Amponsem v Laundy

Is the primary judge's decision attended with sufficient doubt? 11 The primary judge applied the correct test in relation to the considerations relevant to the grant of an extension of time under s 46PO of the AHRC Act. At [49] of his reasons, the primary judge sets out the considerations expressed by Collier J in Ferrus v Qantas Airways Ltd (2006) 155 IR 88; [2006] FCA 812 at [19] and [20], which have commonly been accepted in this Court as the relevant considerations. Put briefly they are: (1) the explanation for delay; (2) any prejudice to the respondent; and (3) whether the applicant has an arguable case.

Ground 1 12 The respondents submit that the primary judge accepted their unchallenged evidence that they would be prejudiced by the difficulty of locating many of the 11 members of staff who attended the meeting at which the statement is alleged to have been made by Mr Poulos. Mr Poulos remains employed by the first respondent. The primary judge accepted these submissions: [22]-[25] and [58]. I accept the respondents' submission that Mr Amponsem's claim to be able to locate former staff members to partially remedy that prejudice does not reveal error by the primary judge.

Ground 2 13 This ground seeks to re-agitate Mr Amponsem's assertion that the document he posted to the Federal Circuit Court Registry (Registry) on 24 May 2012 was an application under s 46PO of the AHRC Act in appropriate form. His affidavit of 6 February 2014 annexes copies of "Customer Commitment" correspondence with Australia Post which demonstrates that an item bearing reference number 049467812092 mailed by Mr Amponsem on 24 May 2012 was delivered to the Registry on 25 May 2012. This evidence does not advance Mr Amponsem's cause. The trial judge considered evidence of: (1) a copy of the Registry's tracking diary (this Court and the Federal Circuit Court sharing a registry), (2) inspection by the respondents of a file maintained by the Federal Court in relation to fair work proceedings instituted against the first respondent by Mr Amponsem for recovery of allegedly underpaid annual leave payments; that file included the notice of termination from the AHRC dated 28 March 2012, (3) the failure to pay filing fees in May 2012, (4) a photocopy of the notice of termination from the AHRC which Mr Amponsem maintained on his personal file and (5) evidence given by Mr Amponsem in cross-examination. The primary judge concluded that the document bearing reference number 049467812092 was the notice of termination by the AHRC. He concluded that it was the document sent by Mr Amponsem by express post to the Registry on 24 May 2012 and misfiled on the fair work proceedings file of the Federal Court. He concluded that Mr Amponsem had not mailed an application in appropriate form on 24 May 2012. Mr Amponsem asserted that the document filed with the Federal Circuit Court on 16 July 2012 was a "reconstructed" version of the document sent on 24 May 2012 which was lost. The primary judge found at [80]: The explanation for delay is substantially contradicted by the evidence of the applicant alone. Mr Amponsem attempted to provide the explanation that he had to reconstruct the original application sent to the Court due to it being lost by either Australia Post or the Court's Registry, but the result of this attempt was that his explanation was, instead, totally discredited. 14 The applicant has provided no evidence or explanation which casts doubt on the finding of the primary judge.

Ground 3 15 In this ground Mr Amponsem says that he is self-represented with little knowledge of court processes and that he relied on what he was told by the Court. 16 The primary judge found, at [50]-[52] that Mr Amponsem has some experience with Court proceedings. It is not the function of the registry of either the Federal Circuit Court or of this Court to provide legal advice about the timeframes for lodging applications and applicants must bear responsibility for ensuring relevant timeframes are met. I endorse the comment of Katzmann J in SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [8]: "In the ordinary course of events a layperson would not be expected to be aware of the Court's time limits. Save perhaps for exceptional cases, ignorance of a time limit cannot therefore take the case out of the ordinary." 17 I do not find that the primary judge erred in his approach in relation to this issue.

Strength of the case to be argued 18 The primary judge gave extensive consideration to the strength of Mr Amponsem's claims and the legislative scheme to which they relate. He concluded that he was not satisfied that breaches of the relevant legislation could be established: [59]-[78]. His reasons for reaching that conclusion included: (a) There is substantial dispute about whether Mr Poulos made the comment alleged; (b) The applicant was not in attendance at the meeting at which Mr Poulos is alleged to have made the comment; (c) The comment was alleged to have been made at a meeting on 10 March 2011, but the complaint to the AHRC was made in January 2012; (d) The applicant's employment was not terminated as a result of the alleged comments or on racial grounds but because of alleged misconduct; (e) At the time the comment was alleged to have been made, Mr Amponsem may not have been an employee of the first respondent; (f) The meeting at which the comment is alleged to have been made was not "in public", it was upstairs in a roped off area (which Mr Amponsem's affidavit of 8 January 2014 concedes, although he argues the rope could have been removed and access obtained that way); (g) The primary judge was not satisfied that even the worst reading of what is alleged to have been said by Mr Poulos would fall within the requirements of the Racial Discrimination Act and be sufficient to attract a remedy. 19 I do not consider that the primary judge is wrong in the conclusions that he reached.

Substantial Injustice 20 Counsel for the respondents has properly noted that unlike leave applications concerning decisions which deal with a point of practice and procedure, if leave to appeal is refused it will have the effect of finally determining the issues between the parties, and that must be taken into account. 21 Mr Amponsem advised the primary judge that he wished to discontinue the proceedings on 20 February 2013, and elected to pursue the proceedings because the respondents pressed an application for costs. This is borne out by the transcript of the proceedings annexed to the respondents' written submissions. It is also borne out by [12] of Mr Amponsem's affidavit of 8 January 2014 which says: Back on 11th March 2013 I submitted an affidavit explaining the stress and medical help I have been receiving since being in court. In that affidavit I did state that I was happy to discontinue this case due to the stress it had brought on my health and for each party to pay their own costs. 22 This is a factor which weighs heavily in favour of the argument that Mr Amponsem would not suffer substantial injustice if either an extension of time to file an application for leave to appeal or leave to appeal were not granted, even though it would have the effect of determining the dispute between the parties. 23 Further, the alleged comment complained of is a single instance, and not part of a pattern of conduct. It is unlikely that the Court would order relief in the nature of that sought; that Mr Poulos be stood down. It is difficult to see what remedial or protective purpose such an order would serve since Mr Amponsem is no longer employed by the first respondent. Mr Amponsem did not indicate that he wished to pursue a claim for damages. 24 An apology can be an important remedy. However, even it if it were to be found that Mr Poulos made the comment alleged, Mr Amponsem does not now work with any of the people who attended the 11 March meeting and he did not attend it himself. I do not consider that this factor alone is of sufficient weight to work substantial injustice in the context, even accepting that Mr Amponsem may have been personally affronted at the report of such a comment and its gravamen that he treated his staff badly.

Extension of time 25 Mr Amponsem sought to attend by telephone the delivery of the judgement of the primary judge on 29 November 2013, but communications failed. However, Mr Amponsem confirmed that he received a written copy of the primary judge's reasons soon after. Mr Amponsem attempted to file a notice of appeal seven days after the last day prescribed by r 35.13 for filing the application for leave to appeal. His reason was that he was misled by the Registry and thought he had 21 days, the period prescribed under r 36.03 for filing a notice of appeal. For the reasons at [16] above, I do not consider this a weighty reason, even though Mr Amponsem is self-represented and even though he tried to file a notice of appeal within the 21 days period prescribed for notices of appeal. 26 I do not consider that Mr Amponsem would have good prospects of succeeding on appeal in relation to the primary judge's decision not to extend time for his claim under s 46PO of the AHRC Act for the reasons set out above. 27 There is no automatic right to an extension of time. The discretion to extend time is given for the sole purpose of enabling justice to be done between the parties so that rules which fix time do not become "instruments of injustice": Gallo v Dawson (1990) 93 ALR 479 at 480. There is also a public interest in the expeditious conduct of litigation. 28 I therefore dismiss Mr Amponsem's application to extend time to file a notice of appeal from the decision of the primary judge and order that he pay the costs of the first and second respondent as agreed or assessed in default of agreement. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell.