Giniotis v Human Rights & Equal Opportunity Commission

Federal Court of Australia|2000-08-07|Before: Branson J, Wilcox J, Gyles JJ, Whitlam J

WHITLAM J 1 Stella Stase Giniotis purports to appeal from a judgment of Branson J given on 15 March 2000 refusing to allow further time under s 11(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") for the lodgment of an application for an order of review. That is an interlocutory judgment, from which there is no appeal as of right. Mrs Giniotis accordingly requires leave to appeal. 2 The application for an order of review was filed on 22 February 2000 together with copies of the decisions the subject of the application. These were three decisions of Professor Alice Erh-Soon Tay, the President of the Human Rights and Equal Opportunity Commission ("the Commission") made on 29 September 1999. One decision was made under s 101 of the Disability Discrimination Act 1992 (Cth) ("the DDA") in respect of a complaint against three firms of solicitors. The other two decisions were made under s 101 of the DDA and s 24AA of the Racial Discrimination Act 1975 (Cth) in respect of one complaint against the New South Wales Legal Aid Commission and one of its solicitors and another complaint against the Office of the Legal Services Commissioner. None of these persons was a respondent to Mrs Giniotis' application under the ADJR Act, the only respondent to which was the Commission. 3 The Commission entered an appearance submitting to any order save as to costs. A member of the Commission legal staff appeared at the first directions hearing before Branson J. At that hearing her Honour pointed out to Mrs Giniotis that, since she had been furnished with copies of Professor Tay's decisions under cover of a letter dated 29 September 1999, the period within which any application under the ADJR Act had to be made expired after 28 days. Mrs Giniotis' application for an extension of time was adjourned until 15 March 2000 in order to give her an opportunity to file evidence in support of such an application. 4 At the hearing of that motion the staff solicitor from the Commission handed up a chronology, which has been included in the appeal papers before us. That chronology gives some background to the complaints made by Mrs Giniotis. The actual application for an order of review is nonsense. The grounds do not conform with s 5 of the ADJR Act, and the relief claimed bears no resemblance to kinds of orders that the Court might make under s 16 of that Act. 5 In dealing with Mrs Giniotis' application for an extension of time, Branson J referred to the well known statement of Wilcox J in Hunter Valley Development Pty Ltd v Cohen (1984) 3 FCR 344. Her Honour was hardly able on the material before her to form a view of the merits of the application. However, the possibility of any explanation for Mrs Giniotis' delay in commencing proceedings in the Court was explored. Her Honour said at [6] - [10]: "6. The further affidavit filed by Mrs Giniotis gives little, if any, particulars of the precise steps taken by her to invoke the jurisdiction of this Court as opposed to the general steps taken by her to deal with the numerous problems which she has faced over recent years. In response to questions from me, Mrs Giniotis has made it clear that the approaches to various authorities and agencies referred to in paragraph 4 of her affidavit of 10 March 2000 had little to do with any attempt by her to lodge an application with the Registry of this Court. None of the affidavits filed by Mrs Giniotis gives any evidence about her seeking advice from the registry of this Court as advised by the Commission. Nor do the affidavits explain the circumstances in which the application ultimately made by Mrs Giniotis came to be made.

In this case Mr Armstrong, appearing for the respondent, does not suggest any prejudice to his client and I see no reason to think that the Commission would be prejudiced were I to grant an extension of time. However, as Wilcox J pointed out in the Hunter Valley case, the mere absence of prejudice is not enough to justify the grant of an extension.

Wilcox J also indicated in the Hunter Valley case that the merits of the substantial application are a relevant consideration on an application for an extension of time. I have limited material before me upon which I could reach a concluded view on the merits of the substantial application. However, I observe that in each of the three decisions of the President reliance is placed on the fact that the complaint made by Mrs Giniotis was made more than 12 months after the acts of which she complained took place. Such delay is a proper ground for refusing to continue to inquire further into a complaint.

I have found this matter troubling because I am aware that Mrs Giniotis is acting with limited, if any, assistance with respect to complex matters which have caused her distress. Nonetheless, I must act in accordance with the law. The limited information placed before me by Mrs Giniotis does not provide an "acceptable explanation for the delay". Indeed, I remain unaware of any attempts made by Mrs Giniotis to act promptly after she was advised by the Commissioner of the time period for approaching this Court.

In all of the circumstances I am not satisfied that would it [sic] be an appropriate exercise of my discretion to extend the time within which Mrs Giniotis may lodge her application in this matter. The application for an extension of time is refused."

6 The decision of Branson J involved an exercise of discretion on a matter of practice and procedure. No reason has been advanced to suggest that the exercise of that discretion miscarried in some way. Notwithstanding that the practical effect of the interlocutory order is to preclude a challenge under the ADJR Act to Professor Tay's decisions, this is a case in which leave to appeal should be refused in accordance with the principles stated in Décor Corporation Ltd v Dart Industries Inc (1991) 33 FCR 397. Accordingly, I would refuse the application for leave to appeal. MOORE J 7 I agree for those reasons that that order should be made.

8 I also agree that that order should be made. I would wish to add a couple of remarks about the representation here. As Whitlam J has said, the Commission is the only respondent to the proceedings and has entered an appearance submitting to any order save as to costs. That means that the Court is left without any contradictor in this case. That is, in my opinion, unfortunate and is not the result of a proper understanding of the decision in the High Court in R v Australian Broadcasting Corporation; Ex parte Hardiman (1980) 144 CLR 13. It seems to me that in a situation where the procedure of a tribunal or body is challenged and there is no other proper contradictor, it is an appropriate occasion for the tribunal or body actually to be represented in order that the Court can be assisted to come to a proper determination. WHITLAM J

9 Accordingly, the order of the Court is leave to appeal is refused.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Whitlam, Moore and Gyles.

Mr J.J. Armstrong, Solicitor, appeared for the respondent.

Date of hearing: 7 August 2000

Date of judgment: 7 August 2000

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