FEDERAL COURT OF AUSTRALIA

Reurich v Vincentia Golf Club Pty Ltd [2018] FCA 681

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 46PO(2) of the Australian Human Rights Commission Act 1986 (Cth) the time within which the applicant can make his application is extended to 29 November 2017.

2.    Pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth) the proceeding as against the fifth and sixth respondents is summarily dismissed.

3.    The applicant pay the fifth and sixth respondents’ costs of the proceeding, including the costs of their interlocutory application filed on 5 February 2018.

4.    The balance of the proceeding be listed for a case management hearing on 7 June 2018 at 9.30 am.

5.    To the extent they have been served, the applicant notify the first to fourth respondents of the date of the case management hearing referred to in Order 4.

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    Peter George Reurich, the applicant, commenced this proceeding by filing an originating application under the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) against Vincentia Golf Club Pty Ltd (Vincentia Golf Club) as first respondent, St Georges Basin Country Club Vincentia as second respondent, Hanna as third respondent, Pamn as fourth respondent, Senior Constable Simon Ambrose as fifth respondent and Sergeant Bradley Taylor as sixth respondent (Originating Application).

2    Senior Constable Ambrose and Sergeant Taylor are currently the only active respondents in the proceeding. As at the date of the first case management hearing, there was an issue about the identity of the first and second respondents – the Vincentia Golf Club, which is now in liquidation, and the St Georges Basin Country Club Vincentia which it seems no longer exists as a result of an amalgamation. In addition, the third and fourth respondents, Hanna and Pamn, had not been served.

3    By way of interlocutory application filed on 2 February 2018 Senior Constable Ambrose and Sergeant Taylor seek an order pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (FC Act) and r 26.01 of the Federal Court Rules 2011 (Cth) (Rules) that judgment be given for them or, in the alternative, an order that the Originating Application, insofar as it makes a claim against them, be struck out (Interlocutory Application).

background

4    On 10 October 2016 Mr Reurich lodged a complaint with the Australian Human Rights Commission (AHRC) alleging unlawful discrimination under the Disability Discrimination Act 1992 (Cth) (DD Act). That complaint, which was made by email from Mr Reurich to “Info Service” with subject line “Concerns about Vincentia Golf Club Limited and NSW Police”, stated:

1.    I wish to raise concerns about Vincentia Golf Club Limited (Golf Club) of disability discrimination. I also wish to raise concerns about NSW Police for inciting/instructing the doing of an unlawful act towards myself. Commander Todd Sweeney of Huskisson Police told me that the policeman is not your friend and that Simon Ambrose (police officer) does not like me. He refused to take action of an assault towards me for which I gave him the video evidence of from an earlier matter. Why? Some body or bodies are telling lies.

2.    I have anxiety and depression issues and have a licensed assistance animal called `Boofhead'. It also appears that my psychologist feels it appears that I suffer or show symptoms from Autism or Asperger's and wants me tested for this. She has also observed that my well being and mental health has markedly improved with Boofhead.

3.    In late 2015, I attended the Golf Club on a Saturday. I was told by 'Rolfe', a previous Golf Club supervisor or manager, that even if the Golf Club was closed (not trading), I was able to use the breathalyser machine. I had done this on two or three previous occasions without any issue from staff or cleaners. Golfers use the facilities earlier in the mornings to go to the toilet or get snacks from the vending machines.

4.    Later that day, ‘Deb' the cleaner screamed at me to leave as the Golf Club was closed. When I tried to explain why I was only there to use the breathalyser machine, she told me to get out with my dog. She was scary yelling at me, so I left. She told me that there was a banning order placed on me by the NSW Police.

5.    A few hours later I approached the Golf Club again for an explanation and was told by Deb and 'Pam', another senior staff member, that 'Brad Taylor', a police officer, told them that I was banned from the Golf Club.

6.    I then approached Mr Taylor in the main street of Huskisson who confirmed that he had asked the Golf Club to put a banning notice on me. He was condescending toward me and quite aggressive and unprofessionally rude.

7.    Later that week, I returned to the Golf Club. 'Hannah', the manager, told me that I was now allowed in but not my dog. It appears this happened after I spoke with Mr Taylor. I contacted Commander Sweeney about the ban at Mr Taylor's direction, who told me he would ask Mr Taylor about it, but assured me that it was not true that Mr Taylor would do this. Commander Sweeney told me that he would get back to me. This never happened. On another occasion, Hannah told me that Mr Taylor and Mr Ambrose told her not to let Boofhead on the Golf Club premises.

8.    Hannah told me she had this police order or direction in writing and I asked her to send this to my email. I never go it.

5    By letter dated 29 September 2017 a delegate of the President of the AHRC informed Mr Reurich that she had decided to terminate his complaint under s 46PH(1)(i) of the AHRC Act against “The Country Club Vincentia (formerly known as Vincentia Golf Club Limited) (the Club) and the State of New South Wales (NSW Police Force) alleging disability discrimination and incitement to do an unlawful act of discrimination under the [DD Act]”. The delegate decided to terminate the complaint under s 46PH(1)(i) because the parties could not agree on how to resolve the complaint after attending a conciliation and, accordingly, she was satisfied that there was no reasonable prospect of the matter being settled by conciliation. The letter also relevantly stated that:

The [AHRC Act] 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…

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

(original emphasis)

6    Enclosed with the letter was a notice of termination under s 46PH(2) of the AHRC Act dated 29 September 2017 (Notice) which:

(1)    named The Country Club Vincentia (formerly known as Vincentia Golf Club Limited) and State of New South Wales (NSW Police Force) as the respondents to the complaint;

(2)    stated that the complaint under the DD Act had been terminated under s 46PH(1)(i) of the AHRC Act as the delegate was satisfied that there was no reasonable prospect of the matter being settled by conciliation; and

(3)    noted that the complaint was received on 10 October 2016 and had been finalised under the legislative provisions of the AHRC Act that were in force prior to 13 April 2017.

7    Mr Reurich had, subject to the Court allowing further time, 60 days after the date of issue of the Notice to make his application to this Court: s 46PO(2) of the AHRC Act. He lodged the Originating Application on 29 November 2017 which was 61 days after the date of issue of the Notice. Therefore Mr Reurich requires an extension of time under s 46PO(2) of the AHRC Act.

8    The Originating Application includes the following under the heading “Details of claim under the [AHRC Act]” (as written):

1.    [Describe the discrimination you are complaining of. (The unlawful discrimination must: (a) be the same or substantially the same as the discrimination that was the subject of the complaint terminated by the Australian Human Rights Commission; or I was told by Deb ,the cleaner &Pamn a senior Vincentia Golf Club manager that Huskisson Police officer Brad Taylor told them that I was banned from the Golf club. Brad Taylor himself told me when asked about it that he was waiting for the Club to issue a banning notice on me. He asked them to issue a banning notice on me he said : Vincentia Golf Club is now taken over by St Georges Basin Country Club. . Supervisor Hanna unlawfully refused my assistance animal Boofhead entry into the club on 3 occasions citing that the Huskisson Police Brad Taylor & Simon Ambrose told her not to at first allow me into the club which later was changed to allow me in but not Boofhead. Hanna told me that she had Brad Taylors instructions in writing : I asked her for a copy ; I put in a complaint to Human Rights Commission : I appears some untruths were told in the reply from the Club and the Police .

9    In the Originating Application under the heading “Extension of time” Mr Reurich “asks for an extension of time to lodge this application because … [he] miscounted the days assuming it was two months is 60 days .So [he] went by date”.

10    In his affidavit affirmed on 19 February 2018 Mr Reurich gives the following evidence in support of his application for an extension of time (as written):

Please allow me the extension on time as I had some issue with e lodgement and also I was under the impression that 60days was actually 2 months so the 29th of say September ber is 60 days from the 29th November. I just can’t count?

11    In support of their application Senior Constable Ambrose and Sergeant Taylor rely on affidavits sworn by each of them on 2 and 1 February 2018 respectively as well as an affidavit affirmed by their solicitor, Bryan Robert Belling, on 2 February 2018. Mr Reurich relies on his affidavit referred to in the preceding paragraph and a letter dated 17 February 2017 and its enclosures from the Vincentia Golf Club to the AHRC responding to Mr Reurich’s complaint. Because of the basis on which I have determined this application it is not necessary for me to set out that evidence.

relevant legal principles

Summary dismissal

12    Section 31A(2) of the FC Act empowers the Court to give judgment for one party against another in relation to the whole or any part of a proceeding if the Court is satisfied that, relevantly, the applicant has no reasonable prospect of successfully prosecuting the proceeding. Section 31A(3) of the FC Act provides that a proceeding need not be hopeless or bound to fail for it to have no reasonable prospect of success.

13    Rule 26.01 of the Rules provides that a party may apply to the Court for an order that judgment be given against another party because, among other things, the applicant has no reasonable prospect of successfully prosecuting the proceeding or the proceeding is frivolous or vexatious or no reasonable cause of action is disclosed.

14    In Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401 (Kowalski) at [25] a Full Court of this Court observed that “[t]he effect of s 31A was to soften the test for a successful application for summary judgment”.

15    In Cavar v Green Gate Pty Ltd [2015] FCA 1179, after referring to the effect of s 31A as set out in Kowalski, Flick J said at [29]:

But "caution" should be exercised in the exercise of those powers: Spencer v Commonwealth [2010] HCA 28 at [24], (2010) 241 CLR 118 at 131 per French CJ and Gummow J. It is necessary to ensure that a party suffers no "injustice" in the summary dismissal of a case: Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 at [45], (2006) 236 ALR 720 at 731 per Rares J. Subsequently, Jacobson J observed in Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd [2006] FCA 1416 has observed:

[30]    The authorities relating to the proper construction and effect of s 31A of the Federal Court of Australia Act were exhaustively reviewed by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 at [31]-[48]. His Honour stated the relevant principles at [45] and they may be summarised as follows:

•    In assessing whether there are reasonable prospects of success, the Court must be cautious not to do an injustice by summary dismissal.

•    There will be reasonable prospects of success if there is evidence which may be reasonably believed so as to enable the party against whom summary judgment is sought to succeed at the final hearing.

•    Evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects.

•    Unless only one conclusion can be said to be reasonable, the discretion under s 31A cannot be enlivened.

Strike out

16    Rule 16.21 of the Rules permits a party to apply to the Court for an order that all or part of a pleading be struck out because, relevantly, the pleading fails to disclose a reasonable cause of action appropriate to the nature of the pleading.

17    To disclose a reasonable cause of action, a pleading must contain all of the material facts to support the claims made. That is, it must disclose those facts that are necessary for the purpose of formulating a complete cause of action: see H 1976 Nominees Pty Ltd v Galli (1979) 30 ALR 181; (1979) 40 FLR 242 at 246.

should mr Reurich be granted an extension of time?

18    The first issue to be determined is whether Mr Reurich should be granted an extension of time within which to file the Originating Application, a matter which goes to the Court’s jurisdiction. Senior Constable Ambrose and Sergeant Taylor took a neutral position on Mr Reurich’s application for an extension of time observing only that it was a matter that went to the competency of the application.

19    As noted at [2] above, the first to fourth respondents to the proceeding have not yet been served or are not otherwise before the Court. At the hearing of the Interlocutory Application I was informed by counsel appearing for Senior Constable Ambrose and Sergeant Taylor that correspondence had passed between solicitors acting for the second, third and fourth respondents and Mr Reurich about the proceeding and that, subject to the response received from Mr Reurich, those respondents would make a decision about whether to file an interlocutory application.

20    Section 46PO of the AHRC Act relevantly provides:

(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.

21    The Court has a discretion to grant an extension of time under s 46PO(2) of the AHRC Act: see Bahonko v Nurses Board of Victoria (No 4) (2007) 97 ALD 721; [2007] FCA 1449 (Bahonko) at [47] (leave to appeal and appeal refused in Bahonko v Nurses Board of Victoria [2008] FCAFC 29).

22    In considering whether to exercise the discretion conferred by s 46PO(2), the Court should consider the explanation for the delay, any prejudice to the respondents and whether the applicant has an arguable case: see Bahonko at [48]; Vergara v Living and Leisure Australia Ltd [2013] FCA 775 (Vergara) at [3].

23    I propose to make an order exercising my discretion to extend time under s 46PO(2) of the AHRC Act for Mr Reurich to make his application.

24    On the basis that the date an application is made under the AHRC Act is the date of lodgement with the Court, rather than the date it is accepted for filing, Mr Reurich was only one day late in making his application. In my opinion the requirement to make an application must refer to the actions of an applicant in taking positive steps to commence a proceeding by lodging his or her application with the Court either by delivering it to and having it accepted by a Court officer or by lodging it electronically and it being accepted for filing under the Court’s Rules: see by analogy in the context of the Bankruptcy Act 1966 (Cth), Kimber v The Owners Strata Plan No 48216 (No 2) [2018] FCA 406 at [153]-[158] and the cases cited therein. The AHRC Act does not require an application to be filed in order for it to be “made”.

25    Mr Reurich explains the reason for his delay as a mathematical error – he assumed that 60 days equated to two months. That is, as the Notice was dated 29 September 2017, he thought he had until 29 November 2017 to make his application but in fact the 60 day period ended on 28 November 2017. I accept Mr Reurich’s explanation for the delay. Mr Reurich is not legally represented. Doing the best he could, he attempted to make the application within the 60 day period as required by s 46PO(2) of the AHRC Act but made an understandable error of, it seems, one day in calculating when the relevant period ended.

26    Senior Constable Ambrose and Sergeant Taylor made no complaint about the delay. Nor could it be said that there could be any prejudice to any respondent to the proceeding given the very short period of delay, although I note that an absence of prejudice is not enough to justify an extension of time: see Vergara at [17].

27    The final issue to consider is whether Mr Reurich has an arguable case. As I have already observed, not all of the respondents are before the Court. Putting to one side Senior Constable Ambrose and Sergeant Taylor who neither consent to nor oppose the application, it is difficult to assess the merits of Mr Reurich’s claim in the absence of the other respondents. Mr Reurich has only put before the Court limited evidence in relation to his claim against all respondents. In that regard, the response from Vincentia Golf Club to the AHRC suggests that Mr Reurich was barred from the club for a period although the reason why he was barred is not clear. In those circumstances I would treat the question of whether Mr Reurich has an arguable case as neutral.

28    In the circumstances, I am of the opinion that the Court should exercise its discretion to grant an extension of time to Mr Reurich to make his application up to 29 November 2017, the date which Mr Reurich incorrectly assumed was the 60th day of the relevant period.

should the originating application be summarily dismissed against Senior Constable Ambrose and Sergeant Taylor?

29    Senior Constable Ambrose and Sergeant Taylor seek to have the originating application summarily dismissed because they argue that the claim against them is incompetent as they were not party to Mr Reurich’s complaint to the AHRC.

30    That argument rests on the application of s 46PO(1) of the AHRC Act set out at [20] above. Senior Constable Ambrose and Sergeant Taylor submitted that where a complaint has been terminated under s 46PH of the AHRC Act, s 46PO(1) permits an affected person in relation to the complaint to “make an application to the [Court] alleging unlawful discrimination by one or more of the respondents to the terminated complaint” (emphasis added).

31    In Grigor-Scott v Jones (2008) 168 FCR 450 (Grigor-Scott) a Full Court of this Court (Emmett, Lander and Tracey JJ) considered the competence of an order made by the primary judge purporting to join Mr Grigor-Scott to the proceeding as a respondent. The proceeding before the primary judge was commenced following termination of a complaint of racial discrimination made by Mr Jones pursuant to the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (HREOC Act), the predecessor legislation to the AHRC Act, against the Bible Believers’ Church of which Mr Grigor-Scott was a representative. Mr Grigor-Scott was not a respondent to the complaint.

32    The Full Court held that the proceeding was incompetent because it named as respondent a non-existent entity not capable of being sued and it purported to join an individual who had not been a respondent to the complaint before the Human Rights and Equal Opportunity Commission (HREOC). After referring to s 46PO of the HREOC Act, which was in substantially the same terms as s 46PO of the AHRC Act, the Full Court said at [18]:

Section 46PO does not provide for a general statutory cause of action available to anyone who may have been at any time affected by the unlawful discrimination. The statutory cause of action is only available to those who made the complaint or on whose behalf the complaint was made. It only lies in respect of the subject matter of the complaint to the Commission. …

33    Mr Jones submitted that while there is a need for some effective identification of the respondent to the complaint for the purposes of the orders set out in s 46PO(4) of the HREOC Act, it is not a jurisdictional precondition to the making of an application to the Court under s 46PO. In response, the Full Court said at [69]:

Section 46PO(1) requires two events to occur before an affected person may bring a proceeding in the Federal Court of Australia or the Federal Magistrates Court alleging unlawful discrimination by one or more of the respondents to the terminated complaint. First, a complaint must have been terminated. Secondly, the President must have given notice under s 46PH(2). If both those events occur, then an affected person, as defined in the Commission Act, may bring a proceeding in the Federal Court of Australia or the Federal Magistrates Court alleging unlawful discrimination against the respondents to the terminated complaint. The section does not authorise an affected person to bring a proceeding against anyone other than a respondent to the terminated complaint. Section 46PO(3) makes it clear that the unlawful discrimination that is alleged in the proceeding must be the same as the unlawful discrimination that was the subject of the terminated complaint or must arise out of the same acts, omissions or practices that were the subject of the terminated complaint. Thus, it is a condition of s 46PO that the application that is authorised by s 46PO be brought against the respondent to the complaint.

34    In Eliezer v University of Sydney (2015) 239 FCR 381 Perry J considered s 46PO of the AHRC Act. There the applicant, Mrs Eliezer, made claims under the AHRC Act against the second to fifth respondents for alleged breaches of the Sex Discrimination Act 1984 (Cth) and alleged that the first respondent, the University of Sydney, was vicariously liable for the conduct of the second to fifth respondents. Among other things, the respondents sought summary dismissal of the proceeding pursuant to s 31A(2) of the FC Act and r 26.01 of the Rules or, in the exercise of the Court’s implied or inherent power to dismiss the proceeding, on the basis that it was an abuse of process. Relevantly, the respondents contended that the Court lacked jurisdiction to determine the proceeding against the second to fifth respondents.

35    In considering that issue Perry J observed at [43] that 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”. Her Honour continued:

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).

36    Perry J then referred to the decision in Grigor-Scott and said at [49] 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. …

37    Her Honour found that the only respondent to the complaint lodged with the AHRC was the first respondent and accordingly held that the Court lacked jurisdiction to entertain the proceeding against the second to fifth respondents: at [52]-[53].

38    Here it is clear that the only respondents to the terminated complaint are The Country Club Vincentia (formerly known as Vincentia Golf Club Limited) and the State of New South Wales (NSW Police Force). That is evident from the following:

(1)    the email dated 10 October 2016 from Mr Reurich to Info Service referred to at [4] above in which Mr Reurich set out his complaint to the AHRC and in which he clearly stated that he wished to raise his concerns about “Vincentia Golf Club Limited (Golf Club) of disability discrimination” and “about NSW Police for inciting/instructing the doing of an unlawful act towards myself”. While Mr Reurich went on to name certain individuals in the email, including Senior Constable Ambrose and Sergeant Taylor, he did so in the context of describing his complaint;

(2)     in the letter dated 29 September 2017 from the AHRC to Mr Reurich, the AHRC wrote to inform Mr Reurich of the decision to terminate his complaint against The Country Club Vincentia (formerly known as Vincentia Golf Club Limited) and the State of New South Wales (NSW Police Force); and

(3)    in the Notice the AHRC identified The Country Club Vincentia (formerly known as Vincentia Golf Club Limited) and the State of New South Wales (NSW Police Force) as the only respondents to the complaint.

39    The terminated complaint was not against Senior Constable Ambrose or Sergeant Taylor and thus, in light of s 46PO(1), the Court has no jurisdiction to entertain Mr Reurich’s application insofar as it seeks relief against them.

40    It follows from that conclusion that Mr Reurich has no reasonable prospect of successfully prosecuting the proceeding against Senior Constable Ambrose and Sergeant Taylor because the Court lacks jurisdiction to entertain the proceeding against them. Accordingly, the proceeding as against Senior Constable Ambrose and Sergeant Taylor should be dismissed.

41    Senior Constable Ambrose and Sergeant Taylor raised other grounds on which they submitted the proceeding against them should be dismissed or, in the alternative, the Originating Application should be struck out. However, given the conclusion I have reached about the Court’s jurisdiction to entertain the application against them, it is not necessary for me to address those further submissions.

conclusion

42    I will make an order pursuant to s 46PO(2) of the AHRC Act extending the time for Mr Reurich to make his application. I will also make an order pursuant to s 31A(2) of the FC Act and r 26.01 of the Rules that the proceeding as against Senior Constable Ambrose and Sergeant Taylor be dismissed and an order that Mr Reurich pay Senior Constable Ambrose’s and Sergeant Taylor’s costs of the proceeding, including their costs of the interlocutory application filed on 5 February 2018.

43    As the proceeding remains on foot in relation to the balance of the respondents it will be listed on a future date for a further case management hearing.

Associate:

Dated:    17 May 2018

SCHEDULE OF PARTIES