Federal Court of Australia

Ferguson v Tasmanian Cricket Association (trading as Cricket Tasmania) (No 3) [2022] FCA 1269

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for an extension of time in which to file an originating application is dismissed.

2.    Costs are reserved.

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

REASONS FOR JUDGMENT

BROMBERG J:

1    Between 15 August 2015 and 5 December 2017 the applicant, Ms Renee Ferguson, was employed by the respondent the Tasmanian Cricket Association (TCA) in the position of Receptionist/Administration Officer. Ms Ferguson claims that during that employment she was sexually harassed at various times by four employees of TCA.

2    Her claims of sexual harassment in breach of the Sex Discrimination Act 1984 (Cth) (SD Act) were raised in a complaint made by her to the Australian Human Rights Commission (AHRC) on 13 August 2018 (complaint). The AHRC has legislative authority to conciliate a complaint of the kind made by Ms Ferguson. However, no effective conciliation of Ms Ferguson’s complaint occurred and, on 2 November 2018, the President of the AHRC terminated Ms Ferguson’s AHRC complaint on the basis that there was no reasonable prospect of the complaint being settled.

3    Once a complaint such as that made by Ms Ferguson has been terminated by the AHRC, an opportunity is then provided by s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) for an affected person (in this case Ms Ferguson) to make an application to this Court alleging unlawful discrimination, against one or more of the respondents to the terminated complaint (in this case TCA). However, that opportunity is not unlimited in time. Section 46PO(2) of the AHRC Act relevantly provides that an application to this Court must be made within 60 days of notification of the termination of the AHRC complaint or “within such further time as the court concerned allows”.

4    Consequently, Ms Ferguson had until 2 January 2019 to make an application to this Court without requiring the Court’s prior approval. Ms Ferguson did not make her application until 26 November 2021. As a consequence of that lateness, Ms Ferguson was required to seek the Court’s consent to extend the 60 day period to make her application which had been available to her as of right. Her application for that extension of time is the subject of these reasons for judgment.

5    For the reasons which follow, I have determined that Ms Ferguson’s application for an extension of time should be rejected. Broadly stated, in circumstances where Ms Ferguson delayed for 2 years and 10 months in bringing her application, has failed to provide an adequate explanation for that delay and where her delay has likely caused prejudice to TCA and other persons, I am not satisfied that it is in the interests of the administration of justice to permit Ms Ferguson to make her very late application.

6    I should emphasise at the outset that it has neither been possible nor would it have been appropriate for the Court, at this stage of the proceeding, to determine whether the allegations of sexual harassment made by Ms Ferguson are established on the balance of probabilities or, conversely, have no merit. That determination could only be made at a trial where numerous factual disputes raised by Ms Ferguson’s proposed application could be resolved after contested evidence had been tested and weighed. Conscious of the significant media attention which has been given to this proceeding, I seek to emphasise that my decision is not a vindication of either Ms Ferguson or TCA’s version of events. The reason why Ms Ferguson’s application is being dismissed should not be misunderstood or misrepresented. The considerations, which have weighed heavily on me, in arriving at my decision have little to do with the competing allegations about the conduct of various individuals. The decision I have reached is based on Ms Ferguson’s failure to satisfy me that the interests of justice require that, in the face of her very lengthy and unexplained delay as well as the likely prejudice to TCA and others, she should be permitted to make her belated application.

Extension Of Time – Relevant Legal Principles

7    Ms Ferguson’s application for an extension of time is made pursuant to both s 46PO(2) (mentioned above), and s 46PO(3A). The reliance made on s 46PO(3A) seems to be misconceived. Ms Ferguson does not require leave to make her substantive application as might be given by the Court under s 46PO(3A)(a). That is because the exception referred to in s 46PO(3A)(c) is applicable, as Ms Ferguson’s complaint to the AHRC was terminated under s 46PH(1B)(b).

8    Section 46PO(2) confers a broad discretion on the Court to extend, beyond the 60 days specified in that provision, the time by which an application to this Court can be made following the termination of a complaint made to the AHRC. Like most if not all judicial discretions, the interests of the administration of justice will be a governing consideration in the way the discretion is exercised: see James v WorkPower Inc [2018] FCA 2083 at [31] (Mortimer J). As her Honour went on to observe (at [31]), how the assessment of that governing consideration is to be undertaken will vary depending on the nature of the power in issue and the circumstances which give rise to the request for its exercise.

9    The nature of the power given by s 46PO(2) to extend time is not, in substance, materially different from the power conferred by s 477A of the Migration Act 1958 (Cth) pursuant to which an extension of time may be granted to bring an application in relation to a ‘migration decision’ where this Court considers it appropriate and is satisfied that it is necessary in the interests of the administration of justice. That provision was recently considered by the High Court in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28. As to the nature of the power and how the interests of the administration of justice were to be assessed, Kiefel CJ, Gageler, Keane and Gleeson JJ made the following observations at [10]-[12] (citations omitted):

The “may” in the chapeau to s 477A(2) confers an authority to exercise the jurisdiction conferred under s 476A(1)(b) or s 476A(1)(c) of the Act, and is not merely facultative in nature. The power is discretionary in the sense that it involves an evaluative judgment as to a state of satisfaction.

At a high level of generality, it may be accepted that the purpose of a power to extend time is “to eliminate the injustice a prospective [applicant] might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced”. However, what amounts to injustice in this context is not obvious. The text of s 477A reveals a legislative intention to restrict the Federal Court’s exercise of its original jurisdiction under s 476A(1)(b) and (c) by a 35 day time limit on applications, and to ameliorate injustice that might result from that time limit by allowing that time to be extended only in cases where a judge has reached the state of satisfaction in s 477A(2)(b).

On its face, the power conferred by s 477A(2) is unfettered except by the requirements of a written application in conformity with s 477A(2)(a) and the Court's satisfaction that an order extending time “is necessary in the interests of the administration of justice”. Other than the “interests of the administration of justice”, there are no mandatory relevant considerations, whether express or to be implied from the “subject-matter, scope and purpose” of the Act. The focus of s 477A(2)(b) is not on the interests of the applicant, but the broader interests of the administration of justice. So framed, the paragraph allows the Court to look at a myriad of facts and circumstances, including the length of the applicant's delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application. The level of satisfaction for the Court to reach is not low: the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice.

10    Taking into account and applying those observations, to my mind, the primary purpose of s 46PO(2) is to impose a time limit on the making of an application. However, the power there given to extend time recognises that the imposition of a rigid time limit may inflict injustice upon a prospective applicant. To avoid or ameliorate that potential for injustice, an extension of time may be granted but only where the interests of the administration of justice so require. To assess what the interests of the administration of justice require, a broad inquiry may be necessary which takes into account “a myriad of facts and circumstances”, including those which have often been regarded as the primary (though non-exhaustive) considerations identified in Tu’uta Katoa as:

(i)    the length of the applicant’s delay;

(ii)    the reasons for the delay;

(iii)    any prejudice to the respondent or third parties; and

(iv)    the merits of the underlying application.

11    Other considerations which may be relevant, given the subject matter of a prospective application which alleges a contravention of the SD Act, may include the seriousness of the allegations of discrimination which are sought to be pursued and whether the allegations raise matters of public importance or of general application: see James at [38].

12    It seems to me that each of the considerations specifically identified above are capable of informing the Court as to whether the interests of the administration of justice favour the grant of an extension of time for Ms Ferguson to make her substantive application. I will turn to consider each of those considerations noting that there is an obvious overlap between several of them.

Length of Delay

13    The length of Ms Ferguson’s delay tends very significantly against the grant of an extension of time. The delay of some 34 months equates to about seventeen times the 60 day period in which s 46PO(2) requires an application to ordinarily be made.

14    A lengthy delay is likely to be more prejudicial to the respondent and to third parties than a short delay. A lengthy delay is also likely to be harder to explain and justify. I turn next to each of those matters.

Prejudice To TCA And To Third Parties

15    TCA contended that a belated application would prejudice the defence which it could have pursued if Ms Ferguson’s application had been made in a timely manner. Supported by evidence of its attempts to find the witness, TCA contended that it could not now find a key witness namely, one of the four former employees whom Ms Ferguson alleges was a perpetrator of unwelcome sexual advances made to her while she was employed by TCA. TCA also contended that its defence would be prejudiced because each of the alleged perpetrators were no longer employed by TCA and that, as a consequence, those persons may be more difficult to access including for the purpose of obtaining instructions.

16    As to the inability to locate a potentially important witness, I accept that Ms Ferguson’s lengthy delay may well cause substantial prejudice to TCA. It is by no means certain that the delay is wholly or substantially responsible for TCA’s inability to find the former employee, but it may be inferred that the passing of time may have made a contribution. Nevertheless, the predicament which TCA would face if an extension of time was granted can be addressed by other means. If I had granted the extension of time sought, I would have stayed that part of Ms Ferguson’s case which relied upon the alleged conduct of the witness in question. If prior to the trial the witness was located or Ms Ferguson was able to establish that her delay bore no responsibility for the incapacity to find the witness and it were otherwise fair and just to do so, I would have discharged the stay imposed.

17    As to the contention that former employees may be less accessible to TCA, I very much doubt that that will be the case. The former employees have their own interests including their own reputations to protect and there is every reason, including because of the cooperation already displayed by them in respect of their willingness to provide evidence to support TCA’s opposition to the extension of time application, to think that TCA will get the access to those persons that it requires.

18    I accept, however, that TCA will likely be prejudiced by reason of the effluxion of time naturally impairing the capacity of witnesses to recollect events in the context of a trial, the outcome of which is likely to turn on oral rather than documentary evidence. It is now around 5 years since the latest of the contested events occurred. Although both parties may be prejudiced in that respect, the prejudice that may be suffered by TCA and also by the former employees whose conduct is impugned will not be of their own making. Whether Ms Ferguson bears responsibility for the delay is a matter to which I will return.

19    Although not specifically relied upon by TCA, I also harbour grave concern that Ms Ferguson’s delay has inflicted unnecessary harm and prejudice upon the former employees who she has variously accused of conduct which, if true, may be characterised as ranging from highly offensive through to dehumanising. It is not difficult to infer that the accused individuals have likely suffered reputational harm and consequent prejudice to their careers as well as personal relationships with family, friends and colleagues. Nor is it difficult to infer that the public airing of serious allegations made against them may have had both emotional and possibly mental health ramifications for those individuals.

20    It must be recognised, however, that personal if not financial harm of that kind is commonly experienced by those involved in litigation. Some harm of that kind is generally unavoidable. It is simply a fact of life that disputation is not a victimless sport and that the guilty as well as the innocent usually walk away somewhat bloodied by the experience. However, that reality is part of the reason why the law generally insists upon litigation being brought and resolved in a timely manner. The longer accusations are left to stew unresolved the longer it is that the accused will suffer. Even those that are guilty are entitled to be dealt with in a timely fashion so that, having paid the price of their misconduct, they can get on with their lives. Time limitations upon the institution of proceedings as well as the law’s insistence that litigation must be brought to a timely end, serve to avoid the unnecessary elongation of disputation and its inherently harmful consequences for the lives of the people involved. Disputation cannot simply be left to fester. It is in the interests of the administration of justice that disputants be provided with timeliness and finality.

21    Those observations do not overlook the fact that the accuser (in this case Ms Ferguson) has also likely suffered greatly as a result of the fact that personal and sensitive disputation which could have been resolved many years ago still stands at the threshold. There is evidence before me of Ms Ferguson’s suffering to which I will shortly turn but I have little doubt of the likelihood that her own suffering has been exacerbated by the very lengthy delay involved in the making of her application.

22    However, the harm suffered by the accuser may be weighed differently to that suffered by the accused. It is both relevant and necessary to consider who bears responsibility for the delay and the consequent harm it has brought about. That is a matter to which I turn next. Unless Ms Ferguson can persuade me that there are reasons which exonerate her from responsibility or substantially ameliorate that responsibility, the prejudice to TCA and its four former employees which I have here discussed should weigh heavily against the grant of an extension of time.

Is there a sufficient explanation for the delay?

23    There are essentially four reasons given by Ms Ferguson for her delay in making her application.

24    First, Ms Ferguson deposed that prior to lodging her AHRC complaint, she made complaints to TCA about the alleged sexual harassment that she suffered. Whether or not she made those complaints is a matter in contest and TCA led substantial evidence denying that any such complaints were made. However, I do not need to resolve that issue. I do not see how the fact of Ms Ferguson making complaints prior to lodging her AHRC complaint provides a reason which explains the delay in making her application to this Court after the AHRC complaint was terminated.

25    Second, Ms Ferguson says that she lodged her complaint with the AHRC and there was no progress made “due to the fact that [TCA] failed to respond to the complaint and failed to engage in the conciliation process in a meaningful way.” That evidence was not challenged by TCA, but again and assuming that to be the fact, it does not explain the delay in question.

26    Third, Ms Ferguson seeks to explain her delay in initiating legal proceedings by asserting that she had made attempts to resolve her claims through negotiations. I accept that as a general proposition, rational attempts to resolve proposed litigation by conciliation, negotiation or by some other non-curial process, may justify a delay in the commencement of litigation where those attempts have failed.

27    However, the attempts made by Ms Ferguson do not justify her delay. Ms Ferguson deposed that she made non-curial attempts at resolution outside of the conciliation provided by the AHRC. Those attempts were almost wholly made with Cricket Australia and not TCA. Presumably that was so because Ms Ferguson considered that Cricket Australia had the capacity to influence TCA. Ms Ferguson’s initial and follow up correspondence to Cricket Australia dated 29 October 2018 and 1 November 2018 occurred prior to the termination of her AHRC complaint and cannot explain the delay in question. On 12 November 2018, Cricket Australia advised Ms Ferguson that her dispute was with TCA and that Cricket Australia did not consider it appropriate to intervene. A number of further emails were exchanged between Cricket Australia and Ms Ferguson through to 7 January 2019, including a further email from Cricket Australia of 5 January 2019 again advising Ms Ferguson that it would be best for her to discuss her issues directly with TCA. The evidence does not suggest that there was engagement of any substance between Ms Ferguson and Cricket Australia and in any event all of the communications from Cricket Australia ended within a few days of the 60 day period provided for by s 46PO(2).

28    At best, and taking the view most favourable to Ms Ferguson, her attempts at resolution made through her communications with Cricket Australia may explain about a week or two of the 151 week delay in question. That evidence does not materially assist Ms Ferguson. Nor does her uninformative evidence that she contacted Cricket Australia again on 15 September 2020 and received no response or her unparticularised and again uninformative evidence that a letter was sent by her solicitors to TCA on 23 February 2021, which also received no response.

29    Fourth, aside from her attempts to resolve her claims, Ms Ferguson deposed that “any further delay can be attributed to [her] mental health circumstances”. She said that since her employment with TCA, her mental and physical health as well as her economic stability had rapidly deteriorated and that for those reasons she had not been able to lodge an application with this Court “as a result of [her] poor mental health in large part due to [her] medical issues mostly consisting of [private information redacted]”. She went on to say that “for [her] own mental health [she was] trying to avoid revisiting the traumatic experiences with [TCA]”.

30    Ms Ferguson then referred to what she described as the “psychological and deteriorating effects” from her employment with the “Audio Clinic” between 2 January 2018 and sometime in 2019, in which she claims she experienced bullying and verbal harassment from three colleagues. She also referred to criminal proceedings brought against her in which she has been charged with dishonestly acquiring a financial advantage and stealing from TCA, in relation to which she said that there had been “a number of adjournments since March 2021” due to her ongoing medical and psychological issues.

31    Those two matters (and perhaps all of the matters upon which she relied) were said by Ms Ferguson to “have made it extremely difficult for [her] to confront everyday life, let alone think about confronting these issues in Court proceedings and having to re-live matters that happened to [her] at [TCA] as outlined in the Federal Court Application”.

32    There was no evidence given to substantiate, as a reason for the delay, the passing reference made by Ms Ferguson to her physical health or her economic stability.

33    There are two aspects of Ms Ferguson’s reliance upon her mental health which need to be separately acknowledged although they can be dealt with in tandem. The first aspect is that her asserted mental health conditions disabled or incapacitated her from pursuing her substantive application before 26 November 2021 when she sought to commence a proceeding in this Court.

34    The second aspect of Ms Ferguson’s reliance upon her asserted mental health conditions as a reason for the delay, is her asserted fear that if she pursued an application in this Court she would be re-traumatised because a court proceeding would cause her to “re-live’’ the events at TCA which had brought about her initial trauma.

35    If those claims had been made out on the evidence and made out in relation to all or most of the period of delay in question I would likely have concluded that a firm basis or reason for explaining the delay had been given. That would be so including because the consequence upon its victim of arguably unlawful conduct, should not be used to advantage the position of the alleged perpetrator. The interests of justice would not be well served if it were otherwise.

36    However and despite the fact that Ms Ferguson is legally represented, Ms Ferguson’s difficulty in making good those reasons is the inadequacy of her proof. Given that the very lengthy delay involved was a consideration that must have been recognised as weighing very heavily against her application for time to be extended, it is surprising that the evidentiary efforts made by her to establish what was potentially her only or at least her best point in explaining her very lengthy delay, was approached as casually as it was. Alternatively, it may be that the evidence that Ms Ferguson required to make good her reliance upon her asserted poor mental health and related fears, was simply not available.

37    Ms Ferguson called no medical practitioners to give evidence. Nor did she seek to tender any report of a medical practitioner. She did not seek to prove her asserted mental health conditions, her claimed initial traumatisation or the likelihood of a court proceeding re-traumatising her, through any medical evidence of that kind. That was despite the fact that her evidence referred to her attending upon and receiving treatment from some six medical practitioners and that both her own evidence and submissions made on her behalf referred to the existence of reports prepared by medical practitioners whom she had consulted.

38    Ms Ferguson merely sought to recount what she had told medical practitioners or what they had told her. Relevantly and broadly stated, she deposed that:

(i)    because of the sexual harassment and discrimination she had endured at TCA she consulted a Dr [JR] in 2018 on two occasions (following a consultation with Dr [JR] regarding a worker’s compensation claim). She stated that on both occasions she was very stressed and upset due to the circumstances surrounding her prior employment with TCA. She asserted that Dr [JR] had made a note of her stress being related to her employment with TCA. She stated that Dr [JR] prescribed various [private information redacted] for her. She said that she consulted Dr [JR] again later in 2018 and again advised the doctor that she was still very [private information redacted] and still not working;

(ii)    she consulted a Dr [MJ] on 15 February 2019 who referred her to Dr [GP] for psychological assistance. She saw Dr [MJ] on three further occasions and said that Dr [MJ’s] opinion “[was] that [she] struggle[s] with [provide information]”;

(iii)    from 17 September 2018 to 6 May 2019 Ms Ferguson sought medical advice from Dr [GP] as to the struggles she was encountering as a result of the discrimination and sexual harassment that she was subjected to at TCA. Ms Ferguson stated that Dr [GP] confirmed that she presented with a range of symptoms including:

•    [private information redacted];

•    [private information redacted];

•    [private information redacted];

•    [private information redacted];

•    [private information redacted];

•    [private information redacted];

•    [private information redacted];

•    [private information redacted]; and

•    [private information redacted].

(iv)    on 13 March 2021 Ms Ferguson started consulting with a Dr [BG] who she said placed her on a mental health plan to assist her with “[private information redacted] associated with [her] employment with [TCA]”. She asserted that Dr [BG] “confirm[ed] that [she had] symptoms of [private information redacted]”;

(v)    from 2021 until the date of her affidavit (2 March 2022) Ms Ferguson continued to consult with Dr [BG] as well as another doctor of the same clinic. She asserted that as recently as February 2022 “Dr [BG] noted that [she was] encountering further [private information redacted] and prescribed [Ms Ferguson] with multiple [private information redacted] to assist with [her] mental health issues”; and

(vi)    she has been consulting with a Dr [BN] since 9 December 2021. She said that “Dr [BN] deemed that [Ms Ferguson] presented with [private information redacted] associated with [her] employment with [TCA]”.

39    Insofar as Ms Ferguson gave evidence of an opinion held by one or other of her medical practitioners, TCA objected to the admissibility of that evidence on the basis of the opinion rule in s 76 of the Evidence Act 1995 (Cth). Section 76(1) provides that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.

40    The opinion rule is not confined to the evidence of an opinion given by a witness in court and applies to any evidence of an opinion, including out-of-court hearsay representations of an opinion: see Odgers S, Uniform Evidence Law (17th ed, Thomson Reuters, 2022) at [76.120] citing Lithgow City Council v Jackson (2011) 244 CLR 352 at [19] (French CJ, Heydon and Bell JJ).

41    Ms Ferguson sought to counter the objection made by TCA in a number of ways. First, she contended that the exception to the opinion rule in s 78 of the Evidence Act was applicable. However that submission is misconceived. Section 78 deals with lay opinions and only applies to “evidence of an opinion expressed by a person” where the opinion is based on what “the person, heard, or otherwise perceived about a matter”. The evidence relied upon by Ms Ferguson is not her own lay opinion. She relies upon opinions expressed by others to which s 78 is not applicable.

42    Second, Ms Ferguson sought to rely on the exception to the opinion rule in s 79 of the Evidence Act relating to opinions based on specialised knowledge. However, this exception to the opinion rule is not applicable. Even if I were to accept that Ms Ferguson’s affidavit accurately records the observations she says were communicated to her and infer that the medical practitioners in question each have specialised knowledge of the subject matter of those observations, the evidence of those communications in Ms Ferguson’s affidavit demonstrate little more than unsubstantiated assertions lacking any stated basis. The assumptions upon which those observations or opinions were formed is not given. I do not know whether those assertions are passing observations or studied opinions. It would be wrong in that circumstance to simply assume that the observations of the medical practitioners, said by Ms Ferguson to have been communicated to her, are opinions “wholly or substantially based” on the specialised knowledge of the medical practitioner who gave the opinion as s79 requires. That is so because that has not been shown to be the case by the evidence before me in circumstances where Ms Ferguson bore the onus of satisfying me that the exception in s 79 was applicable. It is quite possible that, for instance, the observations of one or other of the practitioners in question has strayed beyond that person’s specialised knowledge. For example, in relation to an opinion adduced from a psychologist, Gleeson CJ at [41] of HG v The Queen (1999) 197 CLR 414 observed that, based on a reading of a psychologist’s report, the opinion given was the product of “a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise of a psychologist.”

43    That may well be the case here. It was for Ms Ferguson to demonstrate that it was not. The position may have been different if considered reports of the medical practitioners in question had been tendered, even if only as exhibits to Ms Ferguson’s affidavit: see Terranora Group Management Pty Ltd v Terranora Lakes Country Club Ltd (in liq) (unreported, NSWSC, Santow J, 1 December 1997).

44    Third, Ms Ferguson also contended that if the opinion evidence she relied upon is to be regarded as hearsay, it is admissible by reason of s 75 of the Evidence Act. That provision provides that in an interlocutory proceeding, the hearsay rule does not apply to evidence if the party who adduces it also adduces evidence of its source. The fact that this proceeding is an interlocutory proceeding is not in contest, however, the exception to the hearsay rule created by s 75 is not an exception to the opinion rule in s 76: see Odgers (2022) at [75.150] citing Terranora Group Management.

45    The evidence Ms Ferguson seeks to rely upon is not admissible as evidence of the asserted opinions in question. That evidence may, however, be admitted and relied upon as evidence of what Ms Ferguson was told by her medical practitioners for the purpose of supporting her evidence as to her subjective understanding of the state of her mental health. It is not clear to me the extent to which Ms Ferguson sought to rely on the evidence for that purpose. I can see the relevance of that evidence to Ms Ferguson’s assertion that she feared being re-traumatised by the prosecution of her legal case. I will therefore admit the evidence, but pursuant to s 136 of the Evidence Act limit its use to that purpose. That, however, does not much advance Ms Ferguson’s position. I would, in any event, have accepted her evidence that a reason for her delay was her subjective fear of being re-traumatised. Although leave to cross-examine Ms Ferguson about the reasons for her delay was given to TCA, she was not cross-examined on the evidence she gave on this issue. There is no basis to regard her expressed fear as other than being genuinely held.

46    I will return to further consider that aspect of her explanation for the delay based on her mental health. But to conclude as to the other aspect – Ms Ferguson’s incapacity to prosecute her litigation by reason of her mental health – for the reasons just explained, there is no admissible evidence of Ms Ferguson’s mental health conditions to support that claimed incapacity. Even if I had admitted the asserted opinion evidence Ms Ferguson sought to rely upon for the purpose of proving her state of mental health, in the circumstances at hand, that evidence would have fallen short of persuading me that Ms Ferguson’s mental health incapacitated her from prosecuting her legal claim.

47    Other evidence demonstrates that at least for most of the nearly three year period in question, Ms Ferguson has had the capacity to function, although it may well have been the case that she did so with great difficulty.

48    Ms Ferguson’s communications with Cricket Australia are forthright and assertive. They are not suggestive of a person who lacked a capacity to prosecute her interests including the very interest raised by Ms Ferguson’s proposed proceeding.

49    I accept Mr Ben Rickman’s evidence that from August 2019 to August 2021, Ms Ferguson managed a hotel in Bendigo, Victoria. Mr Rickman deposed that Ms Ferguson managed up to seven employees and would often work 12 hour days and regularly for seven days straight. Although Ms Ferguson contested some of Mr Rickman’s evidence, her evidence in cross-examination nevertheless demonstrated that from at least September 2019 to August 2021, Ms Ferguson managed the hotel along with Mr Rickman. Ms Ferguson accepted that during this time she managed the staff but stated that they would “turn up” and that no substantial “management” was required. Counsel for the TCA put it to Ms Ferguson that she was working “80-plus hours a week” and by August 2021 was in effect running the hotel. Ms Ferguson refuted these contentions and stated that she resided at the hotel whilst she managed it. She accepted that whilst Mr Rickman was in Melbourne, she would set up new staff with her point of sale transaction code in order for them to undertake training and complete sales transactions using this code. Ms Ferguson also deposed in her affidavit that at least from late 2019 to March 2020, her role at the hotel involved working full time as a manager and “front of house” staff member.

50    I do not assume that a capacity to work or even a capacity to manage a business necessarily demonstrates a capacity to prosecute a legal proceeding. However, assuming that her mental health conditions were those described by the medical opinions she sought to rely upon, Ms Ferguson’s proven capacity to work and manage a business, call for an explanation as to why she was incapable of prosecuting a legal proceeding. No such explanation was given. Not by Ms Ferguson and not by any medical opinion. In that respect, even if I had permitted reliance upon them, the medical opinions fell short. That evidence was far too general. It failed to address any nexus between the mental health conditions said to be suffered by Ms Ferguson and her incapacity to function, and in particular, her asserted incapacity to prosecute a legal proceeding.

51    In the end, Ms Ferguson is left with little more to explain her failure to make her application for nearly three years, than her subjective fear of re-traumatisation. I do not seek to diminish such a fear. I readily accept that a fear of re-traumatisation based upon a trauma caused by sexual harassment is well capable of providing a legitimate reason for a person not prosecuting a legal proceeding in which that harassment may be relived. However, not every genuinely held fear can provide a legitimate reason for a delay of the kind here in question. Whether or not that fear is reasonable must also be relevant to its legitimacy as a reason for justifying the delay. In that regard, reasonableness must be assessed objectively, the question being – is it reasonable to suppose that Ms Ferguson was likely to be re-traumatised by prosecuting her litigation?

52    In that respect, Ms Ferguson’s evidentiary case also fell short. First, I have no evidence as to the nature or extent of any initial trauma experienced by Ms Ferguson so as to enable an assessment of the likelihood of re-traumatisation, including the nature and extent thereof. Second, any such assessment would have been best made by reference to expert evidence. Ms Ferguson has provided no medical evidence supporting the likelihood that she would have been re-traumatised by bringing her application either at all or in a timely fashion. Nor was there any evidence put or any submission made which explained why the fear of re-traumatisation precluded Ms Ferguson from litigating for some two years and ten months, but did not or has not precluded the prosecution of her litigation since that time. What changed circumstances ameliorated or disposed of Ms Ferguson’s fear of being re-traumatised? When did those circumstances change? The answers to those questions given on a proper evidentiary basis, would likely have been informative of the reasonableness of Ms Ferguson’s fear including as to whether re-traumatisation was reasonably feared over the entirety of the very lengthy delay in question.

53    For those reasons, Ms Ferguson has not persuaded me that there is an acceptable explanation for the very lengthy delay in making her application.

The merits of the proposed application

54    As Kiefel CJ, Gageler, Keane and Gleeson JJ said in Tu’uta Katoa at [17] “the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending, of course, on other relevant factors”. That was suggested to be so including because “an extension of time will confer upon the applicant not only the right to a determination of their substantive application on the merits but also a right of appeal from that judgment, if adverse to the applicant”.

55    The importance to the applicant of the opportunity to pursue the substantive application also has a bearing upon the extent to which the interests of the administration of justice favour the grant of an extension: see AON15 v Minister for Immigration and Border Protection [2018] FCA 373 at [13] (Bromberg J); James at [38]. So too does the public importance of the substantive application: see James at [38].

56    Each of those considerations and particularly the merit of the substantive application will have a great deal of work to do where, as is here the case, the extent of the delay is very substantial, there is prejudice to the respondent and to third parties and the delay is unexplained. Thus, “if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even ‘exceptional’”: Tu’uta Katoa at [18].

57    Ms Ferguson has deposed that while she was an employee of TCA a former employee of TCA made numerous inappropriate sexual comments to her and has provided examples of those comments. She further deposed that a second former employee of TCA made numerous remarks of a sexual nature to her in the workplace and over text message. She has also deposed that that employee sent her a picture of his penis. She has deposed that a third former employee of TCA also sent her an unwarranted and unwelcomed photograph of his penis. She also deposed that a fourth former employee of TCA made numerous inappropriate sexual comments to her. She claims she raised various complaints with TCA about the conduct she experienced.

58    TCA have denied the allegations of sexual harassment. Affidavit material filed in support of TCA’s opposition to Ms Ferguson’s application for an extension of time includes affidavits from numerous employees or former employees of TCA denying that any complaint about sexual harassment was made by Ms Ferguson during her employment with TCA. Additionally, three of the former employees whom Ms Ferguson alleges were the perpetrators of the sexual harassment she experienced have given affidavit evidence denying the allegations made against them.

59    Broadly stated, the three former employees have variously denied making the particular comments which Ms Ferguson has alleged were made; have deposed that the communications alleged by Ms Ferguson are not complete and accurate; have asserted that Ms Ferguson was a willing and active participant in the communications in question; or have given evidence designed to establish that the comments or the sending of a photograph attributed to that person was not unwelcome conduct. One of the former employees has deposed that Ms Ferguson initiated and encouraged the sending of sexually explicit photographs.

60    As will be apparent from that very broad outline of the evidence which can be expected at any trial, the events relied upon by Ms Ferguson are strongly contested. There is likely to be documentary evidence which may be compelling. However, whether or not most if not all of the allegations made by Ms Ferguson are established, will likely turn on oral testimony and whose evidence the Court accepts to be reliable and truthful. It is relevant in that regard to appreciate, given the nature of much of TCA’s proposed defence, that under the statutory definition of “sexual harassment” provided by s 28A of the SD Act, conduct of a sexual nature must be both “unwelcome” and made “in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated”.

61    It is likely therefore that at any trial, the context in which the specific communications impugned by Ms Ferguson to have occurred, will itself be the subject of significant factual contest the determination of which will also largely turn upon who is believed.

62    A trial of Ms Ferguson’s claims will likely involve the Court determining a multitude of disputed facts largely by reference to the Court’s assessment of Ms Ferguson’s credit and that of the former employees whose conduct she has impugned. The evidence before me on this extension of time application is not comprehensive with respect to the impugned conduct and the limited evidence I have has not been tested. In this context, it is not really possible to assess the strength of Ms Ferguson’s case beyond saying that her case is arguable, largely because the prospect that she will be believed cannot be excluded, and if she is believed she will likely succeed at least in relation to some of the claims she has made.

63    For those reasons I accept that Ms Ferguson has some prospect of success if she were permitted to pursue her application. However, I cannot say that her case is strong. I do not consider the proposed proceeding raises any matter of public importance but I accept that the opportunity Ms Ferguson seeks to pursue her application is, objectively, a matter of importance given the seriousness of the allegations she seeks to raise.

conclusion

64    Ms Ferguson has delayed for 2 years and 10 months in bringing her application alleging sexual harassment. The lengthy delay of 34 months equates to about seventeen times the 60 day period in which it would ordinarily have been required that Ms Ferguson commence her proceeding. While such a lengthy delay is not necessarily a disqualifying factor, it stands as a very substantial impediment to the permission to pursue her claim which Ms Ferguson now seeks. That is particularly so given that her delay has likely caused significant prejudice to TCA and to others and that the delay has not been justified. All of that tends very strongly against granting Ms Ferguson the extension of time she seeks to make her application.

65    The serious nature of the allegations Ms Ferguson seeks to pursue together with the fact that, on the limited assessment able to be made at this time, her prospective application has some prospect of success, tend in favour of granting Ms Ferguson an extension of time but are not, in the circumstances, compelling.

66    I have reached a clear view that in balancing those competing considerations, the interests of the administration of justice do not favour the grant of an extension of time.

67    Accordingly, Ms Ferguson’s application will be dismissed.

68    I will give the parties a short opportunity to confer as to whether any order as to costs should be made. If no agreement on the matter is reached, within 7 days TCA should file and serve a short submission (no more than two pages) on the issue of costs. Within 7 days thereof, Ms Ferguson should file and serve a short submission (no more than two pages) in response. I will then deal with any application for costs on the papers. In the interim I will make an order that costs be reserved.

Associate:

Dated:    27 October 2022