Federal Court of Australia

Chen v Birbilis [2023] FCA 1644

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time to seek leave to appeal be dismissed.

2.    The applicant pay the respondents’ costs of the application.

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

REASONS FOR JUDGMENT

MCEVOY J:

1    Before the court is an application for an extension of time for leave to appeal from orders made by North J in Chen v Birbilis [2016] FCA 661, which was delivered on 3 June 2016 (primary judgment). His Honour summarily dismissed the applicant’s application seeking reinstatement of her employment at Monash University, having concluded that the applicant had no reasonable prospect of successfully prosecuting the proceeding within the terms of s 31A of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth).

2    Almost seven years later the applicant wishes to appeal in relation to that part of the primary judgment which related to her claims under the Sex Discrimination Act 1984 (Cth). Obviously enough she requires an extension of time to make an application for leave to appeal.

3    Consistently with orders made by consent on 9 May 2023, the matter has been determined on the papers without oral hearing pursuant to s 20A of the Act and r 35.18 of the Rules.

4    The respondents oppose the grant of an extension of time, and if an extension of time is to be granted they oppose the grant of leave to appeal, on the bases that:

(a)    the applicant’s delay is very substantial and her explanation for delay is inadequate;

(b)    the primary judgment is not attended by sufficient doubt to warrant its reconsideration on appeal; and

(c)    refusal of the applicant’s application would not work any substantial injustice.

5    For the reasons that follow I have concluded that the applicant should not be granted an extension of time for leave to appeal and her application should be dismissed.

Background

6    It is important to have regard to the following matters.

7    From 2013 to 2016, the applicant instituted a number of proceedings in this court against Monash University and members of its staff: as well as the primary judgment, see Chen v Monash University [2015] FCA 130 (Tracey J), Chen v Monash University [2016] FCAFC 66, (2016) 244 FCR 424 (Barker, Davies and Markovic JJ), and Chen v Monash University (No 2) [2015] FCA 552 (Tracey J). The applicant was unsuccessful in each proceeding.

8    The primary judgment, which is the subject of the present application, concerned the applicant’s dismissal from her employment on conduct grounds. That dismissal occurred on 25 June 2014. On 8 January 2016 the applicant filed an originating application seeking reinstatement of her employment: primary judgment at [2].

9    That application was met by the respondents to it with an application for summary judgment. In support of their application for summary judgment the respondents argued that:

(a)    the allegations in the applicant’s complaint terminated by the Australian Human Rights Commission on 10 November 2015 were allegations of victimisation in contravention of s 94(2) of the Sex Discrimination Act, and the court did not have jurisdiction to hear those claims; and

(b)    the second respondent, Ms Cornish, was not a respondent to the terminated complaint, and the court therefore did not have jurisdiction to determine any complaint against her.

10    Having regard to binding authority North J accepted that this court did not have jurisdiction to hear the allegations of victimisation in contravention of s 94(2) of the Sex Discrimination Act: primary judgment at [8]-[11].

Materials before the Court on this application

11    The applicant has filed the following materials in connection with the present application:

(a)    an application for extension of time for leave to appeal filed on 19 March 2023 and served on 2 April 2023;

(b)    a proposed notice of appeal received by the court on 19 March 2023;

(c)    a 12 paragraph affidavit affirmed by the applicant on 6 April 2022 with seven exhibits (comprising 62 pages in total), which was accepted for filing on 23 March 2023 and served on the respondents on 2 April 2023;

(d)    a bundle of affidavits filed by the applicant on 22 May 2023 (comprising 1,991 pages in total), being:

(i)    a 15 paragraph affidavit affirmed by the applicant on 14 March 2022 with five exhibits;

(ii)    a 9 paragraph affidavit affirmed by the applicant on 14 March 2022 with six exhibits;

(iii)    a 22 paragraph affidavit affirmed by the applicant on 28 March 2022 with 11 exhibits;

(iv)    a 26-paragraph affidavit affirmed by the applicant on 6 April 2022 with multiple exhibits, which affidavit was filed in an application for judicial review commenced by the applicant in the High Court’s original jurisdiction on 26 April 2022 (proceeding number M24/2022);

(e)    a 16 paragraph affidavit affirmed by the applicant on 6 April 2022 with 14 exhibits (comprising 256 pages in total), which was accepted for filing on 22 May 2023 and served on the respondents on 25 May 2023 (this affidavit is similar in part to the applicant’s first affidavit, with some additions);

(f)    two sets of written submissions which were accepted for filing on 31 May 2023; and

(g)    written submissions in reply dated 11 July 2023.

12    Timetabling orders were made by consent on 9 May 2023. They provided that the applicant was to file and serve any affidavit evidence in reply by 30 May 2023. The applicant nevertheless filed:

(a)    a 2 page affidavit on 6 July 2023 affirmed by the applicant on 28 June 2023 with five exhibits; and

(b)    a 1 page affidavit on 7 August 2023 affirmed by the applicant on 7 August 2023 with two exhibits which had previously been provided as an annexure to the applicant’s reply submissions on 11 July 2023 (applicant’s seventh affidavit).

13    The applicant’s seventh affidavit was filed after the date of the last submissions (her reply submissions dated 11 July 2023), however the annexures to the applicant’s seventh affidavit appear to be largely similar to material that was attached to her reply submissions filed on 11 July 2023.

14    The respondents rely upon:

(a)    an affidavit of Kym Fraser sworn 11 May 2023 (Fraser affidavit); and

(b)    written submissions dated 21 June 2023.

The applicant’s Grounds

Original grounds for seeking an extension of time for leave to appeal

15    The applicant’s application for an extension of time outlines the following grounds on the basis of which she says she should have an extension of time to make an application for leave to appeal:

Ground 1 Reason of Delay. The plain ineffectiveness of justice system manifested by the systemic error of law on civil victimisation had brought about the delay.

Ground 2 Actions of the Parties. The respondents and the acquiescence of the State over the error of law had contributed to that error of law, to the plain ineffectiveness of justice system, and thus to the delay. Since June 2016 the Applicant has been petitioning to the United Nations under the grounds of plain ineffectiveness of justice system.

Ground 3 Merits of the Proposed Appeal. The Sex Discrimination Amendment Bill 2021 and Revised Explanatory Memorandum of the Amendment Bill have provided legal foundations to correct the error of law made in this case.

Ground 4 Justice and Finality. There is a manifest injustice in this case where the doctrines of finality must not be applied.

Ground 5 No prejudice to the Respondents.

Further grounds in the applicant’s submissions

16    In her written submissions filed on 31 May 2023 the applicant outlined the following further grounds on the basis of which she sought an extension of time:

Ground A Having regard to all relevant circumstances, exceptional circumstances exist in the application for an extension of time.

Ground B The present proceeding is neither vexatious nor frivolous/abuse of process.

Ground C The decisions by the High Court of Australia (the HCA) (Exhibits KAF-4 and - 6) are irrelevant, not binding and erroneous.

Proposed grounds in draft notice of appeal

17    In a proposed notice of appeal received by the Court on 19 March 2023, the applicant outlines the following proposed grounds of appeal:

1.     The Court erred by the error of law that the Federal Court of Australian (FCA) had no jurisdiction to deal with a victimisation claim.

2.     The Court erred by failing to take into account of a mandatory authority Dye v Commonwealth Securities Limited [2010] FCAFC 118.

3.     The Court erred by treating Chen differently, and has violated Article 26 of the International Covenant of Civil Political Right (ICCPR).

4.     The Court erred by inappropriate exercise of the discretion of summary judgement.

5.     The respondent Edwina Cornish had no authority to terminate the academic employment of Chen’s position. That power lay with the Vice Chancellor of the University. In the eye of law, Chen is still a tenured faculty of Monash University.

The statutory regime and relevant principles

18    Section 24(1A) of the Act provides that an appeal shall not be brought from an interlocutory judgment unless the Court or a Judge gives leave to appeal. Section 24(1D)(b) of the Act provides that a decision granting summary judgment under s 31A is taken to be an interlocutory judgment for the purposes of s 24(1A).

19    Rule 35.13 of the Rules provides that an application for leave to appeal must be filed within 14 days after the day on which the judgment was pronounced or the order made or on such other date as fixed.

20    Rule 35.14 provides for the making of an application for an extension of time in which to seek leave to appeal:

(1)     A person who wants to apply for an extension of time to seek leave to appeal must file an application, in accordance with Form 118.

(2)     The application may be made during or after the period mentioned in rule 35.13.

(3)     The application must be accompanied by the following:

(a)    the judgment or order from which leave to appeal is sought;

(b)     the reasons for the judgment or order, if published;

(c)     an affidavit stating:

(i)     briefly but specifically, the facts on which the application relies; and

(ii)     why the application for leave to appeal was not filed within time; and

(d)     a draft notice of appeal that complies with rules 36.01(1) and (2);

(e)     a statement by the applicant of whether the applicant wants to have the application considered without oral argument.

21    An application for an extension of time in which to seek leave to appeal challenges a respondent’s vested right to retain the judgment below and puts that right at risk: BNT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1475 at [23] (Rares J) citing Jackamarra v Krakouer (1998) 195 CLR 516 at 519-520 [3]-[4] (Brennan CJ and McHugh J) and at 539-543 [66] (Kirby J).

22    An extension of time to seek leave to appeal may be granted under r 35.14 of the Rules in accordance with accepted principles, including s 37M of the Act: SZVCP v Minister for Immigration and Border Protection (2016) 238 FCR 15 at 19-20 [14] (Kenny, Robertson and Griffiths JJ) citing Gallo v Dawson (1990) 64 ALJR 458 at 458-459 (McHugh J) and Mentink v Minister for Home Affairs [2013] FCAFC 113 at [32]-[38] (Griffiths J). An applicant for an extension of time pursuant to r 35.14 bears the onus of persuading the court that, in all the circumstances of the case, an extension should be granted: Khondoker v Minister for Immigration and Citizenship [2012] FCA 654 at [56] (Foster J).

23    A grant of an extension of time is not automatic, but may be granted where the Court is persuaded that the extension is necessary to do justice between the parties. In Gallo v Dawson at 459 McHugh J made the following observations in relation to an application for an extension of time to appeal:

The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194–5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263–4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935:

“The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.”

24    While these observations related to an application for an extension of time to appeal, they remain apt in the context of an application for an extension of time to seek leave to appeal: Khondoker at [58].

25    As has been mentioned, the primary judgment is an interlocutory judgment for the purpose of s 24(1A) of the Act: s 24(1D)(b) of the Act. The test for whether to grant an extension of time for leave to appeal was summarised in the following terms by Jagot J in Wang v Botany View Hotel [2014] FCA 730 at [13]:

The question whether to grant an extension of time pursuant to r 35.14 of the FCA Rules involves a consideration of the likelihood of leave to appeal being granted and whether there is a satisfactory explanation for the delay (Deighton v Telstra Corp [1997] FCA 1568; Croker v Philips Electronics Australia Ltd [2000] FCA 1731). As to prospects of successfully obtaining leave to appeal, the test is essentially the same as for granting of leave itself: (i) whether the decision from which the applicant seeks to appeal is attended with sufficient doubt to warrant its being reconsidered by an appellate court, and (ii) whether substantial injustice would result if leave were to be refused supposing the decision to be wrong (Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398–400; Sharman License Holdings Ltd v Universal Music Aust Pty Ltd [2005] FCA 802).

26    The Court is to consider the proposed appeal at a “reasonably impressionistic level” and assess whether the proposed appeal is “sufficiently arguable” or has “reasonable prospects of success”: MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at 597-598 [62]-[63] (Mortimer J). The Court does not “descend into a complete or full determination of the issues”: AZAFF v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 176 at [58] (Collier, Farrell and Abraham JJ); GOK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 169 at [32] (Collier, Rangiah and Derrington JJ). A failure to explain the delay adequately will also be relevant to the proper exercise of the discretion: CXH16 v Minister for Immigration and Border Protection [2018] FCA 1498 (Flick J).

The parties’ positions

The applicant’s submissions

27    The applicant submits that exceptional circumstances exist in the present case. She refers specifically to the following:

(a)    the reasons for the delay;

(b)    the actions by the parties that contributed to the delay;

(c)    the merits of the application;

(d)    justice between the parties; and

(e)    the absence of prejudice to the defendants.

28    The applicant appears to submit that the primary judge erred in failing to consider certain authorities that she maintains are relevant on the question of the court’s jurisdiction to determine victimisation claims. The applicant says that the primary judge erred by relying on Chen v Monash University [2015] FCA 130 and Chen v Monash University [2016] FCAFC 66.

29    The applicant also contends that given the purported error of law and circumstances that she alleges have occurred, including death threats, “bizarrely inappropriate nation-wide media propaganda” and three interim intervention orders, “any reasonable person would anticipate that the justice system was plainly ineffective for [the applicant] to seek further appeals” and consequently that the applicant has “exhausted domestic remedies”. The applicant notes in this connection that she has petitioned the Office of the High Commissioner for Human Rights and the United Nations.

30    The applicant maintains that amendments to the Sex Discrimination Act passed in September 2021 “explicitly clarifies that victimising conduct can form the basis of a civil action” under the Sex Discrimination Act. It appears to be her position that this supports her argument that the primary judge made an error of law. The applicant submits that it is the “manifest error of law” that brought about the delay.

31    It is also the applicant’s position that the proposed grounds of appeal have merit in light of s 47A of the Sex Discrimination Act which was added in 2021 by the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Cth). The applicant submits that this provision clarifies that victimisation can form the basis of a civil action and that it has retrospective operation. The applicant contends that this provision demonstrates that the primary judge’s decision is “clearly erroneous”. The applicant refers in this regard to Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118 at [71] (Marshall, Rares and Flick JJ) and Hanson v Burston [2022] FCA 1234 at [8(a)] (Bromwich J).

32    The applicant also submits that the primary judge inappropriately exercised his discretion to summarily dismiss the proceeding, referring to Leach v Burston [2022] FCA 87 at [218] (Halley J).

33    The applicant maintains that the primary judgment is “clearly erroneous” and asserts that she has “the right to seek redressing [sic] the erroneous decision under new s 47A” of the Sex Discrimination Act.

34    In addition, the applicant makes certain allegations about “systemic racial bias” in her case and in relation to acts of perceived “retaliation” against her by Monash University. She refers to the suspension and termination of her employment, a costs order made against her in Chen v Monash University [2015] FCA 130 by Tracey J, and the impact of the termination on her career and life more generally. She submits that the doctrine of finality should not apply here as it “would constitute a manifest injustice”. The applicant also submits that her case should be viewed more broadly as a “public problem”.

35    On the subject of prejudice, the applicant submits that the respondents will not suffer prejudice if the extension is granted and says that there are exceptional circumstances in this case to warrant time being extended to make an application for leave to appeal.

36    The applicant also makes a number of submissions as to why her application is neither vexatious nor frivolous, and that it is not an abuse of process. She contends that the application is not brought with the intention of annoying or embarrassing a person, that it is instituted on reasonable grounds, that it is not for a collateral purpose, and that it is not so obviously untenable or manifestly groundless as to be utterly hopeless. She also contends that the long delay supports the argument that she has not been habitually and persistently instituting legal proceedings.

37    The applicant submits finally that the decisions of the High Court in proceedings brought by her are “irrelevant, not binding and erroneous”. She submits that the judgment of Keane J in M24 of 2022, Qizhi Chen v a Judge of the Federal Court of Australia & Ors (High Court of Australia, 13 September 2022) and the judgment of Edelman and Gleeson JJ in Chen v A Judge of the Federal Court of Australia & Ors [2022] HCASL 212 are irrelevant, and that the judgment of Keane J is not binding and “erroneous and thus not persuasive”. The applicant also makes various submissions in relation to the conduct of the High Court proceeding, the detail of which it is unnecessary to set out.

38    In her written submissions in reply, the applicant submits that leave to appeal should be granted because:

(a)    The primary reasons for delay of this proceeding were the systematic misrepresentation of law and the High Court proceedings. The applicant has never been inactive, but rather relentlessly seeking avenues to appeal, nationally or internationally.

(b)     The decision of [the primary judge], as well as those of [another judge of this Court] and the full court [sic], has been tainted by vitiating errors, including (1) the misrepresented law, (2) not taking into account mandatory relevant considerations but taking into account inappropriate considerations, (3) treating the applicant differently, and (4) procedural unfairness: making no effort to explain the Court’s process and procedurals to the unrepresented litigant and unreasonable exercises of power.

(c)     The applicant has suffered substantial injustice as a result of racial discrimination.

39    The applicant reiterates that the purported “error of law” was a “decisive reason” for the delay of this proceeding, “which otherwise would have been an abuse of [process] under the circumstances of 2016-2021”. She submits that following the amendments to the Sex Discrimination Act on 11 September 2021 the OHCHR advised her on 24 September 2021 that the complaint did not meet preliminary requirements which the applicant contends indicates that she should seek domestic remedies. The applicant submits that she has undertaken various activities in this connection since that time, including submitting various complaints to the Chief Justice of this court and making applications for judicial review in the High Court. The applicant contends that the further delay of 18 months from December 2022 to March 2023 was due to the High Court proceeding and “another bout of necessary UN-petition”.

40    The applicant also contends that the respondents contributed to the alleged “misrepresentation of law” and thus the delay. She reiterates that each of her proposed grounds have merit: that is that there are clear vitiating errors in the primary judge’s decision, there is substantial injustice as a result of racial discrimination, three has been fraudulent conduct on the part of the respondent, and for these reasons there should be an extension of time for her to seek leave to appeal.

The respondents’ submissions

41    The respondents submit that care should be taken before interfering with the primary judge’s exercise of discretion because a discretionary decision is one in which there is no single right answer and a range of possible decisions are open to the judge called on to make the decision: Durham v Durham (2011) 80 NSWLR 335 at 350 [72] (Tobias, Campbell and Young JJA). The respondents emphasise that in considering an application for an extension of time to seek leave to appeal, the Court is to take an “impressionistic approach” to the question of merit and consider the failure to explain delay adequately as part of the proper exercise of the discretion.

42    On the subject of delay, the respondents note that the primary judge delivered judgment on 3 June 2016 and consequently an application for leave to appeal should have been filed by 17 June 2016. The present application was lodged on 19 March 2023 and accepted for filing on 23 March 2023 – a delay of over six years and nine months. The respondents submit that this delay is very substantial.

43    The respondents contend that the applicant has failed to provide a sufficiently precise explanation for the delay in bringing the application and note that she relies on a number of affidavits affirmed in March and April 2022. It is contended that this suggests the applicant had the present proceeding in mind in 2022 but delayed a further 12 months in filing it. The respondents submit that this counts strongly against the grant of an extension of time.

44    The respondents also submit that the explanation of the applicant’s delay is unsatisfactory for the following reasons:

(a)    the primary judge’s judgment has stood undisturbed for over six years;

(b)    the allegations of sex discrimination and sexual harassment underlying the victimisation claim discussed by the primary judge were found by another judge of this court in February 2015 to be “without foundation” and to have “weighed heavily on those against whom they were directed” and that they demeaned their reputations: Chen v Monash University [2015] FCA 130 at [2]-[3] (Tracey J) (the third respondent was a party to this proceeding);

(c)    the respondents have not contributed to the applicant’s delay;

(d)    the material before the court suggests that by June 2016 the applicant had made a conscious decision not to pursue domestic remedies (including an appeal of the primary judge’s judgment), and on 27 May 2016 (the date of last submissions in the primary proceeding and a week before the judgment) the applicant submitted to the OHCHR that “domestic remedies would be plainly ineffective”;

(e)    the applicant’s status as a self-represented litigant does not explain the delay as she managed to progress other proceedings in which she was self-represented;

(f)    many of the circumstances put forward by the applicant to explain her delay pre-date the primary judge’s judgment and therefore do not explain the delay in applying for leave to appeal that judgment;

(g)    in any event, the alleged circumstances proffered by the applicant do not explain why she was unable to file an application with the court in the time between 17 June 2016 and 19 March 2023;

(h)    the applicant’s pursuit of alternative remedies in the OHCHR did not prevent her from filing an application with the Court;

(i)    the applicant’s assertions of “relentless and endless” harassment and threats since 2016 are not made out on the evidence and are not shown to relate to this case; and

(j)    the amendment to the Sex Discrimination Act on 11 September 2021 and further correspondence from the OHCHR on 24 September 2021 do not adequately explain the applicant’s additional 18 month delay from September 2021 to 19 March 2023.

45    The respondents also note that the applicant relied on the same, or substantially the same, explanation for her delay in bringing the proceeding in the High Court. In that instance Keane J described the applicant’s delay as “gross and unexplained”. His Honour held that the application for an extension of time was one that “must be refused”: M24 of 2022. In refusing leave to appeal the judgment of Keane J, Edelman and Gleeson JJ found that the decision was “plainly correct”: Chen v A Judge of the Federal Court of Australia & Ors [2022] HCASL 212 at [2] (Edelman and Gleeson JJ). The respondents contend that these decisions merely highlight the similarity of the applicant’s explanation for the delay and that the applicant relies on affidavits from the High Court proceeding in this application, which was previously found to be unsatisfactory.

46    Insofar as the merits of the application are concerned, the respondents submit that proposed ground one is not made out. It is said that the applicant’s argument is that the primary judge made an error of law in concluding that the court did not have jurisdiction to hear the applicant’s victimisation claim. The respondents contend that the applicant’s argument relies on amendments to the Sex Discrimination Act, in particular s 47A, that came into effect in September 2021 and provide that this court has jurisdiction to hear and determine civil claims of victimisation. The respondents identify that the primary judge referred to the decisions of Chen at [120]-[124] (at [10]) and Walker v State of Victoria [2012] FCAFC 38 that dealt with the Court’s jurisdiction to determine victimisation claims under the Sex Discrimination Act at that time (at [10]), and that his Honour considered these decisions “binding on him” making it plain that the claim under s 94 was not within the court’s jurisdiction.

47    The respondents submit that this approach applied the law as it stood at the time of the decision. They submit that although the new s 47A applies to acts committed before, at, or after its addition to the Sex Discrimination Act, it does not follow that North J’s approach discloses legal error: Mabo v Queensland (1988) 166 CLR 186 at 211-212; Australian Education Union v General Manager of Fair Work Australia (2012) 246 CLR 117 at 136-137 [35]. The respondents refer in this regard to s 7(2) of the Acts Interpretation Act 1901 (Cth) which provides that an “affected Act” does not affect the “previous operation of the affected Act or part, … or anything duly done or suffered under the affected Act or part” or “any right, privilege, obligation or liability acquired, accrued or incurred under the affected Act or part”. The respondents also note that s 7(2) provides that any such “investigation, legal proceeding or remedy may be instituted, continued or enforced ... as if the affected Act or part had not been repealed or amended”.

48    The respondents contend that the transitional provisions in the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Cth) which added s 47A to the Sex Discrimination Act do not suggest that the addition of s 47A has a retrospective effect on the lawfulness of the primary judge’s approach.

49    Further, the respondents submit that there is no error shown by the primary judge that could have affected the outcome in the proceeding, that is that the applicant was seeking reinstatement of her employment. The respondents maintain that there is no indication that this is now a realistic outcome, which must surely be the case.

50    The respondents contend that if ground one fails then the other grounds also fall away. Nonetheless, they make the following submissions in relation to proposed grounds two, three and four:

(a)    there was no error by the primary judge in relation to his Honour’s failure to apply Dye because Dye did not raise the issue of the court’s jurisdiction to determine contraventions of s 94 of the Sex Discrimination Act, and in any event Dye was decided before Walker and Chen such that the decision in Dye is unlikely to have had any material effect on the outcome of the proceeding before the primary judge;

(b)    proposed ground three lacks substance because:

(i)    the proceeding before the primary judge was decided on jurisdictional grounds based on two binding Full Court decisions;

(ii)    to the extent the ground alleges racial discrimination it appears to relate to this court which is a serious allegation without foundation and it is noted that a similar allegation was made against another Judge of this court before the High Court which Keane J found had “no evident basis in fact”: M24 of 2022 at [7];

(c)    proposed ground four lacks substance given the applicant does not raise any basis on which the error in the proper exercise of discretion to dismiss a proceeding can be inferred; and

(d)    proposed ground five has no prospect of success insofar as it is directed at the second respondent because by reason of s 46PO of the Australian Human Rights Commission Act 1986 (Cth), the Court did not have jurisdiction to consider any claim against that respondent brought under the Sex Discrimination Act: Grigor-Scott v Jones (2008) 168 FCR 450 at 454 [18]-[20] and 468-469 [89] (Emmett, Lander and Tracey JJ).

51    The respondents submit that they will suffer prejudice of the kind typically associated with lengthy delays in commencing proceedings, including the ability to give instructions after a considerable time, and that an extension would run counter to the public interest in finality of litigation. They contend that there is no utility in this proceeding given the relief sought was reinstatement where there is no prospect of that being ordered now because the applicant no longer resides in Australia, has made accusations against for former employer of “institutionally plotted sexual harassment, red-blooded fraud, racial discrimination, and manifest error of law”, and where the relationship of trust and confidence that must underpin a viable employment relationship is gone: Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186.

52    In any event, the respondents submit that the existence of different cases decided differently to the applicant’s case is not evidence of injustice in the requisite sense, particularly in circumstances where claims under the Sex Discrimination Act are highly fact specific. The underlying claims were rejected more than eight years ago by another judge of this Court where it was found they were “without foundation”, in circumstances where the third respondent was also a party to that proceeding. It is thus said that bringing the litigation to an end would promote the interests of justice: Re Commonwealth; Ex parte Marks (2000) 75 ALJR 470 at 474 [15].

53    Finally, the respondents submit that to the extent the applicant applies to the court to demonstrate to the OHCHR that no “domestic remedy is available”, the proceeding is brought for a collateral purpose and is thus arguably an abuse of process: UBS AG v Tyne (2018) 265 CLR 77 at 83 [1] (Kiefel CJ, Bell and Keane JJ).

Disposition

54    For the reasons submitted by the respondents, I do not consider that the applicant has provided a satisfactory explanation for the lengthy delay of over six years in bringing the present application. The lack of explanation for the delay strongly supports the dismissal of the applicant’s application for an extension of time.

55    Further, both at an impressionistic level and more substantively it does not appear that the proposed appeal is sufficiently arguable to justify a grant of an extension of time for leave to appeal or a grant of leave to appeal. The primary judge’s decision summarily to dismiss the proceeding was a discretionary one, and for a discretionary decision there is no single right answer but rather a range of possible decisions that are legitimately open: Durham at [72]. The range of possible decisions open to the primary judge are set by the requirements of the relevant principles and the weight that the primary judge gives to certain matters is a matter for that judge, not the appellate court: Durham at [72]. I do not consider that the primary judge has acted outside the permissible discretionary range in this instance. For the reasons identified by the respondents, I consider that the primary judge’s decision is not attended with sufficient doubt to warrant the grant of an extension of time to seek leave to appeal.

56    Finally, I do not consider that a substantial injustice would result for the applicant if leave is refused (even supposing the primary judgment to be wrong). Rather, it is in the interests of justice that the primary judge’s decision remains undisturbed. The respondents have a vested right to retain the judgment, and I accept the respondents’ submission that they would suffer prejudice if the applicant was granted an extension of time to appeal in circumstances where the judgment has stood for over six years. I also accept the submissions that there is no utility in granting the application where the applicant had sought reinstatement but now lives overseas, and has made numerous unfounded accusations against her former employer. I am not persuaded that an extension of time for leave to appeal is necessary to do justice between the parties.

57    The applicant’s application for an extension of time for leave to appeal will therefore be dismissed, and there will be an order that the applicant pay the respondents’ costs.

Associate:

Dated:    20 December 2023