident reason why the normal principle should not apply and the applicant be ordered to pay the respondent’s costs as agreed or assessed. I will, however, give leave to the applicant to file written submissions within seven days hereof (not to exceed five pages in length) if he wishes to contend that some other order should be made as to costs. In the event that he does so within that time, the respondent has a further seven days to file and serve its written submissions not exceeding five pages in length. If there is a dispute, the matter of costs will then be determined on the papers.
116 Orders will be made accordingly.
I certify that the preceding one hundred and sixteen (116) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths. |
