FEDERAL COURT OF AUSTRALIA

Reurich v Sureway Employment and Training Pty Ltd [2018] FCA 680

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for an extension of time under s 46PO(2) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) be dismissed.

2.    The amended originating application under the AHRC Act be dismissed.

3.    The applicant pay the first, second, fifth and sixth respondents’ costs of the proceeding.

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    The applicant, Peter George Reurich, seeks an extension of time pursuant to s 46PO(2) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) to make his application under that Act.

2    Mr Reurich lodged a complaint with the Australian Human Rights Commission (Commission) against Sureway Skills Training Pty Ltd alleging unlawful discrimination under the Disability Discrimination Act 1992 (Cth) (DD Act) which was terminated by the Commission on 11 May 2016. Pursuant to s 46PO(2), in the absence of further time being allowed by the court, Mr Reurich had until 10 July 2016 to make his application to this Court or the Federal Circuit Court of Australia.

3    Mr Reurich lodged the originating application commencing this proceeding on 16 November 2017 which was 18 months and 5 days after the termination by the Commission of Mr Reurich’s complaint and 16 months and 6 days after the last day permitted by s 46PO(2) of the AHRC Act for the making of such an application. With the leave of the Court Mr Reurich subsequently filed an amended originating application in which he corrected the name of the first respondent.

4    Mr Reurich has nominated a number of respondents to the proceeding – Sureway Employment and Training Pty Ltd (Sureway), Lisa Nelson, Emma Brown, Caitlin Weeks, Andrew Roberts, Katrina Gain, Ms Jackson and others from Sureway, and “The Huskisson's Police Cody & others who attended and made wrong directions to me on those occasions in and between 2014 & 2016”. Only Sureway, Ms Nelson, Mr Roberts and Ms Gain, respectively the first, second, fifth and sixth respondents (who I will collectively refer to as Respondents), have appeared. The remaining respondents who, with the exception of the eighth respondent, I understand are former employees of Sureway have not been served.

5    The Respondents oppose Mr Reurich’s application for an extension of time.

background

6    Mr Reurich lodged a complaint with the Commission in which:

(1)     at p 4 he noted that his complaint was about both an organisation and an individual. Under the heading “Organisation” he nominated “Sureways Vincentia” and under the heading “Individual” he nominated Miss Lisa “and another supervisor and others” and stated that he did not know their last names;

(2)    under the heading “What is the complaint about?” he noted that he had been discriminated against because of his disability and, by checking the relevant boxes, referred to his assistance animal, harassment, that he was discriminated against because of his age, that his human rights had been breached by a Commonwealth government body and that he had been treated unfairly because of another reason, including victimisation; and

(3)    under the heading “Details of the complaint” Mr Reurich noted that the alleged events were said to have happened at “11.00 am Friday 5th 2015” and included a description of the events the subject of his complaint.

7    The Commission provided a copy of Mr Reurich’s complaint to Sureway on 24 July 2015 and Sureway provided its response to the Commission on 18 September 2015.

8    By letter dated 11 May 2016 addressed to Mr Reurich, a delegate of the president of the Commission informed Mr Reurich of her decision to terminate his complaint under s 46PH(1)(i) of the AHRC Act “against Sureway Skills Training Pty Ltd, alleging disability discrimination and victimisation under the [DD Act]” because she was satisfied that there was no reasonable prospect of the matter being settled by conciliation. That letter thereafter stated:

The AHRCA says that after a complaint is terminated, the person affected by the alleged discrimination may apply to the Federal Circuit Court of Australia (FCCA) or the Federal Court of Australia (FCA) to have the allegations decided by the court. Information about the court or the court process is available from a court registry or from their websites at www.federalcircuitcourt.gov.au and www.fedcourt.gov.au.

…

You must apply to the FCCA or the FCA within sixty (60) days of the date on the Notice of Termination.

(original emphasis)

9    A notice of termination dated 11 May 2016 was enclosed with the Commission’s letter. It identified Mr Reurich as the complainant and Sureway Skills Training Pty Ltd as the respondent and relevantly stated that:

This complaint alleging unlawful discrimination and victimisation under the Disability Discrimination Act 1992 (Cth), has been terminated under section 46PH(1)(i) of the [AHRC Act] as I am satisfied there is no reasonable prospect of the matter being settled by conciliation.

10    As noted above at [3], on 16 November 2017 Mr Reurich lodged the originating application with the Court in which, under the heading “Extension of time”, Mr Reurich states (as written):

The Applicant asks for an extension of time to lodge this application because I am late as I have suffered great depression and Anxiety and was confused about the Termination (can be verified by emails I have continually asked the Human Rights commission about it) and when I did seek to sort it I was told by Self representation people from Justice connect that I should not proceed. However I do want to seek justice the bullying as what happened to me is still happening to me others and even today I am being discriminated against by Sureway by the treatment they continue to dish out to myself and boofhead my assistance Dog . My Psychologist believes I have autism or asperses syndromes and yet I have been seeking employment with some success but mostly short lived because of no Sureway case workers to consult or support me because of the restrictions unfairly even illegally exercised on me.

evidence

11    Mr Reurich relies on an affidavit affirmed by him on 19 February 2018 in support of his application for an extension of time. In that affidavit he relevantly said that he was aware of the 60 day rule so he “cannot explain why [he] did not get a grip as [he] knew the importance of the time limit”. He also said:

1.    However this is why I am so perplexed that I either over looked the Termination email or missed it in my emails because it was sent to me believe; or was my brain not functioning as I do know that it was foremost in my mind to react immediately to a Termination and start the Application soon as possible IF I had Known

2.    My life is extremely busy and unordered at tht time ;Cars breaking down fixed and eventually blew up ; two weeks on pedal bike before getting a new wheels (OLD CAR) ; chasing work ;actually getting work employment then computer crashed a number of time I think 3 times in the last few years ;I have proof from my IT man whom repaired it 'and payment records and email

3.    About that time of the Termination I actually sent a email for a meeting with my psychologist Tamara complaining that brain was not working properly and I was forgetting important things and not remembering properly due to stress of my job and other factors perhaps? Annexure "A2"

4.    Also I was receiving emails from the Human Rights Commission apologising to me for the length of time these complaints were taking asking me to be patient and I was also sending extra information to enlighten them. It became all to confusing for me

12    Mr Reurich’s affidavit included the following annexures:

(1)    an email dated 5 May 2016 from Mr Reurich to Tamara Lee who, according to Mr Reurich, is his psychologist, in which he wrote:

Job going OK

memory is stretched; I forget things and have to check my self to much     stress had been bad but better now; boos tell s me to not ring tradies; I give them the shits; I have taken this on board; he wants me to do more Quantities and track jobs so I have come up my tracking thing in attachment ; almost 4 weeks ;

Can you fit me in as I have this JBC court thing and I may need another letter from you or affidavit about my integrity and perhaps I should see that head shrink soon; I can possibly afford him now; Boof loves going to work and the bosses and the office girls love him

(2)    an email dated 21 June 2017 from Justice Connect to Mr Reurich in which Alexandra Farmer, a senior lawyer in Justice Connect’s self-representation service, said:

I refer to our telephone conversation today.

For the Self Representation Service to properly assess your potential claims against the two employment agencies, it is important that we review any documents you have from them - either correspondence they have given or sent to you or the FOI-documents you have referred to. At the moment we have only reviewed your complaint material.

As discussed, it would be best if we could also review of copy of the reply Sureways provided to the AHRC. The AHRC notice of termination in that matter indicates Sureways' reply was provided to the AHRC on 18/09/2015 and that the AHRC sent you a copy of the reply on 16/10/2015. I note you said you don't recall receiving that reply but maybe if you check your emails from around that time (if you still have them) you might find it there. Alternatively you could contact the AHRC to check whether they would be willing to re-send you a copy.

If you are able to send through these further documents, we'll have another look and advise what assistance, if any, we can provide.

Please remember that the time limitations to make a human rights application to the federal courts to determine both the Sureways and Campbell Page matters have elapsed and you will need to seek and extension of time in both if you decide to proceed. For this reason it is important not to delay any further.

(emphasis added)

In relation to Ms Farmer’s email, Mr Reurich deposed that:

Justice Connect refused to help me file because I was late ;however this is about the time I realised something was amiss and I sent Hein from Human Rights commission email requesting the Termination email as I could not find it on my computer ;must have deleted it by accident So I tried to correct the mistake June/July for both … and Sureway

13    In his affidavit Mr Reurich also addresses the substance of his claim against Sureway and says that he has “a strong case of complaint against the respondents”. Mr Reurich describes what he says Sureway has done and various interactions with Sureway.

14    Mr Reurich relies on a DVD which contains three videos that he took of interactions with Sureway – one recording of a telephone conversation and two recordings of his attendances at Sureway’s premises. Although the date stamps on the videos indicate that they were recorded in 2008, the recordings appear to include an attendance on 5 June 2015 which it seems is the date on which the alleged conduct the subject of Mr Reurich’s complaint and this proceeding took place. Sureway objected to the tender of the DVD on the basis that it was not relevant for the purpose of determining the application for an extension of time. I reserved my ruling on the admission of the DVD into evidence. Sureway accepted that given the nature of its objection I would need to view the DVD in order to rule on its admissibility. Having done so, I reject Sureway’s objection and allow the DVD into evidence as an exhibit on Mr Reurich’s application. It is relevant insofar as it depicts the events which took place on the date that the alleged unlawful discrimination took place and Mr Reurich’s interactions with Sureway’s employees.

15    The Respondents rely on an affidavit affirmed by Andrew Finlay Yahl on 3 April 2018. Mr Yahl gives evidence that Ms Brown, Ms Weeks and Ms Jackson, the third, fourth and seventh respondents respectively, are former employees of Sureway who resigned during what Mr Yahl describes as Mr Reurich’s period of delay. I infer this “period” to be that commencing after the end of the 60 day period following the termination of Mr Reurich’s complaint by the Commission and ending on the day that Mr Reurich made his application, 16 November 2017. According to a letter dated 16 January 2018 to Mr Reurich from Bartier Perry, the solicitors for the Respondents, Sureway does not have current addresses for Ms Brown, Ms Weeks or Ms Jackson.

16    Mr Yahl has also annexed to his affidavit copies of the material that was provided to the Commission by Sureway in its response to Mr Reurich’s complaint.

legal principles

17    Section 46PO of the AHRC Act relevantly provides:

46PO    Application to court if complaint is terminated

(1)     If:

(a)     a complaint has been terminated by the President under section 46PE, paragraph 46PF(1)(b) or section 46PH; and

(b)     the President has given a notice to any person under subsection 46PH(2) in relation to the termination;

any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Circuit Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.

…

(2)     The application must be made within 60 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows.

…

18    In considering whether to grant an extension of time under s 46PO(2) of the AHRC Act the three principal matters for the Court to take into account are the explanation for the delay; any prejudice to the respondents, including any prejudice to them in defending the proceeding occasioned by the delay; and whether the applicant has an arguable case: see Vergara v Living and Leisure Australia Ltd [2013] FCA 775 (Vergara) at [3] (Davies J).

19    In Vergara there was evidence before the Court that Mr Vergara, the applicant for an extension of time, had been involved in another legal matter in which he was being sued for damages for a substantial sum of money and by which he “felt totally crippled”. As well as the legal proceeding, he was in full time employment and had family commitments. Davies J found at [12] that, although she accepted Mr Vergara’s explanation for not making the application while the other litigation was on foot, she did not consider that he had an acceptable excuse for waiting almost three months after the conclusion of its hearing before filing his application. Her Honour found that full time work and family commitments were not acceptable excuses for the delay. She observed that “[t]ime limits are not to be ignored merely because of daily exigencies” and described the further delay, being the period after the hearing of the other legal matter had concluded, as “inexcusable, particularly as the delay in making the application was already very significant”: at [12].

20    In Tang v AHG Services (NSW) Pty Ltd [2011] FCA 1532 Jagot J considered an application for an extension of time under s 46PO of the AHRC Act. There the application was filed some 17 days late. The applicant’s evidence was that it took her some time to receive the termination letter from the Commission and then a further extended period to have the letter explained to her due to difficulties understanding English and for her to understand that she had further legal avenues to pursue which would require her to seek legal representation. Thereafter she had a number of interviews with her newly appointed lawyer but it was some time before she was able to fully brief her lawyer and make a decision to pursue the proceeding. The applicant also gave evidence that she found the matters involved to be “psychologically traumatic”.

21    At [14] Jagot J said that, while she had the power to extend the time for making an application to the Court, there had to be some material sufficient to persuade her that the discretion to do so should be exercised in the applicant’s favour. Her Honour noted that while the delay was not particularly long, it was also not a short delay. In light of the 60 day period available, Jagot J was not persuaded, in all of the circumstances, that the discretion should be exercised in favour of the applicant.

consideration

Delay

22    Mr Reurich was aware of the 60 day time limit. His explanation for the delay seems to be that he overlooked the termination notice from the Commission and/or because his “brain was not functioning”. He also submitted that perhaps relevant reminder emails went into his junk mail box and he did not know to check there. He described his life as extremely busy and disordered at the time.

23    That Mr Reurich’s life was busy and disordered is no more than a manifestation of the “daily exigencies” of his life. The fact that Mr Reurich may have overlooked the termination notice from the Commission, perhaps because he was busy or because of the disorder in his life is not, in my opinion, an acceptable explanation for the delay. Mr Reurich knew that he had made a complaint to the Commission. It was incumbent on him to follow up and monitor communications from the Commission about it.

24    On 5 May 2016 Mr Reurich described his memory as “stretched” and said that he forgot things. At that time he sought out an appointment with Tamara Lee, who he described as his psychologist. But, even if I accept this evidence and that Mr Reurich was having some memory difficulty in early May 2016, it does not explain the delay following the 60 day period after receipt of the notice of termination.

25    As is evident from the email from Ms Farmer at Justice Connect referred to at [12(2)] above, by 21 June 2017 Mr Reurich was well and truly aware of the fact that his complaint had been terminated by the Commission and, indeed, that he was already out of time in making an application to the Federal Circuit Court or this Court. Thus, even if I was satisfied that Mr Reurich had an acceptable explanation for his delay up until that point in time, which I am not, he has provided no explanation for the further delay of nearly five months up until the date he lodged his application with this Court.

26    In my opinion, Mr Reurich has not provided a satisfactory explanation for the significant delay in making his application to the Court.

Prejudice

27    The Respondents submitted that they have suffered prejudice as a result of Mr Reurich’s delay in commencing the proceeding. That prejudice is said to be caused by two things: first, because certain employees relevant to the claim, Ms Brown, Ms Weeks and Ms Jackson, have resigned from Sureway during the period of the delay and Sureway does not have current addresses for those former employees; and secondly, because the passing of time will have caused the memories of relevant witnesses to fade.

28    A statutory declaration made by Ms Weeks was provided to the Commission by Sureway as part of the material it relied on in answer to the complaint. On that basis it seems that Ms Weeks, who is also a named respondent to the proceeding who Mr Reurich has been unable to serve, is of some importance to the events that are alleged to have occurred.

29    I accept that in some circumstances the lack of availability of relevant witnesses would cause prejudice to the Respondents. Ms Brown, Ms Weeks and Ms Jackson are no longer employed by Sureway and Sureway does not have current addresses for them. While there is no evidence of what attempts, if any, have been made to locate them, had the proceeding been commenced in time Sureway may have taken steps to maintain contact with the departed employees and to secure their availability to assist. Having not maintained contact with those former employees there is a risk of prejudice if they cannot be located. Given the state of the evidence I would put the matter no higher.

30    Sureway acknowledges that the fading of witnesses’ memories by the passing of time will not ordinarily, of itself, be sufficient to show real prejudice: see Vergara at [16]. However, it submitted that in this case because Mr Reurich’s delay is substantial it must be presumed to have caused significant failings of the recollections of relevant witnesses. I accept that Mr Reurich’s delay in commencing the proceeding is significant, particularly when viewed in light of the fact that the AHRC Act permits 60 days to make an application. Despite that, I am not satisfied the fading of potential witnesses’ memories in the intervening period of approximately 16 months would cause the prejudice alleged. It is not uncommon that in giving evidence potential witnesses have to recall events which took place sometime before yet they are still able to remember a good deal and, as Davies J noted in Vergara at [16], reliable evidence of events long past is given daily in courts.

31    Having regard to the matters raised by the Respondents there is no more than a risk of prejudice to them occasioned by the delay.

Does Mr Reurich have an arguable case?

32    There are two aspects to this issue – the first is whether, putting to one side that Mr Reurich made the application outside the 60 day period permitted by s 46PO(2) of the AHRC Act, the Court otherwise has jurisdiction to determine the proceeding as against Ms Nelson, Mr Roberts and Ms Gain (the second, fifth and sixth respondents) and the second, concerns the merits of the case against Sureway.

33    In relation to the jurisdictional issue, s 46PO(1) of the AHRC Act permits an affected person to make an application to this Court or the Federal Circuit Court alleging unlawful discrimination against one or more of the respondents to the terminated complaint.

34    In Eliezer v University of Sydney (2015) 239 FCR 381 Perry J considered the same issue that has been raised by Ms Nelson, Mr Roberts and Ms Gain before me but in the context of an application for summary dismissal. At [43] her Honour said:

The term “respondent, in relation to a complaint” is defined in s 3 of the AHRC Act to mean “the person or persons against whom the complaint is made”. As such, on an ordinary reading of the provision, s 46PO makes no provision for an application to be made to this Court for unlawful discrimination against any respondents other than the respondents to the complaint terminated by the President: Servcorp at [5]-[6], [48]-[49] and [56] (Perry J).

35    At [49] her Honour referred to the decision of a Full Court of this Court in Grigor-Scott v Jones (2008) 168 FCR 450 observing that:

I have no doubt that the ratio in Grigor-Scott, insofar as the Full Court held the Court lacked jurisdiction despite the joinder of Mr Grigor-Scott, was that s 46PO(1) provided only for a statutory cause of action against any respondents to the terminated complaint and not, therefore, against Mr Grigor-Scott. Thus after reiterating at [69] that s 46PO does not authorise an affected person to bring a proceeding against anyone other than a respondent to the terminated complaint, the Full Court held at 465-466 that:

70. The primary judge made findings that Mr Grigor-Scott was responsible for publishing on the Website the material about which Mr Jones complained to the Commission. Those findings of the primary judge, to which Mr Jones referred in his written submissions cited above, were not challenged by Mr Grigor-Scott on the hearing of the appeal. Nevertheless, the President did not refer to Mr Grigor-Scott as the respondent.

71. Section 46PO(1) authorises an application to the Federal Court alleging unlawful discrimination by one or more of the respondents to the terminated complaint. The question is whether Mr Grigor-Scott can fairly be described as a respondent to the complaint that was terminated by the President by the notice of 9 February 2005. On a fair reading of the notice and the letter outlining the President’s reasons, it cannot be said that Mr Grigor-Scott was ever a respondent to the complaint. It may be that the complaint was never properly constituted. Be that as it may, the President quite clearly did not treat Mr Grigor-Scott as the respondent to the complaint. Rather, the President referred at all times to Bible Believers’ Church as the respondent.

(original emphasis)

36    In Vergara at [22] Davies J also considered the jurisdictional issue posed by s 46PO(1) and held that s 46PO(1) of the AHRC Act only allows an application to this Court or to the Federal Circuit Court alleging unlawful discrimination “by one or more of the respondents to the terminated complaint”. Her Honour, citing Jandruwanda v Regency Park College of TAFE [2003] FCA 1455 at [11] (Selway J), found that, as one of the respondents was not a respondent to the terminated complaint, s 46PO(1) precluded an application being brought against it for unlawful discrimination.

37    The only respondent to the terminated complaint was Sureway Skills Training Pty Ltd. So much is clear from the complaint made by Mr Reurich to the Commission in combination with the Commission’s letter dated 11 May 2016 informing Mr Reurich of the decision to terminate his complaint under s 46PH(1)(i) of the AHRC Act “against Sureway Skills Training Pty Ltd” and the notice of termination dated 11 May 2016 which identified “Sureway Skills Training Pty Ltd” as the only respondent to the complaint. Sureway accepts and takes no issue with the fact that its name was wrongly recorded by the Commission.

38    While Mr Reurich’s complaint nominated both Sureway and certain individuals as respondents, those individuals were not identified with any clarity and it is clear that as the complaint proceeded the Commission treated it as being a complaint against Sureway only. There is no evidence that Mr Reurich took issue with that approach or at any stage attempted to amend his complaint. In any event, as I have already observed and as is clear from the evidence, the only party to the terminated complaint was Sureway.

39    Thus, as Ms Nelson, Mr Roberts and Ms Gain were not respondents to the terminated complaint, s 46PO(1) of the AHRC Act precludes an application being brought against them for unlawful discrimination.

40    I turn then to consider whether there is an arguable case against Sureway. Mr Reurich’s complaint is not easily understood or well particularised but, having regard to the originating application and the material before the Court, it appears to concern events which allegedly took place at Sureway’s premises in Vincentia on 5 June 2015. In the originating application Mr Reurich claims unlawful discrimination under the Age Discrimination Act 2004 (Cth) (AD Act), the DD Act and the Sex Discrimination Act 1984 (Cth) (SD Act).

41    An application made to the Court or the Federal Circuit Court must allege the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint or must arise out of the same (or substantially the same) acts, omission or practices that were the subject of the terminated complaint: s 46PO(3) AHRC Act. The terminated complaint was in relation to alleged breaches of the DD Act. It was not in relation to breaches of the AD Act or the SD Act. Further, as Sureway submitted, Mr Reurich has not pleaded any factual basis upon which an alleged breach of those Acts could be made out. Based on the matters set out in the originating application the alleged unlawful discrimination is based on conduct which appears to concern the treatment of Mr Reurich and his dog, Boofhead.

42    There are two letters in evidence which are relevant to the claim made by Mr Reurich. They are both letters from Sureway to Mr Reurich dated 28 November 2014 (November Letter) and 5 June 2015 (June Letter) respectively.

43    It is convenient to first refer to the June Letter as it was sent on the date of the alleged incident giving rise to Mr Reurich’s complaint. It provides:

Further to our correspondence of 28th November 2015, we advise that

1.    You are not required to attend any appointments at Sureway premises. Instead, Sureway will contact you to perform employment services by phone.

2.    Further correspondence regarding your next rescheduled appointment will be forwarded to you via mail. Reminders for future appointment with Sureway will be sent to you via SMS.

3.    You are not permitted to attend any Sureway Office at any time, or contact any office by phone. Should you have any work or employment services related enquires or requests, you may contact Sureway via the email address reception@sureway.com.au

4.    Any other form of contact with other Sureway staff is not permitted

5.    Aggressive or abusive behaviour towards Sureway staff will not be accepted

6.    Any threats as made to Sureway staff will be taken seriously and referred to Police immediately

7.    Failure to comply with any of the above arrangements may result in compliance action, including payment penalties, being undertaken

These arrangements will apply from 5th June 2015 to 30th June 2015

44    The November Letter, inadvertently referred to in the June Letter as bearing the date 28 November 2015, relevantly provides:

Further to the above, we confirm future employment services will be provided to you on the following basis. Please note that the items underlined below have been updated since our correspondence of 14th November 2014.

1.    Aggressive or abusive behaviour towards Sureway staff will not be accepted

2.    Any threats as made to Sureway staff will be taken seriously and referred to Police immediately

3.    You are not required to attend any appointments at Sureway premises. Instead, Sureway will contact you to perform employment services by phone. These calls will be made by Katherine Giles to your nominated contact number, which is currently 0425 251 046.

4.    Further correspondence regarding your next rescheduled appointment will be forwarded to you via mail. Reminders for future appointment with Sureway will be sent to you via SMS.

5.    You are not permitted to attend any Sureway Office at any time, or contact any office by phone. Should you have any work or employment services related enquires or requests, you may contact Sureway via the email address katherinegiles@sureway.com.au

6.    Any other form of contact with other Sureway staff is not permitted

7.    Failure to comply with any of the above arrangements may result in compliance action, including payment penalties, being undertaken

These arrangements will be apply from 13th November 2014 to 13th May 2015.

(original emphasis)

45    Relying on the November Letter and the June Letter (among other things) Sureway submitted that the reason Mr Reurich was asked to leave its premises on 5 June 2015 and on earlier occasions was because of what it described as his aggressive, abusive, threatening and harassing behaviour towards its employees. In other words it submitted that it had a justifiable reason which did not involve any discriminatory behaviour towards Mr Reurich or Boofhead. It also submitted that the video footage relied on by Mr Reurich evidences the alleged behaviours of Mr Reurich.

46    Mr Reurich submitted that he had been falsely accused of threatening behaviour and that one instance of conduct on which Sureway relies, concerning a knife, was an invention on the part of its employees.

47    There seem to me to be factual issues that require resolution, including but not limited to the nature of the interaction between Mr Reurich and Sureway and the reason for Sureway issuing the June Letter which banned Mr Reurich from attending Sureway’s premises and prescribed the way in which Mr Reurich was to interact with Sureway staff in relation to its provision of services. Those are issues which cannot be resolved on the material available to the Court on this application.

conclusion

48    While there seems to be a factual dispute between Mr Reurich and Sureway which, if resolved in Mr Reurich’s favour, may well be a foundation for his claims of unlawful discrimination under the DD Act, I am not persuaded that I should exercise my discretion and grant the extension of time sought by Mr Reurich.

49    First, this Court does not have jurisdiction to determine the claim against Ms Nelson, Mr Roberts and Ms Gain. Secondly, there is a risk of some prejudice to the Respondents occasioned by the delay, although this factor does not carry much weight given the lack of evidence in relation to efforts taken to locate potential witnesses. But finally and critically, I am not satisfied that Mr Reurich has provided an adequate explanation for the lengthy delay in making his application after the expiration of the 60 day period following the termination of his complaint to the Commission. The lack of adequate explanation is exacerbated by there being no explanation proffered for the period of delay following his communication with Justice Connect in June 2017 until November 2017 when Mr Reurich finally made his application to the Court.

50    Mr Reurich’s application for an extension of time pursuant to s 46PO(2) of the AHRC Act is refused and should be dismissed. The practical effect of a refusal to extend time is that Mr Reurich cannot prosecute his application and the proceeding is at an end. Accordingly, I will also make an order that the amended originating application filed by Mr Reurich be dismissed.

51    The Respondents seek an order that Mr Reurich pay their costs of the proceeding. Given the conclusion I have reached, I will make that order.

Associate:

Dated:    17 May 2018

SCHEDULE OF PARTIES