FEDERAL COURT OF AUSTRALIA

Reurich v Campbell Page Ltd [2018] FCA 683

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 and third respondents’ costs of the application for an extension of time under s 46PO(2) of the AHRC Act.

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    This is an application for an extension of time under s 46PO(2) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) in which to make an application to the Court alleging unlawful discrimination.

2    The applicant, Peter George Reurich, lodged his originating application under the AHRC Act with the Court on 21 November 2017 (Originating Application), approximately eight months out of time. The Originating Application named six respondents. As some of those respondents were incorrectly named, Mr Reurich filed an amended originating application (Amended Application) to correct the names of the first and third respondents. The respondents named in the Amended Application are Campbell Page Ltd (Campbell Page), Casey (last name unknown), Gabrelle Shae, Sue McGregor, Ross McLatchie and Xavier Crimmins. As it appears that the third respondent’s name was still misspelt in the Amended Application and should have been Gabrelle Shea, not Gabrelle Shae, I will hereafter refer to the third respondent as Ms Shea.

3    As at the date of the hearing of Mr Reurich’s application for an extension of time, he had only served the first and third respondents – no other respondent had been served.

background

4    Campbell Page was contracted by the Department of Employment to deliver employment service programs and assist a range of job seekers. Mr Reurich was connected to Campbell Page’s services between 2011 and 2014.

5    On 24 July 2015 Mr Reurich made a complaint to the Anti-Discrimination Board of New South Wales (Anti-Discrimination Board) alleging that he had been discriminated against because he is an older male, that he had been bullied by female staff of Campbell Page and that he had been banned from accessing its services in contravention of the Anti-Discrimination Act 1977 (NSW) (ADB Complaint). By letter dated 30 September 2015 the Anti-Discrimination Board informed Campbell Page that the ADB Complaint had been terminated because Mr Reurich did not wish to pursue it further.

6    On or about 3 November 2015 Mr Reurich made a complaint by email to the Australian Human Rights Commission (AHRC) alleging disability discrimination in contravention of the Disability Discrimination Act 1992 (Cth) (DD Act). A copy of the complaint was provided to Campbell Page on 5 August 2016.

7    On 25 January 2017 a delegate of the President of the AHRC wrote to Mr Reurich informing him that the complaint he had made against Campbell Page alleging disability discrimination under the DD Act had been terminated under s 46PH(1)(i) of the AHRC Act because she was not satisfied that there was a reasonable prospect of the matter being settled by conciliation (Termination Letter). The Termination Letter enclosed a notice of termination dated 25 January 2017 issued under s 46PH(2) of the AHRC Act (Termination Notice). It also informed Mr Reurich that pursuant to the AHRC Act, after termination of a complaint, the person affected by the alleged discrimination can apply to the Federal Circuit Court of Australia (Federal Circuit Court) or this Court to have the allegations decided by the court and that such an application had to be made within 60 days of the date on the Termination Notice.

the application for an extension of time

8    In the Originating Application and the Amended Application Mr Reurich includes the following under the heading “Extension of time” (as written):

Date of issue of notice under section 46PH(2) of the Australian Human Rights Commission Act 1986: 11th May 2016 Termination

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 because conciliations were continually postponed and I 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 for the bullying as what happened to me is still happening to others and even today I am being discriminated against by Campbell Page through Sat (Aka Gabriella) by the treatment she continue to dish out to myself and boofhead my assistance Dog calling me a horrible man amongst other things to her co-workers . My Psychologist believes I have autism or asperses syndromes and yet I have been furiously seeking employment but I feel and am aggrieved by earlier actions of the respondents costing me employment opportunities

The reference to “11th May 2016 Termination” is incorrect. The Termination Notice is dated 25 January 2017.

9    Mr Reurich relies on his affidavit affirmed on 19 February 2018 in support of his application for an extension of time which I set out below in its entirety, omitting formal parts:

Reasons Why I need an extension of Time

I am still being discriminated By Campbell Page as we speak

Please do take my Application as a serious Breach of the DD Act 1992 amended 2009 not allowing me to use the toilets of extreme bullying, harassment, bastardisation, defamation &Hurtful and meant to be hurtful Lies told about me which needs to be tested and proved by Law and this court: Annexure "A1" Email sent by me to Tamara my Psychologist.

I was aware of the 60 day rule so I cannot explain why I did not get a grip as I knew the importance of the time limit. However their discriminations toward me are continuing even today as I am still on restrictions as a result of actions previous.

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 I 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 ;Perhaps I accidently deleted it not knowingly.

2.    Before the termination I had a series of emails for conciliation meeting with Campbell Page and then a number of cancelations adding to my confusions.

3.    My life is extremely busy and unordered at this period of 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

4.    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 "A1"

5.    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

6.    I have a strong case of complaint against the respondents

7.    The treatment I was dished out by Sureway and other organisations extremely upset me as I was made to feel marginalised

8.    Sureway is contracted to the Government to help me get employment and remove the barriers of me getting gainful employment.

9.    They put me on restrictions ,these part of what my complaint is about :These restrictions are barriers

10.    Annexure "A2" 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 Annexure "A3" 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/July2017 for both Campbell page and Sureway

11.    I state the Respondents will not be disadvantaged or suffer hardship if I am allowed to file out of time.

10    Despite Mr Reurich referring to three annexures in his affidavit, he has only included two: annexure A1 and what appears to be annexure A2, although it includes a handwritten note marking it as “Annexure ‘A3’ Campbell Page” and “Annexure ‘A3’ ‘A5’”. In his affidavit Mr Reurich says that he is only providing those annexures “at this time” because of a page limit imposed by the Court. However, no page limit was imposed on the parties in relation to the evidence they proposed to rely on in connection with the application to extend time. When invited to tender any further evidence on which he proposed to rely at the hearing of the application for an extension of time, Mr Reurich did not proffer the additional document referred to as annexure A3 in his affidavit.

11    Annexure A1 was described by Mr Reurich as email correspondence between him and Tamara, his psychologist. Mr Reurich’s email to Tamara is dated 5 May 2016 and provides:

Job going OK

memory is stretched; I forget things and have to check my self to much stress had been bad but better now, boss 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

12    Annexure A2 is an email exchange between Mr Reurich and Justice Connect dated 24 July 2017. It includes an email from Patrick Deane, a graduate lawyer at Justice Connect, who wrote:

Hi Peter

I hope you are well.

Please note that the Self representation Service staff work as a team and you cannot try to obtain different advice or further help from one staff member when another has already informed you we cannot assist.

Kind regards

In reply Mr Reurich wrote:

Well that is fine Patrick because then Alex yourself and the rest of your team has let me down severely because I don’t think you quite understand the gravity of my grievances against the 2 organizations and the bullies involved in their action by not allowing me the use of their precious toilets as a client on the basis that I am male and old and all the disgraceful lies told about me which I have solid proof of these people are paid by the government as you are to service me and remove the barriers and by law I should be helped by them and now you. They are supposed to help gain employment not prevent me and affect my mental health anxiety as they have caused me depression to the point I almost give up back then and I believe they should not be in their position of power over vulnerable people ; and they abuse their power to the detriment health and perhaps have fatal consequences if they are allowed to continue their activities and I do want to and with or without your help I will

peter & Boofhead

legal principles

13    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.

14    The Court has the power to extend time under s 46PO(2) of the AHRC Act. The three principle matters to be considered in the exercise of the discretion to extend time 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 Ferrus v QANTAS Airways Limited (2006) 155 IR 88; [2006] FCA 812 (Ferrus) at [20] (Collier J); Vergara v Living and Leisure Australia Ltd [2013] FCA 775 at [3] (Davies J) (Vergara).

15    In Ferrus, in considering the exercise of the discretion to extend time in s 46PO(2) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth), which was, save for the time by which an application had to be made, in substantially the same terms as s 46PO(2) of the AHRC Act, at [19] Collier J cited with approval the principles described by McInnis FM in Phillips v Australian Girls Choir [2001] FMCA 109 as follows:

1.    There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The 'prescribed period' of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 550).

2.    It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). It is not a precondition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential precondition (Comcare v A'Hearn (1993) 45 FCR 441 and Dix v Client Compensation Tribunal (1993) 1 VR 297 at 302).

3.    Action taken by the applicant other than by making an application to the court is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised (see Doyle v Chief of Staff (1982) 42 ALR 283 at 287).

4.    Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension (see Doyle at 287).

5.    The mere absence of prejudice is not enough to justify the grant of an extension (see Lucic at 416).

6.    The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted (see Lucic at 417).

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

consideration

16    Campbell Page and Ms Shea oppose the application for an extension of time. I turn to consider each of the matters relevant to the exercise of the Court’s discretion under s 46PO(2) of the AHRC Act.

Explanation for the delay

17    Mr Reurich had 60 days to commence the proceeding. As the Termination Notice was dated 25 January 2017, he had until 26 March 2017 to commence the proceeding. Mr Reurich did not lodge his Originating Application with the Court until 21 November 2017, approximately eight months after the 60 day period had expired.

18    Mr Reurich refers in the Amended Application to suffering from depression, anxiety and to being confused. While no evidence is provided by Mr Reurich to substantiate those claims, I am willing, for the purpose of this application, to accept that may well have been so. However, even accepting that to be the case, there are a number of other aspects of Mr Reurich’s evidence which make it difficult to accept his explanation for the delay of eight months, a significant delay particularly in the context of the AHRC Act which allows an applicant 60 days within which to commence a proceeding. They are:

(1)    first, Mr Reurich was aware of the requirement to commence his proceeding within 60 days of the Termination Notice. He clearly states that to be the case in his affidavit and he did not resile from that position in his submissions to the Court but in fact confirmed it when he said, “I was fully aware, as you know. I know the 60 day rule”;

(2)    secondly, Mr Reurich deposes that at about the time of the Termination Notice he sent an email to his psychologist, Tamara, “complaining that [his] brain was not working properly” and that he “was forgetting important things and not remembering properly due to stress of [his] job and other factors perhaps”. However, Mr Reurich’s email to Tamara is dated 5 May 2016, which is approximately three and a half months after the Termination Notice was sent to Mr Reurich by the AHRC and after the end of the 60 day period permitted in which to commence a proceeding;

(3)    thirdly, Mr Reurich’s evidence that his life was busy and disordered at the time does not assist him. His description of the matters that occupied him, including his car breaking down, chasing work, starting work and his computer crashing, are no more than the daily exigencies of life. They are not an acceptable explanation for the delay: Vergara at [12]; and

(4)    fourthly, it may be the case that Mr Reurich overlooked the Termination Letter and the Termination Notice but, at least by 24 July 2017, the date of the email exchange between Mr Reurich and Justice Connect, it appears that Mr Reurich was aware of the termination of his complaint to the AHRC. In his affidavit, Mr Reurich says that Justice Connect refused to help him file because he was late and refers to having possibly deleted the “Termination email”. Despite that he did not lodge his Originating Application until November 2017, some four months later. There is no explanation provided by Mr Reurich for that further delay.

19    Even taking Mr Reurich’s evidence that he may have been confused by the emails emanating from the AHRC and suffering from a form of anxiety and depression at its highest, at the very latest as at 24 July 2017 Mr Reurich must have been aware that his complaint to the AHRC had been considered and, I would infer from the fact that he sought assistance from Justice Connect and that they “refused to help [Mr Reurich] file because [he] was late”, that he was aware of its termination. Despite that, he took no steps to make his application for four months, an additional period of delay which has not been sufficiently explained by Mr Reurich. In the circumstances, I am not persuaded that Mr Reurich has provided an acceptable reason for the delay in commencing the proceeding.

Prejudice to the respondents

20    Campbell Page and Ms Shea rely on an affidavit sworn by Michael Patrick Austin, Campbell Page’s company secretary, on 14 March 2018 who, among other things, gives evidence of the prejudice which it is said would arise if Mr Reurich was granted an extension of time pursuant to s 46PO(2). Relevantly Mr Austin deposes that:

(1)    the Amended Application contains allegations against persons identified as Casey (last name unknown), Ms Shea, Sue McGregor, Ross McLatchie and Xavier Crimmins;

(2)    in relation to the person identified as Casey (last name unknown), that may be a person called Casey who ceased employment with Campbell Page on 19 September 2014 and with whom Campbell Page has not had contact since that date;

(3)    in relation to the person identified as Sue McGregor, Campbell Page has never employed a person of that name but the Sue that Mr Reurich may be referring to ceased employment with it on 6 August 2013. Campbell Page has not had contact with that person since 13 August 2013;

(4)    Mr Crimmins is the former group chief executive officer of Campbell Page and ceased employment with it on 17 July 2015. Mr Austin is aware that some executive staff of Campbell Page remain in contact with him;

(5)    in addition to Casey (last name unknown), Sue McGregor and Mr Crimmins, Mr Austin is aware of the following current or former staff who have knowledge of Mr Reurich’s complaints:

(a)    Simon Turner;

(b)    Rachael Harvey; and

(c)    Dale Cleaver;

(6)    Mr Turner is the former executive manager of contract and compliance who appears to have managed Campbell Page’s response to the ADB Complaint as he prepared Campbell Page’s response to that complaint. Mr Turner’s employment ceased on 26 May 2017 and Campbell Page last had contact with him on 2 June 2017;

(7)    Ms Harvey is Campbell Page’s current human resources manager but is on extended leave until 2 February 2019. Mr Austin understands that she is in the Caribbean and is difficult to contact;

(8)    Mr Cleaver is the former chief executive officer of Campbell Page and is the current chief executive officer of Guide Dogs NSW/ACT. He ceased employment with Campbell Page on 29 September 2017. Mr Austin understands that some executive staff of Campbell Page remain in contact with him; and

(9)    if the matter were to proceed to hearing Campbell Page would seek to rely on evidence from the persons identified as Casey (last name unknown), Sue McGregor, Mr Crimmins, Mr Turner, Ms Harvey and Mr Cleaver.

21    It is clear from Mr Austin’s evidence that a number of likely relevant witnesses in the proceeding have left the employ of Campbell Page and that Campbell Page has not had contact with some of those persons for a considerable period of time.

22    The 60 day period prescribed by s 46PO(2) ended on 26 March 2017 but Mr Reurich did not lodge the Originating Application until 21 November 2017. In that intervening period potentially relevant witnesses have left Campbell Page’s employment. This has caused Campbell Page prejudice particularly where Campbell Page has limited contact with those former employees. Had the proceeding been commenced in time, Campbell Page may have taken steps to maintain contact and ensure those persons’ availability to assist it. Other potential witnesses identified by Campbell Page left its employ prior to the end of the 60 day period permitted by s 46PO(2) of the AHRC Act. The additional delay will add to Campbell Page’s difficulty in locating those persons. In one case, Campbell Page has not had contact with a potentially relevant witness for almost five years.

Does Mr Reurich have an arguable case?

23    Campbell Page and Ms Shea submitted that the Amended Application does not disclose an arguable case. They submitted that their actions towards Mr Reurich were a reaction to or necessitated by his improper conduct and not any disability which, they said, has not been identified. Campbell Page and Ms Shea rely on their response to the Anti-Discrimination Board in relation to the ADB Complaint as well as contending that some of the improper conduct on the part of Mr Reurich is essentially conceded by him in the first paragraph of his Amended Application set out at [28] below.

24    Before turning to consider those submissions I note that in the Amended Application, in addition to discrimination under the DD Act, Mr Reurich complains of unlawful discrimination under the Age Discrimination Act 2004 (Cth) and the Sex Discrimination Act 1984 (Cth).

25    Section 46PO(3) of the AHRC Act provides that the unlawful discrimination alleged in an application made to the Federal Circuit Court or this Court following termination of a complaint must be 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, omissions or practices that were the subject of the terminated complaint.

26    The terminated complaint was a claim by Mr Reurich against Campbell Page alleging disability discrimination under the DD Act. In the Termination Letter the delegate of the President of the AHRC stated:

I am writing to advise you of my decision regarding your complaint against Campbell Page Limited, alleging disability discrimination under the [DD Act].

Sections 5, 6, 11, 24 and 29A of the [DD Act] appear to be relevant to the complaint.

27    Thus, any allegation by Mr Reurich of unlawful discrimination under the Age Discrimination Act 2004 (Cth) and the Sex Discrimination Act 1984 (Cth) cannot be sustained. There was no allegation of breach of those Acts in the terminated complaint which was limited to allegations of breach of the DD Act.

28    In the Amended Application Mr Reurich claims (as written):

Back in 2014-15 Sue McGregor manager of Campbell Page Nowra & Vincentia and Sat (Gabrelle Shae) From Disabilities Discriminated me by not allowing me to use the toilets saying it is only for employees and woman. I have a anxiety condition which from time to time makes me frequent the toilets sometime 2,3 5 times in 10- 20 minutes ; I had to go outside and open my car door to relieve myself on numerous occasions, rather than wet my pants perhaps much to their amusement. I was told to go to the public toilets by Sat; These toilets are 600 meter away and I would be doing work on my (Their) computer. I complained to a senior manager Dale with a letter from my doctor; I was asked by their other staff to not use the toilets when the bosses are on site as they will get into trouble as they have been ordered not to let me use the toilets; This not only bullies me they bullied their employees; Dale eventually made it clear that I was allowed to us the toilets ; Then Sue and Sat put a little bolt lock on the hall door to prevent me from going to the toilet's unannounced ; eventually they were made to take it off after my complaints to Dale; Then Casey became the new Nowra Vincentia manager ; and she had me removed in my better interest to Sureway; However I eventually got back to Campbell Page as I was unsatisfied with Sureway service and I was lucky to get Deb Lee and Taneale as my case workers who were helpful; By this time we has a agreement that I and Sat were not to speak to each other as I complained about her bullying and other adverse actions toward me; like stomping pass me close ,when I was working on the computer However she on the one day a week she was on the premises always said loudly Hello Peter from another room as I entered the premises' which I ignored ; I was doing a certificate OH&S course and after getting over a bad period got back on my feet to continue this course doing a assignment which was almost complete and I asked Taneale to check it with me before I send it in and I mentioned to her please ask Sat not to greet me as I found it irritating; The next day I entered to complete my assignment and Casey and sat were there and I feared that I was getting undue attention from Casey as she was staring in my direction fixed ; I needed to go to the toilet and Sat happened to block the entrance in a intimidating way and I muttered get out of my road idiot; few hours later Casey came over and wanted to to talk to me ; I did not want to as I was busy ; She insisted and I was staring to shake and I was not well and felt fearful so I refused to talk to her and she said I can't have you calling my staff idiot ; I closed my computer down left hearing her yell she was going to ban me from Campbell page and I replied as I was leaving that I was going to put a complaint in about her; The rest is history where she then falsely accuses me of dirty toilets ,throwing chairs at her , stealing resumes off the computer and many other things and one day over the phone she the Manager said to me I don't care what happens to you; you are wasted space ; so I continued to go back getting help from my case workers as they were supportive and felt that I was treated unfairly by Casey and Sat ; eventually Casey called the police ; I got a phone call from them to stay away or I will be charged with trespass and they got a security guard who was quite jovial about this ; The Ceo and Ross were also implicated for treating me appallingly The rest of my complaint is in my attachments

29    Mr Reurich is not legally represented. The claim he makes is a discursive description of various events which he alleges occurred between 2014 and 2015. The substance of his complaint seems to be that he was not permitted to use the bathrooms located at the Campbell Page branch that he attended; that Ms McGregor and Ms Shea allegedly harassed him, showed contempt for him and made up lies about him which caused him to suffer depression; and that he was unable to focus on the Occupational Health and Safety course that he was attempting to complete and thus was unable to obtain work.

30    As Mr Austin’s evidence discloses, Mr Reurich’s complaint to the AHRC followed the termination of a complaint made by Mr Reurich to the Anti-Discrimination Board on the basis of age and gender. The substance of the ADB Complaint was essentially the same as the substance of the complaint made to the AHRC and the claim included in the Amended Application.

31    A letter from Campbell Page to the Anti-Discrimination Board dated 17 September 2015 (Campbell Page Letter) described the services that Campbell Page provided and set out some of the history of the interactions between Campbell Page and Mr Reurich. In that letter Campbell Page said:

… During this period, Mr Reurich displayed an escalating pattern of inappropriate behaviour that culminated in an extensive internal investigation into his interactions with us and our dealings with him. At no time did we identify anything that would lead us to believe that Mr Reurich’s claims of bullying by any of our staff could possibly be substantiated.

…

In March of 2013, the Area Manager for the Shoalhaven did put in place local arrangements that office toilets were only to be used by staff and not be made publically available and job seekers were asked to access publically available toilets in nearby shopping centres. Mr Reurich formally complained about this, and once Senior Management were aware that this had been implemented, they immediately had this local policy removed, and again made our amenities available to all job seekers. It is important to note that this arrangement was not specifically aimed at Mr Reurich and was applied to all job seekers accessing our sites in the Shoalhaven.

In September 2014, we did ban Mr Reurich from attending our office locations due to concerns about the safety of our staff as a result of his behaviour at that time. In doing this, we followed the Department of Employments guidelines in relation to servicing challenging clients. A copy of these guidelines can be found in Attachment B. These guidelines outline the steps that we as a provider are required to take when dealing with challenging or inappropriate behaviours from job seekers connected to our services. At the time of Mr Reurich's exit from our services, we were seeking to have the Department of Employment remove him from our job seeker caseload due to an irreconcilable relationship failure, however Mr Reurich opted to voluntary transfer to another provider, and thus was no longer connected to us.

During the period that Mr Reurich was linked with us, he demonstrated a consistent pattern of inappropriate behaviour such as yelling and swearing at staff, behaving aggressively, interacting with other job seekers in our offices inappropriately, utilising Campbell Page facilities for personal use and not job search related activities and bringing his pet dog into our office.

This behaviour escalated dramatically in August 2014 and resulted in Mr Reurich being advised verbally on the 25th of August that he was not to attend the office until we had completed an internal investigation into the interactions between Mr Reurich and our staff. This was followed up in writing on the 29th of August, advising Mr Reurich that he was not to attend our office until we could complete a mediation process with him, and that we could be satisfied that our staff and other job seekers would be safe and respected in the work place. As part of suspending his access to our offices, we offered Mr Reurich the use of a Campbell Page laptop and mobile internet connection to ensure he was not disadvantaged. Mr Reurich declined this offer of assistance. He also declined to engage in any mediation process.

…

A formal Temporary Service Restriction was put in place via the Department of Employment in relation to Mr Reurich's behaviour on the 2nd of September 2014. In subsequent discussions with him it became apparent that we would not be able to achieve resolution, and as a result of this we requested the Department of Employment transfer Mr Reurich to another provider. This request was made on the 15th of September 2014 due to the irreconcilable relationship breakdown. We were advised by the Department of Employment on the 23rd of September that Mr Reurich had elected to voluntarily transfer to another provider on the 19th of September.

…

32    The allegation of unlawful discrimination under the DD Act in the Amended Application is deficient in a number of respects including that it does not specify the alleged disability, nor does it specify the sections of the DD Act upon which Mr Reurich relies and which he alleges were breached by any of the respondents, including Campbell Page and Ms Shea.

33    Section 24 of the DD Act, identified in the Termination Letter as potentially relevant to Mr Reurich’s complaint, concerns the provision of goods, services and facilities and provides:

It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person’s disability:

(a)     by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or

(b)     in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or

(c)     in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.

34    It is clear that at no stage did Campbell Page provide goods to Mr Reurich. Services is defined in s 4 of the DD Act as follows:

services includes:

(a)     services relating to banking, insurance, superannuation and the provision of grants, loans, credit or finance; or

(b)     services relating to entertainment, recreation or refreshment; or

(c)     services relating to transport or travel; or

(d)     services relating to telecommunications; or

(e)     services of the kind provided by the members of any profession or trade; or

(f)     services of the kind provided by a government, a government authority or a local government body.

35    Campbell Page submitted that, given the prescriptive definition, it may have provided services to Mr Reurich within the terms of (b) of the definition in s 4 of the DD Act. That is arguably a part of the definition that would apply to the “services” provided by Campbell Page although the definition is not exhaustive. However, as seemed to be agreed between the parties and as evidenced by the Campbell Page Letter, Campbell Page stopped providing services to Mr Reurich in September 2014.

36    On the assumption that the allegation is that Campbell Page and Ms Shea breached s 24 of the DD Act in the way they made facilities available and, more particularly, that they discriminated against Mr Reurich by refusing him access to the bathroom and by no longer providing him with access to Campbell Page’s computers because of a disability, the claim is still defective. This is because Mr Reurich does not set out, in the pleaded claim or in his evidence, the disability which he alleges he had at the time and of which he alleges Campbell Page and Ms Shea were aware that gave rise to the alleged unlawful discrimination.

37    In addition, it seems that the reason for the termination of the provision of services in September 2014 was because of Mr Reurich’s behaviour. It is then not evident how, after September 2014 and until the time of the complaint, it is said that Campbell Page and Ms Shea allegedly engaged in unlawful discrimination contrary to the DD Act and, particularly, s 24 of that Act.

38    In light of those matters, in my opinion, the Amended Application fails to disclose an arguable case.

Conclusion

39    Having regard to all of the circumstances of this case I am not persuaded that I should exercise my discretion to extend time under s 46PO(2) of the AHRC Act. Mr Reurich’s application for an extension of time should be dismissed and, it follows, that the amended originating application filed by Mr Reurich should also be dismissed. Mr Reurich should pay Campbell Page’s and Ms Shea’s costs of the application to extend time. I will make orders accordingly.

Associate:

Dated:    17 May 2018

SCHEDULE OF PARTIES