FEDERAL COURT OF AUSTRALIA

Akibou Yacouba v Eurocars (Wholesale) Pty Ltd [2020] FCA 317

ORDERS

THE COURT ORDERS THAT:

1.    The respondents' interlocutory application dated 6 November 2019 is dismissed.

2.    The costs of the application are costs in the cause.

3.    Paragraphs 1-5 of the orders made on 2 May 2019 are vacated.

4.    Paragraphs 1-4 of the orders made on 3 July 2019 are vacated.

5.    By 4.00 pm WST on Wednesday 18 March 2020, the respondents must file and serve a defence.

6.    By 4.00 pm WST on Wednesday 25 March 2020, each party must give the court written notice of their unavailable dates in May, June and July of 2020 for a mediation of no more than one day in length.

7.    By 4.00 pm WST on Wednesday 1 April 2020, the applicant must file and serve a reply to the defence.

8.    If the applicant:

(a)    fails to comply with paragraph 6 of these orders; or

(b)    fails to comply with paragraph 7 of these orders,

    then:

(c)    the proceeding is dismissed with immediate effect from the expiry of the time for compliance with the relevant paragraph of these orders; and

(d)    the applicant must pay the respondents' costs of the proceeding, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

JACKSON J:

1    These reasons concern an application by the respondents for the dismissal of the proceeding due to the applicant's failure to comply with programming orders and failure to prosecute the proceeding with diligence.

2    The applicant, Ali Maiga Akibou Yacouba, is self-represented. He is of African descent and, from the evidence, appears to have come to Australia from Niger. The business of the first respondent, Eurocars (Wholesale) Pty Ltd, includes the buying and selling of second-hand cars. The second respondent, Rod Slater, is the sole director and shareholder of Eurocars.

3    Mr Akibou Yacouba's claim concerns an occasion on 16 November 2017 when he and his wife, Lydia Kabambi Ngoy, visited Eurocars' business premises to discuss a car that Ms Ngoy had bought from Eurocars. Mr Akibou Yacouba alleges that on that occasion Mr Slater insulted him, using derogatory and disparaging racist conduct. It appears to be alleged that this included gesticulating and imitating a monkey. Mr Akibou Yacouba claims that Mr Slater thereby contravened s 9(1) of the Racial Discrimination Act 1975 (Cth) which, broadly speaking, makes it unlawful to discriminate on the basis of race. He also claims that Mr Slater used words comparing Mr Akibou Yacouba to a monkey. Mr Akibou Yacouba alleges that Mr Slater thereby contravened the prohibition on offensive behaviour because of race, colour, or national or ethnic origin that is found in s 18C(1) of the Racial Discrimination Act. Eurocars is said to be vicariously liable for Mr Slater's conduct. Mr Akibou Yacouba claims damages and interest and an order requiring Mr Slater to apologise. The statement of claim and an affidavit filed by Mr Akibou Yacouba in support of the originating application says he caught part of the incident on video.

4    Due to the procedural history, which I will describe soon, the respondents have not filed a defence to the claims. They have, however, filed a draft defence. In the draft defence, they admit that Mr Akibou Yacouba and his wife visited Eurocars' business premises on the occasion alleged. The draft defence gives particulars of the lead up to that occasion, and what happened on that occasion which, it is fair to say, indicate that it is at least common ground that there was a heated altercation between Mr Akibou Yacouba and Mr Slater. It is not necessary to describe all the particulars of what I have called the lead up; the draft defence alleges that Mr Akibou Yacouba behaved in a confrontational way in two telephone conversations about the car which was the subject of the altercation.

5    According to the draft defence, on the occasion when Mr Akibou Yacouba and his wife visited Eurocars' premises on 16 November 2017, Mr Akibou Yacouba was shouting, and threw the keys to the car onto a desk, and waved a piece of paper over his head. The draft defence alleges that Mr Slater asked Mr Akibou Yacouba to sit down and show him the piece of paper, which was a vehicle inspection report. The respondents will allege that when Mr Akibou Yacouba refused to do so, Mr Slater poked his tongue out, stuck his thumbs in his ears and wiggled his fingers and tongue. Mr Akibou Yacouba asked him why he did that and Mr Slater, according to the draft defence, said 'Because if you act like a monkey, then you will be treated like a monkey'. The draft defence denies that this conduct was racial discrimination or that the reference to a monkey was a reference to race, and says that instead it was a reference to Mr Akibou Yacouba's behaviour. The draft defence will also plead that there was only a minor defect in the car, which Eurocars repaired at no charge.

6    Mr Akibou Yacouba made a complaint to the Australian Human Rights Commission. On 20 February 2019, a delegate of the President of the Commission terminated the complaint under s 46PH(1B)(h) of the Australian Human Rights Commission Act 1986 (Cth), on the basis that the delegate was satisfied that there was no reasonable prospect of the matter being settled by conciliation. As a result, this court has jurisdiction in relation to these claims by reason of s 49B of that Act.

7    The respondents have applied for the dismissal of the proceeding under r 5.23(1)(b)(i) of the Federal Court Rules 2011 (Cth), on the basis that Mr Akibou Yacouba is in default of compliance with orders of the court. Rule 5.23(1)(b) gives the court a discretion to stay or dismiss a proceeding in whole or in part, either immediately (as the respondents seek) or on conditions.

8    For the following reasons, the application is dismissed. However the history of non-compliance on the part of Mr Akibou Yacouba makes it appropriate to impose serious consequences for any default by him in relation to the next steps in the proceedings.

The procedural history

9    The proceeding was commenced on 5 March 2019, and on the same day Mr Akibou Yacouba filed a statement of claim. On 29 March 2019 he filed an affidavit in support of his application. He served the originating application, statement of claim and affidavit on the first respondent on 15 April 2019 and on the second respondent on 23 April 2019.

10    The first case management hearing took place on 2 May 2019. Mr Akibou Yacouba represented himself, as he has done throughout the proceeding. The solicitor appearing for the respondent raised the point that in order to establish a breach of s 18C of the Racial Discrimination Act, the offensive behaviour must occur 'otherwise than in private'. I will address this requirement in more detail later in these reasons, but at the first case management hearing the respondents' solicitor submitted that the statement of claim did not particularise the basis on which Mr Akibou Yacouba claims that the alleged offensive conduct complied with that requirement. This point was explained to Mr Akibou Yacouba, and I was confident that he understood it. So I ordered him to file and serve an amended statement of claim by 23 May 2019, which was intended to permit him to particularise his allegations on that point, and made orders programming the filing of a defence and any reply after that. I also ordered Mr Akibou Yacouba to email a copy of the video of the incident to the respondents' solicitors. Also, the matter was referred to mediation.

11    Mr Akibou Yacouba did not comply with the direction to file an amended statement of claim or to provide a copy of the video. On 16 May 2019 he sent a letter to the court claiming that he could not comply because of ill health, and asking for an extension of time. The letter attached a medical certificate, which has since been annexed to an affidavit. The medical certificate described the 'diagnosis' as 'epigastric pains with pains referring to the back, also feeling moody and down'. It described symptoms as 'epigastric pain, nauseated, back pain, nauseated [sic], mood swings, unhappy and sad'. It said, under a heading 'Treatment', 'start antidepressants'. It certified Mr Akibou Yacouba as being unfit for work or study from 15 May 2019 (the date of the apparent examination by the doctor) to 15 July 2019. Factors said to 'impact on participation' were 'pain and moods'.

12    A further case management hearing took place on 3 July 2019 to address Mr Akibou Yacouba's non-compliance. He appeared by telephone. He seemed to claim that his financial, health and social circumstances did not permit compliance with the court's orders. He also said that he was going to travel to Niger on 16 July 2019 'to receive care in my home country'. He said he did not know how long he would be away, but it would probably be three to four months. He provided no details of his alleged medical condition, and no evidence at all in support of any of these claims. I made it clear to him that the position he had put was unsatisfactory, and he needed to make progress in the claim he had commenced. He referred to a marriage breakdown (of which there was no evidence) and an unspecified 'security issue'. Orders were made, largely as proposed by the respondents, requiring Mr Akibou Yacouba to file and serve an amended statement of claim by 15 July 2019, programming subsequent pleadings, and requiring the video to be provided by 8 July 2019. The referral to mediation was repeated.

13    Mr Akibou Yacouba then failed to comply with any of these orders. That included a failure to provide unavailable dates for the mediation. The respondents signalled an application to dismiss the proceeding for his continued default. Both parties provided minutes of orders; Mr Akibou Yacouba's sought further extensions of time.

14    Another case management hearing took place on 30 October 2019. Mr Akibou Yacouba appeared in person. Mr Akibou Yacouba once again referred to health issues and a marriage breakdown, without any evidence to support those claims. Orders were made to programme an application by the respondents to dismiss the proceedings, that is, the present application.

15    The respondents filed the application on 6 November 2019 together with an affidavit in support. The affidavit deposed to Mr Akibou Yacouba's non-compliance with the court's directions. It annexed correspondence with him about his default, in which he said he came back from Africa on 17 September 2019.

16    According to the affidavit, Mr Akibou Yacouba had previously filed multiple proceedings against the respondents. These were described as (paragraph 21):

(a)    A Minor Case claim in the Magistrate's Court, filed in March 2018, and finalised by consent orders.

(b)    On or around December 2018, a complaint to the WA Equal Opportunity Commission which resulted in no finding against the Respondents. I am unsure as to the details of that action.

(c)    Around January 2019, a complaint to the Australian Human Rights Commission, which resulted in a Termination Notice being issued.

(d)    On 3 May 2019, a claim in the Federal Court, WAD 194 of 2018; discontinued by Notice of Discontinuance filed on or around 22 November 2018.

17    On 28 November 2019 Mr Akibou Yacouba filed written submissions in opposition to the application to dismiss the proceeding, and an affidavit in support. In the affidavit he said that for some time he had been 'seriously sick' without any family support available. He said this contributed to an 'inability' to comply with the orders of the court. The affidavit annexed the medical certificate I have described along with another, dated 21 October 2019, which stated a diagnosis of 'adjustment disorder' and symptoms of 'poor concentration, motivation appetite Multiple life stressors'. The certificate identified Mr Akibou Yacouba as unfit for work or study from 21 October 2019 to 21 November 2019. The affidavit also said (paragraph 7):

On 12 June 2019 I wrote to the Court to [sic] explaining that I was obliged to travel to Africa to seek medical attention as a result of my poor health condition at the time, the reason being that I have had similar issues in the past and the treatment I received back home helped me to a great extent, here are my travel documents and visa renewal.

18    The affidavit then repeated that throughout the entire period Mr Akibou Yacouba had been 'seriously sick' and referred to a separation from his wife and inability to see his children on a daily basis, which caused him to suffer 'sadness and severe depression'. It annexed a court document from which it appears that there are, or at least in June 2019 were, proceedings in the Magistrates Court of Western Australia between Mr Akibou Yacouba and his wife. It attested to his intention, having returned from Africa, to resolve the proceeding 'as considerately and promptly as possible' and his '100% commitment toward resolving this matter'. It says that his delay was not intentional or deliberate.

19    The affidavit also disputed the claim made on behalf of the respondents that Mr Akibou Yacouba had commenced five previous proceedings against them. It annexed a consent order dated 11 April 2018 which appears to have finalised the Magistrates Court proceeding mentioned in Ms Macleod's affidavit, which indicates that the proceeding was brought by Ms Ngoy, albeit clearly with Mr Akibou Yacouba's involvement. It seems from the orders that, in effect, the proceeding was resolved by the reversal of a car trade-in transaction, that had taken place between Eurocars and Ms Ngoy. Mr Akibou Yacouba claims in his affidavit that the Magistrates Court litigation had nothing to do with the present proceeding, but given the date and the subject matter of the consent order I do not accept that; it is open to be inferred that the proceeding concerned the used car that was the subject of the altercation on 16 November 2017.

20    As for the other proceedings, the affidavit indicates that the complaint made to the Western Australian Equal Opportunity Commission in December 2018 was not accepted because there was a concurrent complaint to the Commonwealth Human Rights Commission. The discontinuance of the previous Federal Court proceeding is explained on the basis that the Human Rights Commission did not issue a notice of termination of the complaint to it before the prior Federal Court proceeding was commenced, so Mr Akibou Yacouba could not pursue that proceeding: see s 46PO of the Australian Human Rights Commission Act. The Human Rights Commission subsequently reopened the complaint and then terminated it under s 46PH, permitting Mr Akibou Yacouba to commence the current proceeding.

21    There is no reason not to accept this evidence. So while it shows a number of proceedings have been commenced, the explanation for that is a combination of the ongoing dispute about the car, which needed to be resolved in the Magistrate's Court, the need to complain to the Human Rights Commission before bringing any proceeding in this court and, I infer, some misunderstanding of the procedures to be followed. While I will take the number of prior proceedings into account as a factor relevant to the exercise of discretion as to whether to dismiss the proceedings, I do not consider that the circumstances rise to the level of showing Mr Akibou Yacouba (or his wife) to have been vexatious to date in relation to the proceedings involving the respondents.

22    The application for dismissal of the present proceeding was listed for hearing on 28 January 2019. Shortly before the hearing, the court received notice that Mr Akibou Yacouba would be unable to attend. Admissible evidence as to why only emerged later, and I will describe that evidence shortly. As it transpired, Mr Akibou Yacouba appeared by telephone with the assistance of an interpreter. Given the uncertainty about why he was unable to attend in person and what that meant for his ability to conduct the proceeding on his own behalf, I adjourned the matter to 19 February 2020 and made directions for the filing of evidence about the circumstances which were apparently preventing Mr Akibou Yacouba from attending.

23    As it transpired, Mr Akibou Yacouba did not file any evidence pursuant to the direction to clarify the position. He was, however, able to appear in person at the reconvened hearing on 19 February 2020. I took the view that in the circumstances that hearing, too, should be adjourned. I made orders giving Mr Akibou Yacouba a final chance to file any affidavits on which he wanted to rely, and made orders to that effect. I made it clear that if he did not strictly comply with those orders, that would put him at a serious disadvantage in resisting the respondents' application.

24    In compliance with the directions, Mr Akibou Yacouba did file a further affidavit on 28 February 2020. The affidavit said that he had been unable to send the video to the respondents' solicitors because his mobile phone 'was faulty at the time'. It repeated much of the material in his earlier affidavit. It deposed to the breakdown of his marriage and inability to see his children and said that this, along with what he asserted were Mr Slater's offensive words, 'affected my life severely and as a result, I suffered sadness, severe depression and other serious health issues and I was unable to handle day to day affairs'.

25    The affidavit exhibits a USB thumb drive which has two videos on it. With the consent of the parties I have viewed the videos. It is not necessary to describe them in detail; it is enough to say that they show conduct on the part of Mr Akibou Yacouba and on the part of Mr Slater which is capable of supporting both sides' allegations as I have described them. I have reached no view as to how strong Mr Akibou Yacouba's claim is, because that will depend on considering the video in the context of full evidence. But the video does show that Mr Akibou Yacouba's claim is not a far-fetched or fanciful one or a matter of pure fabrication; things were said in the altercation which raise a real question as to how they should be characterised for the purposes of the Racial Discrimination Act.

26    Mr Akibou Yacouba's affidavit also annexed what he describes as 'recent mental health evidence that shows my illness has been ongoing and serious'. That evidence is an inpatient treatment order apparently made by a psychiatrist, which resulted in Mr Akibou Yacouba being an involuntary inpatient in Graylands Hospital. This is the explanation for his inability to appear in court on 28 January 2019, which I have already mentioned. The order appears to have been made on 28 January 2020 and it expired on 18 February 2020. It bears the name and what appears to be a registration number of the psychiatrist. It does not bear the psychiatrist's signature, but that may be explicable on the basis that it is a patient copy. I am prepared to accept it in evidence as prima facie evidence of what it shows. It supports a finding that, at least on 28 January 2020 and for a time thereafter, Mr Akibou Yacouba suffered from a mental illness serious enough to require his involuntary admission to a hospital.

Principles

27    Rule 5.22(b) of the Federal Court Rules relevantly provides that a party is in default if the party fails to comply with an order of the court. Rule 5.23(1) provides:

If an applicant is in default, a respondent may apply to the Court for an order that:

(a)    a step in the proceeding be taken within a specified time; or

(b)    the proceeding be stayed or dismissed for the whole or any part of the relief claimed by the applicant:

(i)    immediately; or

(ii)    on conditions specified in the order.

28    The court's case management system is the backdrop against which r 5.23 must be considered and applied. By that system, the court seeks to minimise the delays of litigation by issuing procedural directions which the parties are expected to observe, and in return the court does its best to give the parties an early hearing date: Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388 at 395.

29    In addition, the court is obliged to interpret and apply r 5.23, and to exercise the power it confers, in the way that best promotes the overarching purpose of the civil practice and procedure provisions, which include the Federal Court Rules. The overarching purpose is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible: Federal Court of Australia Act 1976 (Cth) s 37M(1).

30    Counsel for the respondents chiefly relied on observations in Black & Decker (Australasia) Pty Ltd v GMCA Pty Ltd [2007] FCA 1623. But that was not a case about r 5.23 or its predecessor. Lenijamar is still the leading authority on that rule. The following observations of Wilcox and Gummow JJ at 395-396 remain apposite:

It is to be noted that the power given by this rule is conditioned on one circumstance only: the failure of a party to comply with an order of the Court directing that party to take a step in the proceeding. There is no requirement of intentional default or contumelious conduct, although the attitude of the applicant to the default and the Court's judgment as to whether or not the applicant genuinely wishes the matter to go to trial within a reasonable period will usually be important factors in weighing the proper exercise of the discretion conferred by the rule. There is no requirement of 'inordinate and inexcusable delay' on the part of the applicant or the applicant's lawyers, although any such delay is likely to be a significant matter. There is no requirement of prejudice to the respondent, although the existence of prejudice is also likely to be significant. And it must be remembered that, in almost every case, delay adversely affects the quality of the trial and is an additional burden upon the parties.

31    Of course, not any failure to comply with an order will appropriately result in the dismissal of a proceeding. The rules must be administered sensibly and with an appreciation of the fact that some delays are unavoidable and unpredictable even by the most conscientious of parties and their lawyers. The court must also appreciate the likely serious consequences to an applicant of staying or dismissing a claim. It may not be appropriate for a respondent to apply for dismissal because of non-compliance which does not cause or indicate a continuing problem in preparing the matter for an early trial: Lenijamar at 396.

32    As for the discretion which is enlivened if the conditions in the rule are fulfilled, it is unconfined save by the requirement that the applicant be in default: Professional Administration Service Centres Pty Ltd v Commissioner of Taxation [2012] FCAFC 180; (2012) 295 ALR 52 at [35]. It would be undesirable to make any exhaustive statement of the circumstances in which it will appropriately be exercised: Lenijamar at 396 and see Pincus J agreeing at 402. In Lenijamar Wilcox and Gummow JJ said at 396 that there are nevertheless two situations that are:

obvious candidates for the exercise of the power: cases in which the history of non-compliance by an applicant is such as to indicate an inability or unwillingness to co-operate with the Court and the other party or parties in having the matter ready for trial within an acceptable period and cases - whatever the applicant's state of mind or resources - in which the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent.

33    In the first of those situations, a conclusion that an applicant is unable or unwilling to cooperate with the court and the other parties will not readily be reached, but when it is, fairness to the respondent would normally require the summary dismissal of the proceeding: Lenijamar at 396.

34    In the second of the situations, where there has been a significant continuing default, 'it does not really matter whether there have been earlier omissions to comply with the court's directions. Ex hypothesi the default is continuing and is imposing an unacceptable burden on the respondent': Lenijamar at 396-397.

35    In Lenijamar at 402, Pincus J, who was in substantial agreement with Wilcox and Gummow JJ, observed that:

commonly the problem is to balance the desirability of letting the party in default present his or her case, in order that the substance of the dispute may be dealt with, against the desirability of encouraging compliance with the Court's directions. If non-compliance is routinely excused and never visited with significant penalties, it is likely to increase.

36    The importance of that last consideration has only increased since Lenijamar was decided in 1990. The enshrinement of the overarching principle in s 37M and s 37N attests to that.

37    Dismissing an application for default is a very large step for the court to take, and it should not be taken save in a clear case of quite serious default: ACOHS Pty Ltd v Ucorp Pty Ltd [2009] FCA 577 at [27] (Jessup J). In Geneva Laboratories Ltd v Prestige Premium Deals Pty Ltd (No 4) [2016] FCA 867; (2016) 120 IPR 133 at [74], Bromwich J identified another factor which demands caution, namely that because:

such orders are interlocutory, discretionary and heavily fact-and-circumstance driven with adverse value judgments being required, once the power is exercised it is generally difficult to overturn that decision. Leave to appeal must be obtained and it will not be enough that the Full Court might not have made the same decision: error must be shown. Questions of assessment and value judgment in the making of the order, and in reaching the factual conclusions that ground such an order, are therefore not readily amenable to appellate intervention.

Has the discretion to dismiss the proceeding been enlivened?

38    There is no doubt that in view of the procedural history outlined above, the court has power to dismiss this proceeding. Mr Akibou Yacouba has failed to comply with several orders of the court, and so is in default as defined in r 5.22(b). He has now complied with the order to provide a copy of the video to the respondents, but remains in default of the orders to file an amended statement of claim and to provide unavailable dates for mediation.

Should the discretion be exercised so as to dismiss the proceeding?

39    The respondents submit that Mr Akibou Yacouba has 'exhibited a complete disregard and lack of good faith for the due process of these proceedings and the overarching purpose of the Federal Court Act'. They submit that the two medical certificates only cover the periods of 15 May 2019 to 15 July 2019 and 21 October 2019 to 21 November 2019. Even then, the respondents submit, unfitness to work does not explain the failure to send a video or to provide available dates for mediation, and the involuntary admission of Mr Akibou Yacouba to hospital only covers the period 28 January 2020 to 18 February 2020. The respondents submit that, outside those periods, there was no reason why Mr Akibou Yacouba could not comply with the court orders and 'he simply chose not to do so, chose to ignore the order, and chose to ignore the court's warning and comments'.

40    The respondents' frustration is understandable. On one view of history of the matter, Mr Akibou Yacouba has commenced a proceeding, failed to comply with simple procedural steps he was ordered to take, and travelled to Africa for an extended period in the midst of the proceeding, causing it to be held effectively in abeyance.

41    However I am not persuaded that the matter is a simple as that. I am not prepared to conclude that Mr Akibou Yacouba simply chose not to comply, and chose to ignore the orders of the court. If he did, that would be contumelious disregard of the court's orders which would provide ample basis to dismiss the proceeding. But the evidence that he has provided, as incomplete as it is, indicates that he has experienced major disruption in his life since he commenced the proceeding. That has included separation from his wife, court proceedings brought by her against him, and mental health issues.

42    It is not clear precisely what the mental health issues were, but it appears that they were serious enough to lead to Mr Akibou Yacouba's involuntary admission to a mental health facility. In those circumstances, I am not prepared to find, as the respondents urge me to, that during the periods not covered by medical certificates or by the involuntary admission, Mr Akibou Yacouba was fit to conduct the proceedings, nor do I find that he simply chose to ignore the orders of the court. Rather, the impression left by the evidence is that the multiple causes of disruption in his life over the past year, including what were evidently serious mental health issues, left his life in such disarray that he was unable to devote sufficient time and attention to the proceeding to ensure that progress was made.

43    The respondents also submit that Mr Akibou Yacouba's application against them is doomed to fail. Their submissions focus on what they describe, correctly in my view, as his main claim, which is under s 18C of the Racial Discrimination Act. That section provides:

18C Offensive behaviour because of race, colour or national or ethnic origin

(1)    It is unlawful for a person to do an act, otherwise than in private, if:

(a)    the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

(b)    the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

(2)    For the purposes of subsection (1), an act is taken not to be done in private if it:

(a)    causes words, sounds, images or writing to be communicated to the public; or

(b)    is done in a public place; or

(c)    is done in the sight or hearing of people who are in a public place.

(3)    In this section: public place includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.

44    The respondents make submissions about why, viewed objectively, the things Mr Slater said and the gestures he made were not said and done because of Mr Akibou Yacouba's race, and are not sufficiently serious to meet the standard set by s 18C. However that is a matter that can only be resolved on the basis of all the evidence, and it would not be appropriate to resolve it for the purposes of an interlocutory application. It was not the main focus of the submission that the application was doomed to fail.

45    That focus was, rather, on the requirement that the act said to be offensive must occur 'otherwise than in private'. The respondents refer to their draft defence, where it is pleaded that the conversation occurred inside a private office with only Mr Akibou Yacouba, Ms Ngoy, Mr Slater and a Eurocars employee present. The respondents rely on the decision of McLeod v Power [2003] FMCA 2; (2003) 173 FLR 31 at [71]-[73], in which a federal magistrate held that a conversation at a gatehouse to a prison was not held 'otherwise than in private' even though that place was open to the public. The magistrate held at [50] that the conversation was not intended to be overheard by members of the public and 'it is not sufficient that the applicant establish that the act complained of occurred in a public place. He needs to establish that it did not occur in private'. The respondents here submit that as no other party was privy to or heard the altercation of 16 November 2017, it does not satisfy the requirement that it be otherwise than in private.

46    I do not accept that this is a reason why, in the exercise of discretion, I should dismiss the proceeding. Questions such as precisely where the relevant people were when the altercation took place, the configuration and proper characterisation of that place, and who else, if anyone, was there or could hear it, are all quintessentially matters that can only be determined after full evidence. All the respondents have provided is a draft pleading; that is not evidence. In any event it is difficult, with respect, to reconcile the decision in McLeod v Power with the apparent deeming effect of s 18C(2)(b) and s 18C(2)(c) of the Racial Discrimination Act. As counsel for the respondents properly pointed out, in Sidhu v Raptis [2012] FMCA 338 at [19], Smith FM held that McLeod v Power was clearly wrong.

47    In short, the respondents' defence raises potentially contentious issues of both fact and law which cannot be resolved on an application such as the present one. The merits of the matter indicate that there are real questions to be tried, and that is a factor which weighs against dismissing the proceeding.

48    In those circumstances, the court should give weight to the fact it would be a serious step to dismiss the proceeding. I have cited the authorities to that effect above. In this context, it is relevant to note that if Mr Akibou Yacouba were to try to recommence proceedings in relation to the incident on 16 November 2017, he would now be outside the 60 day time limit imposed under s 46PO(2) of the Australian Human Rights Commission Act, although that provision permits the court to extend the time.

49    I have already described the evidence concerning the respondents' claim that this is the fifth proceeding that Mr Akibou Yacouba has brought against them. For reasons that I have already described, I do not give that much weight in favour of the exercise of the discretion to dismiss the proceeding.

50    As Lenijamar indicates, past default is not the only issue; if the evidence establishes that an applicant will be unable or unwilling to prosecute the proceeding in future, that will favour dismissal of the proceeding. Mr Akibou Yacouba has expressed a wish to resolve the dispute as promptly as possible and it is not clear on the evidence whether the health issues which appear to have caused non-compliance in the past will continue. Given the other matters I have outlined, I am not persuaded that this uncertainty warrants immediate dismissal of Mr Akibou Yacouba's claim here. Nevertheless, the history of the matter is sufficient cause for concern about whether the proceeding will indeed be pursued expeditiously in future.

51    As far as prejudice to the respondents goes, they did not submit that the lapse of time is inhibiting their ability to mount a defence, for example because of the fading of witnesses' memories. But they did submit that the effect of the delay has been an inability to 'get on with their lives, and attendant stress, while the litigation has been in abeyance for 7 months'. That may be readily accepted; the stress of litigation is real, especially for individuals, and it is bound to be exacerbated if the proceedings become drawn out.

52    The need to ensure that there are sanctions for default in compliance with the court's directions is also an important factor to take into account.

53    Nevertheless, on the basis of the considerations I have described, I am not satisfied on balance that it is in the interests of justice to dismiss the proceeding at this time. There is a real question to be tried and Mr Akibou Yacouba has provided an explanation for his default, from which I conclude that it has not been deliberate or otherwise contumelious.

54    But the explanation Mr Akibou Yacouba has given is neither complete nor compelling, and I accept that if the matter continues to be drawn out, the prejudice to the respondents will be unacceptable. It is also important to ensure that future non-compliance will be visited with consequences, especially since the court cannot have full confidence that Mr Akibou Yacouba will be able and willing to prosecute the action promptly in future. In my view, it is appropriate to impose conditions which will lead to the dismissal of the proceeding on a self-executing basis if Mr Akibou Yacouba fails to comply with the next steps which I will order him to take.

55    In the circumstances, that will include the filing of a reply. Since the defence, when filed, will raise the question of whether the incident occurred otherwise than in private, the filing of a reply will be a more efficient way to join issue on that question than an amendment to the statement of claim. Once again, I have explained the nature of the issue to Mr Akibou Yacouba and I am satisfied that he understands it.

56    In the circumstances it is also appropriate to depart from the usual rule that costs follow the event, and to order that the costs of the interlocutory application, including reserved costs, are costs in the cause.

Associate:

Dated:    11 March 2020