Croker v TAFE Commission

REASONS FOR JUDGMENT 1 In or about December 2008 a delegate of the President of the then Human Rights and Equal Opportunity Commission ('HREOC') terminated a complaint by the applicant, alleging discrimination under the Disability Discrimination Act 1992 (Cth), under s 46PH(1)(c) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ('the HREOC Act') on the ground that she was satisfied that the complaint was lacking in substance. Notice of that termination, dated 11 December 2008, and of the reasons for that decision were, in accordance with s 46PH(2) of the HREOC Act, issued by the delegate. 2 On 5 January 2009 the applicant filed an application in this Court under s 46PO(1) of the HREOC Act alleging unlawful discrimination. The respondent to the application was named as State of New South Wales, Department of Education and Training ('the State'). 3 By notice of motion filed on 20 February 2009 the State moved for summary dismissal of the proceeding and on 20 March 2009 Emmett J dismissed the proceeding: Croker v Department of Education and Training (NSW) [2009] FCA 350. In the course of his reasons, his Honour said: [5] The first basis upon which the State seeks summary dismissal is that the institution providing the educational services that the applicant apparently sought is the Technical and Further Education Commission, a body corporate formed under the Technical and Further Education Act 1990 (NSW). That Act apparently provides that the Commission may use and act under the name TAFE Commission. [6] Clearly the proceeding as presently constituted cannot possibly succeed and it should be dismissed. Whether or not the applicant has a valid claim against the TAFE Commission is a matter about which I am presently unable to express any view. It may be that the applicant will commence a fresh proceeding against the TAFE Commission. However, unless any such proceeding discloses some basis for relief, which is certainly not disclosed in the present application, any such further proceeding would suffer the same fate. 4 An application for leave to appeal against the judgment of Emmett J was dismissed by Buchanan J on 30 April 2009: Croker v Department of Education and Training (NSW) [2009] FCA 431. 5 The applicant commenced the present proceeding against the respondent by application, together with a Form 167 (O 81, r 5 of the Federal Court Rules ('the Rules')), both filed in this Court on 26 May 2009. 6 Section 46PO(2) of the HREOC Act requires an application to this Court to be made within 28 days after the issue of the notice under s 46PH(2), or within such further time as the Court allows. The 28 days expired on 9 January 2009 so that the applicant requires an extension of time within which to make his originating application. 7 In Bahonko v Nurses Board of Victoria (No 4) (2007) 97 ALD 721, Middleton J considered at [47] and [48] the principles to be applied in exercising the discretion under s 46PO(2) of the HREOC Act and held that the three main matters that need to be taken into account are: (a) The explanation of the delay; (b) any prejudice to the respondent; and (c) whether the applicant has an arguable case. 8 Subsequently, on 8 July 2009, the respondent filed a notice of motion seeking a stay or summary dismissal of the proceeding pursuant to O 20 r 5(1)(a) or (b) of the Rules; in the alternative, summary judgment in favour of the respondent pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) ('the Act'); in the alternative, that the applicant's 'Application and Claim' be struck out pursuant to O 11 r 16 of the Rules; in the alternative, that the applicant provide security for costs in the sum of $20,000 or such other sum ordered by the Court by a fixed time and date, that the proceeding be stayed until such time as the applicant provided such security and that if such security was not forthcoming by the time and date so fixed, the proceeding be dismissed. Additionally, the respondent sought an order pursuant to O 46 r 7A of the Rules, that the applicant not institute any proceeding against the respondent relating to the subject matter of the present proceeding except with the leave of the Court. 9 When the motion came on for hearing, I indicated to the parties that I did not think O 11 r 6 of the Rules enabled me to strike out the applicant's 'Application and Claim' even if I was minded to do so; that rule was concerned with the striking out of pleadings and could not be relied upon to strike out the applicant's originating application. Second, I indicated that until I determined the applicant's application for an extension of time in which to file his originating application, the orders and alternative orders sought on the motion were premature, even though there were common underlying issues as between the exercise of the Court's discretion as to whether an extension of time should be granted and whether or not to make the primary orders for relief sought in the motion. I therefore proceeded to hear the applicant's application for an extension of time to file his originating application in the Court outside the 28 days prescribed by s 46PO(2) of the HREOC Act.