FEDERAL COURT OF AUSTRALIA

Wickham v Victoria Legal Aid [2019] FCA 1503

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time under section 46PO(2) of the Australian Human Rights Commission Act 1986 (Cth) be refused.

2.    Unless a party notifies the Court in writing by 4.00pm on 18 September 2019, indicating opposition to this order, there be no order as to costs.

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

REASONS FOR JUDGMENT

KENNY J:

1    The applicant, Therese Wickham, seeks 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 alleging unlawful age discrimination against the respondent, Victoria Legal Aid (VLA). Her application is part of her originating application filed on 10 December 2018, and is supported by her affidavit sworn on 17 November 2018. On 4 April 2019, the Court ordered by consent that the application be determined on the papers.

2    Ms Wickham is not legally represented, although she has been assisted by a support person. Besides her affidavit, she relies on written submissions filed on 15 May 2019.

3    The respondent, VLA, is represented by its lawyers. It opposes Ms Wickham’s application for an extension of time and relies on written submissions filed on 4 June 2019

4    For the following reasons, I would dismiss Ms Wickham’s extension of time application, essentially because she has failed to establish that there is sufficient merit in the application to justify the extension of time she seeks.

BACKGROUND

5    By a letter dated 20 November 2017 (complaints letter), Ms Wickham, who is now nearly 82 years of age, made a complaint to the Australian Human Rights Commission (AHRC) alleging unlawful discrimination under the Age Discrimination Act 2004 (Cth) (Age Discrimination Act). The AHRC attached the complaints letter (with supporting documents) to its notice of termination under s 46PH(2) of the AHRC Act, along with a copy of the amendment to Ms Wickham’s complaint. The notice of termination also attached a letter to Ms Wickham dated 13 August 2018 (AHRC’s 13 August 2018 letter) which set out the reasons for the decision to terminate her complaint.

6    The AHRC’s 13 August 2018 letter recorded that Ms Wickham had alleged age discrimination in relation to bullying and harassment that she said took place between 2007 and May 2014 during her employment as an Administrative Services Officer at VLA. In particular, the letter recorded that she claimed that:

    in 2007, in an attempt to remove her from the workplace, a Head of Division instructed a Senior Solicitor to overload her with work until she broke;

    while working in the Family Law Division, a colleague made her working days intolerable by making loud derogatory remarks, criticising how she did her work and the time it took her to do it;

    around mid-October 2013, her direct manager indicated that people in the organisation wanted her out and that he had been instructed to keep notes on any faults with her work, which would be reviewed on a weekly basis;

    her direct manager occasionally asked whether she did not feel that she was “too old to be working”;

    from January 2014, her direct manager and the program manager would pointedly check what she was doing and she was initially required to respond in writing to identified faults with her work;

    she was unfairly accused of being asleep at her desk, disturbing other staff and being unable to perform required tasks; and

    on 15 May 2014, in response to the stress at work, she had an episode of heart fibrillation and was taken to hospital, after which she did not return to work.

7    The AHRC’s 13 August 2018 letter also recorded that Ms Wickham’s complaint was subsequently amended to include an allegation that the decision by VLA to terminate her employment constituted age discrimination.

8    As indicated, a delegate of the President of the AHRC issued a notice of termination of Ms Wickham’s complaint on 13 August 2018 under s 46PH(2) of the AHRC Act. The notice recorded that the delegate terminated her complaint under s 46PH(1B)(a) and (b) on the grounds that the delegate was satisfied that: (a) in so far as her complaint related to her allegation regarding the cessation of her employment, the complaint lacked substance; and (b) in so far as her complaint related to alleged workplace bullying and harassment, there was no reasonable prospect of the complaint being settled by conciliation.

9    In the AHRC’s 13 August 2018 letter the delegate stated:

The information before the Commission supports that VLA decided to cease your employment because of medical advice it received from your treating GP, following the exhaustion of your statutory workers compensation entitlements, that you were unable to return to your pre-injury role or perform alternative duties at VLA and that you have no capacity to return to work with VLA in the future.

I note that concerns about an employee’s medical fitness to perform their role or alternative duties with an employer may be raised in relation to people of many different ages. I consider that there is no or no sufficient information before the Commission to suggest that VLA treated you less favourably because of your age, or singled you out because of your age, in deciding to cease your employment.

Therefore, I have decided to terminate this aspect of your complaint under section 46PH(1B)(a) of the AHRCA, as I am satisfied that it is lacking in substance.

10    The delegate also addressed Ms Wickham’s remaining allegations of age discrimination relating to workplace bullying and harassment issues between 2007 and May 2014, as follows:

I note that the Commission held a conciliation conference for this matter on 17 July 2018. I understand that the complaint could not be resolved at that time or since, because the parties could not agree on how to resolve the complaint.

Therefore, I have decided to terminate these allegations under section 46PH(1B)(b) of the AHRCA, as I am satisfied that there is no reasonable prospect of these aspects of your complaint being settled by conciliation.

11    The letter concluded by advising Ms Wickham that she must make any application to this Court or the Federal Circuit Court of Australia within 60 days of the date on the notice of termination, as prescribed by s 46PO(2) of the AHRC Act.

APPLICATION FOR AN EXTENSION OF TIME

12    As the notice of termination was issued on 13 August 2018, Ms Wickham was required to file her originating application in this Court by 12 October 2018. As it happened, she filed her application seeking an extension of time in which to make an application alleging unlawful discrimination on 10 December 2018, some 59 days after the expiration of the prescribed 60-day period.

13    The Court has a discretion under s 46PO(2) of the AHRC Act to extend the time in which an application can be made under s 46PO(1). The discretion is unconfined, save by reference to the scope, subject matter and purpose of the discretionary power: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 40 (Mason J).

14    I respectfully adopt the further observation of Mortimer J regarding s 46PO(2) as set forth in Stepian v Department of Human Services [2018] FCA 1062 at [21]-[23]. Here her Honour said that:

Discretionary powers such as the one in s 46PO(2) inevitably involve consideration of what is in the interests of the administration of justice, that being the Court’s core function.

In this sense, the discretion in s 46PO(2) is of the same character as that to be found in s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), considered by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; 3 FCR 344. As I observed in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 at [41]-[42], Hunter Valley has become the classic authority on the kinds of considerations which should be taken into account by a court in determining how to exercise a discretion to extend time. In Hunter Valley at 348-350, Wilcox J reviewed the matters which had been treated as relevant by the authorities to that point. That list of factors has been endorsed repeatedly in this Court as providing guidance on how the exercise of such a discretion might be approached, and has been regularly endorsed and applied to similar discretions to extend time, including that in s 46PO(2): see Bahonko v Royal Melbourne Institute of Technology [2006] FCA 1325 at [21]-[24]; Ingram-Nader v Brinks Australia Pty Ltd [2006] FCA 624; 151 FCR 524 at [11]-[12].

The three principal matters Wilcox J found that a court takes into account are: any explanation for the delay, any prejudice to the respondent or other parties which might be occasioned if the extension of time were granted and the prospects of success of the appeal if an extension of time were to be granted.

See also Ferrus v Qantas Airways Ltd [2006] FCA 812; 155 IR 88 at [19]-[20] (Collier J); Bahonko v Royal Melbourne Institute of Technology [2006] FCA 1325 at [21]-[24] (Weinberg J); and Ingram-Nader v Brinks Australia Pty Ltd [2006] FCA 624; 151 FCR 524 (Ingram-Nader) at [11]-[12] (Cowdroy J).

15    Consistently with the analysis favoured in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; 3 FCR 344 (Hunter Valley) I next consider, in the following order: (1) the delay and the explanation for it; (2) any prejudice to the respondent if the extension is allowed; (3) the prospects of the success if the extension of time were granted; and (4) any other relevant considerations. It is well-recognised that the first three considerations are not exhaustive in every case, and there may be other considerations that bear on the exercise of discretion.

The nature of the delay and the explanation for it

16    As indicated, Ms Wickham filed her application some 59 days after the expiration of the 60-day period prescribed by s 46PO(2) of the AHRC Act. In her written submissions, Ms Wickham submitted that “[t]he period of time sought to be extended is … a relatively short period of approximately one month”. Her affidavit also referred to a delay of “just over a month”. Plainly enough, this is incorrect. It may be that the author of the submissions had in mind the completion of Ms Wickham’s affidavit on 17 November 2018 and overlooked that her application was not filed until 10 December 2018.

17    In this affidavit, Ms Wickham explained that the delay arose in the following circumstances:

In the lead up to the deadline I sought, through a friend, legal advice. That advice was not forthcoming. I then spent some time overseas dealing with some personal matters. I asked my friend to follow up the request for formal legal advice and other administrative requirements of the Court. He did so making several unsuccessful phone call attempts in the first half of October [2018] and leaving his name and contact details on an answering service – he is still awaiting a call back more than a month later. I am in my 82nd year and need assistance with most activities including mobility.

18    In written submissions Ms Wickham further explained that:

In the circumstances seeking assistance or advice from Victoria Legal Aid was out of the question so other non traditional avenues were pursued via personal contact sources and Justice Connect all of which failed to materialise.

Attempts to seek guidance from the Registry of this Court [were] met with unanswered phone calls and a failure to respond to a message left on an answering service.

19    Ms Wickham submitted that, having regard to her attempts to obtain assistance and to the fact that she was “an 81 year old unrepresented person”, she took “reasonable steps to seek advice, assistance and guidance during the relevant period”.

20    VLA drew attention to the fact that Ms Wickham has not provided the Court with any supporting evidence from her friend regarding his efforts to obtain legal advice or to seek assistance from the Registry of this Court, and has not given any evidence about the nature of the personal matters that Ms Wickham said required her to be outside Australia. VLA submitted that Ms Wickham’s “bare assertions, without more, do not sufficiently inform the Court about the reason for the delay or explain why her application could not be filed within time”.

21    The delay in question was not insignificant, although it was not so overly long as to weigh heavily against an extension of time. I accept that the delay arose because neither Ms Wickham nor her friend were able to obtain legal advice and such assistance as they believed they needed. I do not, however, find Ms Wickham’s account to be an adequate explanation of her failure to file an application within the prescribed 60-day period. This is because Ms Wickham has provided few details about her friend’s attempts to obtain advice and assistance or her need to be out of the country at the relevant time. Furthermore, she has provided no corroborative evidence to support her assertions that neither the Court’s Registry staff nor anyone else would assist her friend with his enquiries on her behalf, and Ms Wickham does not claim that she and her friend were unaware of the clear statement in the AHRC’s 13 August 2018 letter that any application to this Court needed to be filed within 60 days of the issue of the termination notice.

Prejudice to VLA

22    Ms Wickham submitted that there was no prejudice to VLA arising from her delay. She contended, in particular, that it was not her fault that she was required first to take her claims to the AHRC, which involved “a tortuous and lengthy” process; and that prejudice should be considered solely in the context of her delay in applying to this Court. Ms Wickham noted that VLA had not “resisted her claims under workers compensation legislation” and that “those claims were directly related to the employment relationship including acts of age discrimination as alleged”. Ms Wickham also contended that it was not her “fault” if VLA “is unable to locate or produce alleged perpetrators”.

23    VLA submitted that it was entitled to regard Ms Wickham’s claim as finalised when she failed to file an application in the Court within the 60-day period prescribed by s 46PO(2) of the AHRC Act. It pointed out that her employment with it had ended on 10 February 2017 and that she had not been in the workplace since 15 May 2014.

24    VLA also noted that, although Ms Wickham filed her application in this Court on 10 December 2018, this application was not served on it at that time, and that VLA only became aware of the application when emailed regarding the first case management hearing in this Court on 28 March 2019. I interpolate here that this aspect of VLA’s submission is consistent with an email to the Court from Ms Wickham’s support person on 21 March 2019 advising that he had forgotten to serve VLA and stating that he would take steps to do so immediately.

25    VLA also submitted that the delay in filing “caused the respondent prejudice because it exacerbates the difficulties the respondent has in addressing complaints of discrimination arising from conduct alleged to have occurred in 2007, 2013 and 2014”, especially as, according to VLA, Ms Wickham “did not raise these complaints of discrimination during her employment and many of the people named in [her] complaint are no longer employed by [it] or [it] cannot contact them to provide evidence”.

26    I accept that from about 12 October 2018 (when the prescribed period expired) until about 28 March 2019 (when VLA became aware of this application) VLA was entitled to regard Ms Wickham’s complaints against it as at an end. It does not follow from this, however, that VLA’s disappointed expectation constituted sufficient prejudice to weigh against the grant of the extension of time sought by Ms Wickham. I reject the proposition that VLA is relevantly prejudiced by Ms Wickham’s 59 days delay in filing her application.

27    Any prejudice to VLA if an extension of time were granted in this case would principally arise from the circumstance that VLA would be called on to answer a complaint of unlawful age discrimination arising from the events, conversations and statements that in some instances occurred between 6 to 12 years ago. In considering extension of time applications under s 46PO(2) of the AHRC Act, some judges have taken the view that the relevant consideration at this point in an analysis consistent with Hunter Valley is only the prejudice caused by the delay in making the application, and not the time that has passed since the events in question on which the application is founded: see Ingram-Nader at [19] (Cowdroy J) and Vergara v Living and Leisure Australia Ltd [2013] FCA 775 (Davies J). Whilst I accept that any prejudice occasioned by the delay in making the application is material in the exercise of discretion, I am inclined to think that the general proposition advanced by their Honours in these two cases may overstate the position.

28    It seems to me that the relevant consideration at this point in the analysis is broader than their Honours contemplated and encompasses, to use Wilcox J’s own words in Hunter Valley at 349, “[a]ny prejudice to the respondent, including any prejudice in defending the proceedings occasioned by the delay”. This was, it seems, the basis on which Markovic J in Reurich v Sureway Employment and Training Pty Ltd [2018] FCA 680 took into account the matter of prejudice occasioned by the passage of time since the events on which the substantial application was based. In that case, her Honour accepted (at [29]) that:

[I]n 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.

29    In that case, however, her Honour added (at [30]-[31]):

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.

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

30    The exercise of discretion in each case must, of course, turn on its particular facts. It is inappropriate in this context, so it seems to me, to lay down any hard-and-fast rule.

31    It is in the long run immaterial, however, whether the relevant consideration at this point of the analysis is only the prejudice to the respondent occasioned by the delay or (as it seems to me) covers any prejudice to the respondent, including prejudice occasioned by the passage of time since the alleged events the subject of complaint. This is because the prejudicial effect of delay occasioned by the passage of time since the challenged events may be considered at different points in the analysis.

32    This consideration may, for example, be material in considering the merits of the substantial application or it may be a separate consideration bearing on the exercise of the discretion. A Court may not be positively satisfied (Hunter Valley at 348) that it is proper to grant an extension of time where the subject of the applicant’s complaint concerns events occurring in the past in circumstances where witnesses may no longer be available and, even if they are, their recollections of the matters in dispute are likely to have been significantly diminished by the passage of time. This consideration may also bear on what Wilcox J described as “[c]onsiderations of fairness as between the applicants and other persons otherwise in a like position” (Hunter Valley at 349). I shall return to this last-mentioned consideration below and consider in this context VLA’s submission concerning the unavailability of witnesses and the dimming of memory.

Merits of the substantial application

33    By her originating application Ms Wickham claims that she was the subject of unlawful discrimination on account of her age. By way of remedy, she seeks a written apology from VLA, that the apology be promulgated to all current VLA staff, and that she be given compensation in an amount to be agreed and/or determined representing lost salary, medical costs and personal distress.

34    In her affidavit, Ms Wickham deposed that the merits of her application were “exceptionally strong” having regard to the totality of the material that was before the AHRC and now the Court. She further deposed that to the extent that her statement of 20 November 2017 (as attached to the notice of termination) set out matters of fact, those facts were “true and correct to the best of [her] knowledge and belief” and that she “sincerely and truly” held the opinions in the statement.

35    Ms Wickham submitted that:

The allegations relate and date to circumstances set out in the material before this Court when she was a 75 year old, healthy, industrious, dedicated and fiercely independent woman who, save for periods of time out of the workforce for child bearing and child raising responsibilities, had enjoyed a proud and unblemished employment record of more than 50 years including lengthy service with the respondent.

She had planned to continue working up to and including her 80th birthday.

She alleges that she was treated differently by her employer, the respondent, on account of her age and relies upon her sworn evidence … and the totality of the material filed in this Court.

36    Ms Wickham submitted that “on any objective view of the facts, circumstances and sworn evidence, she has established at worst an arguable case and at best a very strong case of age discrimination”. Ms Wickham relied particularly on a decision of the United Kingdom Employment Tribunal (Jolly v Royal Berkshire NHS Foundation Trust, case number 3324869/2017).

37    VLA submitted that Ms Wickham’s substantive case was weak. It denied her allegations of age discrimination and contended that its records would support its position.

38    VLA contended that it had “in place appropriate policies and procedures to prevent harassment and discrimination and to enable an employee to make a complaint”. VLA stated that:

Ms Wickham did not raise any discrimination complaint during her employment at VLA, even though she was aware of VLA’s internal complaint processes and policies. The applicant raised a number of complaints and grievances about matters other than discrimination during her employment.

When grievances and complaints of bullying were raised by the applicant, the respondent took steps to investigate these allegations and respond accordingly. In 2007 and 2013, the applicant lodged internal complaints against other VLA employees that did not involve complaints of discrimination. The 2007 investigation revealed behaviour that was not consistent with VLA’s Code of Conduct and the respondent ensured that the relevant individual received an appropriate disciplinary outcome. While the conduct of this individual was not appropriate, there is no evidence to suggest that the conduct was related to the applicant’s age.

39    Regarding Ms Wickham’s complaint in 2013, VLA stated:

In the 2013 investigation, an external investigator found the applicant’s allegations against the relevant individual were substantiated and there had been breaches of VLA’s Code of Conduct and Bullying policy. The respondent took appropriate disciplinary action against this individual and the employment of that individual ceased in 2014. The respondent’s records of this investigation show no evidence that the behaviour and conduct was related to the respondent’s age.

40    VLA submitted that there was no evidence to support Ms Wickham’s present allegation that the behaviour complained of, and investigated, in 2007 and 2013 constituted age discrimination.

41    VLA also submitted that Ms Wickham “was appropriately counselled in relation to underperformance concerns in line with VLA policy and the relevant clauses in the Enterprise Agreement”. VLA denied that its management action taken in relation to Ms Wickham’s underperformance involved any unlawful discrimination.

42    VLA stated that:

The applicant’s employment ceased after the respondent received medical advice from the applicant’s treating practitioner that the applicant could no longer perform the inherent requirements and duties of her role. The termination of the applicant’s employment occurred after she had exhausted her statutory entitlement to workers compensation and utilised all her sick leave entitlements.

43    Ms Wickham’s claims of unlawful age discrimination relate to the alleged conduct of employees of VLA (a body corporate created by the Legal Aid Act 1978 (Vic) (LAA): see s 3(1) and (2)). The LAA provides that the objectives of VLA include the provision of legal aid in the most effective, economic and efficient manner (s 4(a)) and that VLA “does not represent the Crown” (s 5). Under s 15(2) of the LAA, VLA must consult with the Secretary to the State Department of Justice on the terms and conditions of employment of officers and employees.

44    The objects of the Age Discrimination Act include eliminating, as far as possible, discrimination against persons on the ground of age in the area of work, among other areas (s 3(a)). The Age Discrimination Act relevantly provides, in s 18, that:

(2)    It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee’s age:

(a)    …

(b)    …

(c)    by dismissing the employee; or

(d)    by subjecting the employee to any other detriment.

…

(4)    Paragraphs (1)(a), (1)(b) and (2)(c) do not make it unlawful for an employer to discriminate against another person, on the ground of the other person’s age, if the other person is unable to carry out the inherent requirements of the particular employment because of his or her age.

Section 14 addresses direct discrimination and s 15, indirect discrimination.

45    The Age Discrimination Act further provides, in s 57(2), that “[a]ny conduct engaged in on behalf of a body corporate by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority is taken, for the purposes of this Act, to have been engaged in also by the body corporate unless the body corporate establishes that the body corporate took reasonable precautions and exercised due diligence to avoid the conduct.”

46    Section 10(3)(a) of the Age Discrimination Act expressly provides that s 18 has effect “in relation to discrimination against: Commonwealth employees in connection with their employment as Commonwealth employees”. There is no equivalent provision regarding employees of State instrumentalities, as the VLA appears to be. Having regard to the constitutional considerations arising from, or referred to in, Melbourne Corporation v Commonwealth [1947] HCA 26; 74 CLR 31, Victoria v Commonwealth [1971] HCA 16; 122 CLR 353, Re Australian Education Union; Ex parte Victoria [1995] HCA 71; 184 CLR 188, Austin v Commonwealth [2003] HCA 3; 215 CLR 185 and Clarke v Commissioner of Taxation [2009] HCA 33; 240 CLR 272, among others, it may be that notwithstanding the definition of “employment” in s 5, Parliament did not intend s 18 of the Age Discrimination Act to apply to employees of State instrumentalities and s 18 does not apply to VLA and its employees: a similar issue seems to have been alluded to in the context of other federal discrimination Acts, see, for example, Kiefel v State of Victoria [2013] FCA 1398 at [258] (Tracey J); Australia Education Union v Human Rights and Equal Opportunity Commission [1997] FCA 1288 (Merkel J).

47    That the application of the Age Discrimination Act may be limited in this way is supported by s 10(6), which provides that:

(6)    The limited application provisions have effect in relation to acts done by, or on behalf of:

   (a)    the Commonwealth or the Administration of a Territory; or

(b)    a body or authority established for a public purpose by a law of the Commonwealth or a law of a Territory;

in the exercise of a power conferred by a law of the Commonwealth or a law of a Territory.

The phrase “limited application provisions” is relevantly defined in s 9(1) to mean “the provisions of Divisions 2 and 3 of Part 4 (other than sections 23, 31 and 32)”. Section 18 is contained in Div 2 of Pt 4 of the Age Discrimination Act. There is no equivalent provision regarding acts done by, or on behalf of, a State or a body or authority established by a law of a State.

48    It is, however, unnecessary to determine this question (or the related question whether s 18 validly applied to the VLA and its employees in the event the Parliament intended it to do so). This is because, for the reasons set out below, I would not in any event grant the extension of time Ms Wickham seeks.

49    I have set out above Ms Wickham’s contentions about the alleged acts of age discrimination as they were summarised in and updated by the AHRC’s 13 August 2018 letter. Ms Wickham did not contest the AHRC’s summary nor the additional matters to which the AHRC referred. The AHRC’s summary was, in any event, broadly consistent with Ms Wickham’s complaint letter of 20 November 2017 as updated by those additional matters. Ms Wickham’s affidavit did not raise any other matters.

50    The gist of Ms Wickham’s proposed case can be seen in these materials, having regard to the provisions of the Age Discrimination Act, although plainly enough there remain areas that would require elucidation if her case were to proceed in this Court.

51    The most recent event that was the subject of Ms Wickham’s complaint of unlawful age discrimination was VLA’s decision to terminate her employment on 19 December 2016. In the AHRC’s 13 August 2018 letter, the delegate stated that Ms Wickham, with Mr Patrick Carson acting on her behalf, had provided a copy of VLA’s letter to her dated 19 December 2016 advising that:

We received a letter dated 12 December 2016 from [your medical practitioner] in response to [our request] … [Your medical practitioner] gave the following advice:

1)    You are unable to perform the requirements of all duties listed in the attached position description for a legal assistant;

  2)    You have no capacity to return to work with VLA; and

  3)    You are unable to fulfil a working day currently or in the future.

VLA has carefully considered this advice and made a decision that, given there is no likelihood of you returning to work at VLA, we can no longer continue to maintain your ongoing employment status. Regretfully, I have made a decision to cease your employment with VLA on the basis that you do not have a current or future capacity to perform the inherent requirements of a role at VLA.

52    The statement prepared by Ms Wickham dated 20 November 2017 is consistent with the statements attributed to her medical practitioner.

53    The material currently before me indicates that VLA made the decision to terminate Ms Wickham’s employment because she was unable to carry out the requirements of her particular employment. It does not appear that her incapacity was on account of her age. If, however, her inability “to carry out the inherent requirements of the particular employment” was due to her age, it would not improve Ms Wickham’s case. This is because s 18(4) of the Age Discrimination Act provides that s 18(2)(c) does not “make it unlawful for an employer to discriminate against another person, on the ground of the other person’s age, if the other person is unable to carry out the inherent requirements of the particular employment because of his or her age”. This aspect of Ms Wickham’s claim has no prospect of success.

54    The AHRC’s 13 August 2018 letter also sets out Ms Wickham’s claims concerning age discrimination between 2007 and May 2014 during her employment as an Administrative Services Officer at VLA. Ms Wickham alleged that: (a) in 2007, a Head of Division instructed a Senior Solicitor to overload her with work until she broke in an alleged attempt to remove her from VLA; (b) a colleague made her working days in the Family Law Division intolerable by making loud derogatory remarks about her and criticising how she did her work and the time it took her to do it; (c) around mid-October 2013, her direct manager indicated that people in the organisation wanted her out and that he had been instructed to keep notes on any faults with her work, which would be reviewed on a weekly basis; (d) her direct manager occasionally asked whether she did not feel that she was “too old to be working”; (e) from January 2014, her direct manager and the program manager would pointedly check what she was doing and she was initially required to respond in writing to identified faults with her work; (f) she was unfairly accused of being asleep at her desk, disturbing other staff and being unable to perform required tasks; and (g) on 15 May 2014, in response to the stress at work, she had an episode of heart fibrillation and was taken to hospital, after which she did not return to work.

55    The material before the Court concerning these claims consists primarily of Ms Wickham’s written statement of 20 November 2017 and her affidavit of 17 November 2018. Her 20 November 2017 statement sets out her assertions about the events that she alleges constitute unlawful age discrimination. This statement is not in itself evidence of the events that Ms Wickham relates in it. Presumably cognisant of this, Ms Wickham has sworn an affidavit in which she deposed that to the extent that her statement set out matters of fact, those facts are “true and correct to the best of [her] knowledge and belief” and that she “sincerely and truly” held the opinions in the statement. A general deposition of this kind, however, falls well short of providing the Court with a sufficient evidentiary basis to support a conclusion that Ms Wickham has an arguable case of unlawful age discrimination.

56    Furthermore, the bundle of documents that were apparently attached to her statement of 20 November 2017 include documents that support VLA’s submissions that, during her employment with VLA, Ms Wickham was aware of VLA’s internal complaints process and utilised them by making internal complaints. Some documents also support VLA’s submissions that Ms Wickham’s complaints of bullying and harassment in 2007 and 2013 were investigated; and that the individuals the subjects of complaints in 2007 and in 2013 were disciplined. This is consistent with VLA’s submission that it acted appropriately in response to Ms Wickham’s complaints at the time they were made. Some documents are also consistent with VLA’s submission that Ms Wickham was being counselled at the relevant time for underperformance. These matters apparently undermine her allegations that VLA was engaged in unlawful age discrimination against her.

57    For these reasons, Ms Wickham has failed to establish that her proposed case of unlawful age discrimination has sufficient merit to warrant the grant of the extension of time that she seeks.

Fairness as between the applicant and other persons and justice of the case

58    In Hunter Valley (at 349-350) Wilcox J referred to the fact that, in the exercise of discretion to extend time, a court may consider considerations of fairness as between the applicant and others and acknowledged that particular considerations may affect cases involving public administration.

59    Ms Wickham submitted that it would be fair, just and equitable to allow an extension of time in her case, including because it would be in the public interest to do so. This may be a more attractive proposition where an applicant establishes that her or his case has stronger prospects of success in an unlawful discrimination case than Ms Wickham has done here.

60    Another consideration is the fact that, as VLA submitted, at least some of the people who allegedly participated in the alleged events the subject of complaint were no longer in VLA’s employ and may not be readily contactable; and even if they remained in VLA’s employ or were contactable, the ability of potential witnesses to recall the events of up to 12 years ago may well have diminished significantly with the passage of time. Lockhart J took into account evidence of this kind from a Mr Orr in dismissing an application for an extension of time in Hickey v Australian Telecommunications Commission (1983) 47 ALR 517 at 526-527. In Wedesweiller v Cole (1983) 47 ALR 528, on the other hand, Sheppard J referred to the impact of the passage of time on the memories of those concerned and the availability of departmental records from which potential witnesses might refresh their memories, deciding in that case to grant the extension of time. It may therefore be accepted that prejudice of this kind may be considered (whether as relevant to fairness or as a separate factor) although the weight it is given will depend on the circumstances of the particular case, including the availability of contemporaneous documentary records.

61    Bearing in mind that VLA has given no evidence as to its difficulty in locating witnesses, its own references to its “records” and the likelihood that some contemporaneous documentary records continue to be available, this consideration has comparatively little weight in my decision to refuse an extension of time in this case.

Disposition

62    I would refuse Ms Wickham’s application for an extension of time chiefly because, for the reasons set out above, she failed to establish that her proposed case of unlawful age discrimination has sufficient merit to justify the extension of time she seeks. Further, as already stated, in my opinion, Ms Wickham also failed to provide a sufficient explanation for her failure to file an originating application within the prescribed 60-day time limit fixed by s 46PO(2) of the AHRC Act.

63    In the circumstances it is unnecessary to discuss Ms Wickham’s foreshadowed reliance on Jolly in the event an extension of time were granted.

Associate:

Dated:    13 September 2019