KATBLEEN MCLAREN v MARTI ZUCCO

Federal Court of Australia|1994-11-07|Before: Northrop J

DISCRIMINATION LAW - Sexual Discrimination - enforcement of

registered determination of the Human Rights and Equal Opportunity Commission

Sex Discrimination Act 1984 (Cth) s81, 82A, 82B Federal Court Rules O 76 r 12

IN THE FEDERAL COURT OF AUSTRALIA TASMANIA DISTRICT REGISTRY No TG 20 of 1994 GENERAL DIVISION

Applicant AND: MARTI ZUCCO Respondent COURT: NORTHROP J PLACE: HOBART DATE: 7 NOVEMBER 1994

This is an application brought by the applicant, Kathleen McLaren against the respondent, Marti Zucco, in the form of Form 5 to the Federal Court Rules. It is said to be an application under section 82B of the Sex Discrimination Act

"On the grounds appearing in the accompanying Affidavit the Applicant claims:

That within fourteen days the Respondent pay to the

Applicant the sum of $4,000.00 together with interest.

That the Respondent pay the costs of this application."

This is the first directions hearing in relation to that application. The respondent has filed an appearance and is

represented today by his solicitor. The parties have agreed

"1. That the Respondent pay to the Applicant the sum of $4,000.00 by 2ist December 1994.

That the Respondent pay to the Applicant interest at the rate of 10 per cent per annum, such interest to accrue from the 3lst August 1994 and to be payable on the amount of the sum of $4000.00 outstanding

from time to time until the judgment debt is repaid."

At the directions hearing the Court raised a number of questions as to the nature of this application, the nature of the relevant provisions of the Sex Discrimination Act, and the need for the present application at all. In raising these matters the Court did not raise any questions as to the constitutional validity of the relevant provisions of the Sex Discrimination Act and proceeds on the basis that those

For present purposes the relevant provisions of the Act are contained in sections 81, 82A and 82B. In summary form, a power is conferred upon the Human Rights and Equal Opportunity Commission, upon a complaint made by a person under the Sex Discrimination Act, to make a determination of certain kinds including the payment of moneys and in this case the making of an apology. The Commission in the exercise of those powers conducted such an inquiry on the complaint of Kathleen McLaren. On 30 August 1994 the Commission made a determination as follows:

In accordance with s 81 of the Sex Discrimination Act

1984 (Cth), I find the complaint of sexual harassment substantiated.

the respondent apologise within 30 days to the complainant in writing in the following terms: "Apology

During the course of your waitressing work at my pizza restaurant in North Hobart in 1990 and in 1992, I conducted myself towards you ina manner which you found both sexually offensive and unwelcome.

I regret that I behaved in this way and apologise to you.""

Section 82A of the Sex Discrimination Act provides, for

"82A (1) This section applies to a determination made under section 80 or 81, except where the respondent is a Commonwealth agency or the principal executive of a Commonwealth agency.

(2) As soon as practicable after the determination is made, the Commission must lodge the determination ina Registry of the Federal Court.

(3) Upon lodgment of the determination, a Registrar must register the determination. In this subsection,

"Registrar" has the same meaning as in section 35A of the Federal Court of Australia Act 1976.

(4) Within 7 days after the determination is registered, the Commission must give written notice of the registration to the complainant and respondent to the determination. The notice must specify the date of registration and must include a copy of the determination. *

It appears that in compliance with section 82A of the Sex Discrimination Act, the Commission filed with the Registrar of

the New South Wales District Registry of the Federal Court an application for registration of determination and a form of registration of that determination. This was done in conformity with the provisions of Order 76 of the Federal Court Rules and in particular under rule 6. The registration was made by the District Registrar of New South Wales on 31 August 1994 and attached to that registration is the determination made by the Commission on 30 August 1994. I leave to one side the question of the service of notice of that registration and determination on the respondent but merely make the comment that, as appears from other sections of the Act, time is to run from the date of the registration irrespective of the date of notice of that registration being given to a party, or a respondent in particular. It seems to be unfair and against all concepts of judicial requirements that time is to run against a person who has not had notice of the requirement to do something or other. There is always the possibility of notice not being given to a respondent of the registration of a determination and the registration of that determination under section 82A of the Act, with the result that the respondent is in complete ignorance of the existence of such a registration. Yet, nevertheless, time is running against the respondent. This is something that should be drawn to the attention of the Legislature as, in its present

Section 82B of the Sex Discrimination Act contains provisions relating to matters following the registration of a

determination. Subsection (1) of section 82B provides:

"82B (1) Upon registration of a determination under section 82A, the determination has effect as if it were an order made by the Federal Court, but subject to the following provisions."

This is the subsection which may give rise to questions of whether it is constitutionally valid or not, but the effect of that subsection is that upon registration the determination is deemed to be an order made by the Federal Court with all consequences that flow from such an order of the Federal Court

"(3) No action for enforcement of the determination may be taken before the end of the review period."

On its face the words "no action for enforcement" would normally be construed as referring to steps that a successful party may take to enforce an order or judgment of the Court. There are many ways by which such an order or judgment can be enforced, whether by way of a writ of fi.fa or whether by way of contempt of Court. If a party required to do something by an order of the Court does not do that thing, the Federal Court Rules contain provisions for proceedings for contempt of Court as a means to enforce the doing of that thing. This is relevant in the present case because of the requirement that the respondent give an apology in writing. If that is not done, the respondent could well be in contempt of Court and could be punished accordingly. But the words "no action for enforcement" prima facie merely refer to that type of action that a successful party can take to enforce a judgment or

order obtained against the unsuccessful party. The Act then contains a number of provisions allowing for the "review period". The Act enables a respondent to seek a review of a determination made by the Commission. In

"(5) The respondent to a registered determination may apply to the Federal Court for review of the determination. The respondent's application for review must be made within 28 days after the date of registration of the determination."

This subsection is a perfect illustration of a time being imposed within which an action must be taken even though the person concerned has no knowledge of the commencement of the time. Thus time may commence to run even though the respondent has not been given notice of the action. On its face, there is no way by which that time can be extended.

This is part of the unfairness referred to earlier in these

For the sake of completeness reference is made to the term "review period" when used in section 82B. The phrase is

(a) if the respondent to the determination applies to the Court under subsection (5) for review of the determination - the period starting on the day the determination is registered and ending at the time when proceedings on that review are completed or otherwise terminated; or

(b) in any other case - the period of 28 days starting on the day the determination is registered."

In the present case, the advisers for the complainant, in the present application, had regard to Order 76 rule 12 of the

"12. An application for enforcement of a registered determination must be made by filing an application substantially in accordance with Form 5."

It is difficult to see the need for this rule. I have expressed the view that, prima facie, subsection 82B(3) has the effect of operating a stay period before a determination which has been registered can be enforced, but subject to that equivalent of a stay provision, all the powers allowing for enforcement of an order of the Court are available to the complainant who has obtained a determination from the Commission which has been registered in accordance with section 82A of the Act. Such rights include also the right to interest on such a judgment debt and reference was made in the

course of submissions to Order 35, rule 8 of the Federal Court

"A judgment debt carries interest at the rate of 10% per annum unless, in a particular case, the Court determines that justice requires a lower rate should be applicable."

It is noted that in the orders sought to be made it was suggested the interest be 10%. In the absence of any such a consent order being made, interest is charged in any event at 10 per cent, and if amounts are paid towards the total amount

of the debt, interest would cease on the amounts paid as from the date of payment but would continue on any unpaid amounts.

Nothing is gained from the proposed consent orders.

My main concern, however, as expressed during the course of submissions, is that a formal order based on a separate application for enforcement brought as an initiating application under the Federal Court Act and Rules is completely unnecessary. Rather than dismiss the application, however, it is proposed to adjourn the hearing of the first directions of the application to a later date to enable the

arrangement entered into between the parties to be completed.

As I understand it, the apology has already been given in writing so no questions of contempt of Court arise. The amount of the $4000 has not been paid although there is time to be given for the payment of that amount and interest paid accordingly. In all the circumstances, and without finally ruling on the question of whether a separate application is required, I propose to adjourn the directions hearing to the sittings commencing in Hobart on Monday, 20 February 1995 at a time to be determined by the Registrar. This will enable a period of time in which the parties can resolve their

difficulties and differences by the payment of the money.

If the money is paid, the parties can sign a consent order under order 35, rule 10, of the Federal Court Rules. The Court can make any order by consent without the need for the parties to attend Court on another occasion. I also

I certify that this and the preceding eight (8) pages are a true copy of the Reasons for Judgment of The Honourable Mr

Counsel for the Applicant: Mr R. Browne Solicitor for the Applicant: Director of Legal Aid Counsel for the Respondent: Mr J. Urinski

Human Rights and Equal Opportunity Commission Sex Discrimination Act 1984(Cth)

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