O'Hara v State of Victoria

REASONS FOR JUDGMENT 1 On 6 December 2005, the applicant filed in this Court an application invoking the jurisdiction conferred on the Court by s 170CP(1) and (2) of the Workplace Relations Act 1996 (Cth) ('the Workplace Relations Act'). In the application, the applicant seeks reinstatement in his previous employment as an outdoor education teacher at Lilydale High School, compensation from the date of his dismissal for lost wages and earnings, and costs. 2 The applicant began employment at the Lilydale High School on 10 February 2003. He was dismissed from that employment, his dismissal being confirmed by a letter from the Director of the Office of School Education dated 9 April 2003. The reason given for the dismissal at the time was that, for the purposes of gaining employment, the applicant had made a statutory declaration in which he declared that he did not have any convictions, findings of guilt, or pending charges of a non-traffic nature in Victoria, or any other State of Australia, or under Commonwealth law. In fact, as the applicant conceded to the Court, he had been convicted of several offences in the County Court at Melbourne, in November 2002.

3 The applicant took proceedings in the Australian Industrial Relations Commission ('the Commission'), pursuant to s 170CE of the Workplace Relations Act. His capacity to do so was challenged on the basis that, because in any event his employment was due to cease in June 2003, he was completing a qualifying period of employment and his application was barred by subss (5A) and (5B) of s 170CE. Initially, on 12 August 2003, Deputy President Hamilton dismissed the applicant's application, on the basis that his employment had been for less than three months, and therefore his dismissal fell within s 170CE(5A). On 22 August 2003, the applicant appealed from the decision of Deputy President Hamilton. A Full Bench of the Commission gave its decision on the appeal on 13 January 2004. The Full Bench allowed the appeal in part. In essence, the Full Bench held that subs (5A) of s 170CE rendered invalid only that part of the application that related to the harsh, unjust or unreasonable ground. The Full Bench decided that, so far as the applicant's application relied on alleged contraventions of ss 170CK and 170CM, it was necessary to refer the application for appropriate further action. 4 That further action was conciliation by the Commission. On 6 February 2004 Senior Deputy President Williams of the Commission issued a certificate in accordance with s 170CF(2) of the Workplace Relations Act, certifying that all reasonable attempts to settle the matter by conciliation had been, or were likely to be, unsuccessful in respect of the grounds of alleged contravention of ss 170CK and 170CM. The Senior Deputy President stated that he was unable to make an assessment of the merits of the case, due to a conflict in the factual position and the necessity to hear evidence. 5 By reason of s 170CFA(4) and (6) of the Workplace Relations Act, the applicant then had seven days from 6 February 2004, ie until 13 February 2004, to lodge a document containing an election to take court proceedings, if he wished to do so. The applicant lodged his election on 6 February 2004, stating that he wished to proceed in this Court in respect of the grounds under both ss 170CK and 170CM. By reason of s 170CP(6), he then had a period of 14 days, or such further period as the Court might allow, in which to make his application to the Court. The fourteen-day period expired on 20 February 2004. As I have said, the application was not filed until 6 December 2005. 6 The respondent, the State of Victoria, by its Department of Education and Training, indicated at the first directions hearing that it wished to seek to have the proceeding dismissed as incompetent. At that directions hearing, I directed the filing of material in support of, and in opposition to, any application to exercise the undoubted power given by s 170CP(6) to enlarge the time within which the application can be made. 7 The principles upon which an application for enlargement of time in a case such as this should be determined have been the subject of comment in a number of cases. They are most conveniently set out for present purposes in the judgment of Marshall J in Jennings v Salvation Army [2003] FCA 1193 (2003) 128 IR 366 at [9], where his Honour quoted from the judgment of a Full Court of the Industrial Relations Court of Australia in Roger Coyne v Ansett Transport Industries (unreported, Industrial Relations Court of Australia, Wilcox CJ, Ryan and Madgwick JJ, 24 September 1996). The principles so quoted are as follows: '1. Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to extend. 2. Action taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time. 3. Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time. 4. The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time. 5. The merits of the substantive application may be taken into account in determining whether to grant an extension of time. 6. Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court's discretion.' 8 I deal first with the lapse of time, and with the question whether there should be an enlargement of time because there has been an acceptable explanation. As I have said the lapse of time involved over one year and nine months from the date when the application should have been filed. A period of that length itself may be sufficient to defeat an application to enlarge time. As McHugh J said in Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67 (2000) 177 ALR 491 at [16], when dealing with an application to extend time limits imposed by the High Court Rules in respect of relief under s 75(v) of the Constitution: 'Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay. As the Judicial Committee of the Privy Council said in Ratnam v Cumarasamy [[1965] 1 WLR 8 at 12], "[t]he rules of court must prima facie be obeyed."…In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this court.' 9 The applicant's explanation of the delay has involved a number of issues. I accept that he is an unrepresented litigant, with no knowledge of the law. It is clear, however, that he had taken two steps in the Commission, instituting his proceeding there and appealing to the Full Bench, both of which involved time limits. Together with his certificate dated 6 February 2004, the applicant was given a note, making it clear to him that it was incumbent upon him to commence proceedings before an appropriate Court, and that lodgement of a notice of election did not have the effect of commencing any Court proceedings. Perhaps regrettably, the notice did not advise that there was a time limit attached to the commencement of proceedings in the Court, much less what that time limit in fact entailed. 10 The applicant, in his material, was inclined to blame the respondent for failing to give him advice as to the presence of a time limit, or its duration. It was no part of the respondent's function to give the applicant such advice. It was no part of the respondent's function to anticipate that the applicant would wish to bring proceedings in the Court. In particular, it was no part of the respondent's function to encourage the bringing of those proceedings, and the consequent expenditure of public money. 11 The applicant relied in part on the fact that he had been misled by the fact that the respondent had commenced a proceeding in the High Court of Australia, challenging the correctness of the decision of the Full Bench of the Commission and, with the applicant's consent, had that proceeding remitted to this Court. That proceeding was discontinued by the respondent on 8 April 2005, by filing a notice of discontinuance in this Court. To the extent to which the applicant might have been misled by the continuance of that proceeding up until that time, he could not have been misled after that time by that proceeding. Almost eight months elapsed after the discontinuance of that proceeding, before the applicant commenced his present proceeding in this Court. 12 The applicant told me from the bar table that it was not until four weeks before he commenced this proceeding that he spoke to a lawyer. He apparently spoke to a lawyer of his acquaintance about another matter, and the issue of his dismissal from employment was raised incidentally. He then received advice, so he told me, that there was a time limit attached to the bringing of a proceeding of this kind and that the time limit was well and truly exceeded. Notwithstanding this advice, it was another four weeks before the applicant filed his proceeding in this Court. That is a period double the time limit provided for in the statute. 13 The applicant relied primarily on the proposition that he is a very heavily committed, and very busy, person. He is, so he said, the head of intelligence for an organisation known as the Jewish Defence League, which has the task of investigating and dealing with Muslim and Arab terrorist threats and neo-Nazi groups throughout the world. He told me that he is one of 16 people involved in that organisation in Australia, but there are many more elsewhere in the world. It is apparently an unpaid job, but a very demanding one, and draws on what the applicant said is his background in military intelligence. Much of this it is necessary for me to take on faith, because it is not dealt with in any detail in the applicant's affidavit material, but I accept the fact that the applicant is very heavily committed and very busy. To some extent, however, there is an issue of priorities involved. Even the busiest person will find time to do something that has to be done before a time limit expires. 14 I should also mention that the applicant revealed to me that, since 2001, he has been enrolled as a law student at Griffith University in Queensland. Apparently that enrolment is more for the purpose of obtaining a library card, and using the resources of the university, than it is for actually studying law. The point that I take from it is that the applicant had available to him library facilities that, at the very least, would have enabled him to investigate the issue of time limits, had he chosen to do so. 15 The second principle quoted by Marshall J in Jennings relates to action taken otherwise than in the Court to contest the termination. There is no material before me suggesting that the applicant has in any way done anything that would have kept the respondent informed of the proposition that he regarded the issue of his termination of employment as still a live one. 16 The next two principles involve the issue of prejudice to the respondent. The respondent attempted to make a case of prejudice arising from the delay. According to its affidavit material, both the principal of Lilydale High School at the time, and the officer who signed the letter of dismissal, are no longer employed by the Department of Education and Training. The affidavit does not say that it is impossible to obtain information from those persons for the purpose of instructing counsel and solicitors in the case. Nor does the affidavit material indicate that those persons will be unavailable to give evidence, or will have no recollection of the circumstances of the dismissal. The affidavit material also says that the respondent discontinued the earlier proceeding in this Court, remitted from the High Court, on the basis that the applicant had not taken any steps to pursue his claim since filing his notice of election on 6 February 2004. The reason for discontinuing the proceeding was that the respondent considered the expenditure associated with prosecuting the proceeding to be unjustified. Counsel for the respondent conceded today that any point that might have been raised in that case, as to want of jurisdiction in the Commission, could be raised in the present proceeding, as to want of jurisdiction in the Court. There appears to me to be no reason why the same point could not be agitated in this proceeding. Given the application of s 347 of the Workplace Relations Act, which would prevent the successful party from claiming costs of a proceeding in most circumstances, it is difficult for me to see how the discontinuance of that earlier proceeding, in reliance on the applicant's failure to institute the proceeding he has now instituted, could be said to amount to prejudice. I therefore proceed on the basis that the respondent has suffered no prejudice, but taking into account the fourth principle from Jennings, which is that the mere absence of prejudice is an insufficient basis to grant an extension of time. 17 The fifth principle relates to the merits of the proceeding. The applicant made it very clear that he is particularly interested in attempting to demolish the validity of the ground that was given as the reason for his termination. That ground, of course, was the making of a false statutory declaration as to prior convictions. I drew to his attention that, even if he were able to establish that that ground was entirely false, that would not itself bring him success in the proceeding. His proceeding in this Court is necessarily confined to the particular grounds that he has raised. Under s 170CK of the Workplace Relations Act, the applicant claims that he was dismissed for reasons that included those found in subs (2)(f) of that section, particularly political opinion, national extraction or social origin. In substance, the applicant claims that he was discriminated against and dismissed in consequence of the fact that he holds his position in the Jewish Defence League, and the fact that he is the illegitimate son of Adolf Hitler, thereby giving rise respectively to the grounds of political opinion on the one hand and national extraction or social origin on the other. 18 There is no doubt that, at the time leading up to the dismissal, there was considerable publicity about the applicant's involvement with the Jewish Defence League and his claims as to his biological origins. The matter was, as the applicant put it, leaked to the Herald Sun newspaper by a fellow teacher, after one of the students at the school had discovered evidence of it whilst researching for a school project on the internet. The Herald Sun sensationalised the issues by suggesting that the applicant was a terrorist, or someone associated with terrorists, working in the school system in Victoria. The matter was also taken up on a radio station, 3AW, by one of its hosts, Neil Mitchell, who apparently interviewed the Minister for Education and Training, Ms Lynne Kosky, and, as the applicant put it, 'seriously embarrassed' her. 19 The applicant would therefore seek to make the case that the Minister had a direct hand in the dismissal, and that it was done for reasons of his involvement in the Jewish Defence League and his biological origins, being his national extraction or social origin. On these issues counsel for the respondent conceded that the respondent would carry the onus of proof. That is to say, it would be necessary for the respondent to prove on the balance of probabilities that whoever made the decision to dismiss the applicant from his employment did not have as a reason for that decision the applicant's political opinion, or his national extraction or social origin. There is material before the Court in which it is suggested that the only reason for the dismissal was the applicant's conviction for several offences in November 2002 and his failure to reveal those convictions in his statutory declaration. There is, however, one sentence in the briefing paper to the person advanced by the respondent as the decision-maker, drawing attention to the publicity surrounding the applicant's continuing employment. On the assumption that the decision-maker was aware of the nature of the publicity, this gives rise to the possibility that, at least, the respondent would have to go into evidence in order to attempt to satisfy the onus of proof. 20 One further matter about the merits needs to be mentioned and that is as to the relief sought by the applicant. Given that the employment was for a limited duration and, as I have said, due to expire in June 2003, it could not be said that reinstatement in employment was any longer a possibility. The position that the applicant occupied has gone and it would not seem possible for the Court to compel the respondent to create another position for him. The temporary nature of the position would seem to preclude that. As far as compensation is concerned, it would also seem fairly clear that the maximum compensation that the applicant could hope to achieve would be the remuneration that he had lost for the remainder of that term of employment, as a result of the dismissal. The amount of money at stake would therefore not appear to be very significant. Indeed it might be the case that, if the applicant were represented by lawyers, as he is not, he would find himself out of pocket at the end of the day, even if he were to succeed, because he could not also claim costs, having regard to s 347. 21 There appears to be no substance in the ground raising contravention of s 170CM of the Workplace Relations Act, because the applicant appears to have been given pay in lieu of the period of notice required under that section. 22 The sixth of the principles that were considered in Jennings does not appear to be applicable in the present case. 23 It therefore appears to me that I have to decide whether to grant the applicant the extension of time he seeks by balancing, on the one hand, the very long and not very satisfactorily explained delay before commencement of proceedings and, on the other hand, the prospect of success that might arise from the fact that the respondent would carry the onus of proof on the grounds under s 170CK of the Workplace Relations Act. The balance is therefore between the serious lapse of time and the possibility of success, arising from the fact that the respondent has the onus of proof on the crucial issues, and there is some slight evidence that at least the circumstances that the applicant claims were the reasons for his dismissal might have been present in the mind of the decision-maker. It is a difficult balance to make, because it is a balance between two different things. What tips it seems to me to be the relatively inconsequential nature of any relief that the applicant could claim if he were successful. As I have said, in any event, a relatively small amount of money would seem to be all that he could claim successfully, and even that might be subject to questions of duties to mitigate loss and damage, and so forth. 24 As the first of the principles which are quoted in Jennings says, the prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to extend it. Having regard to the proposition found in the judgment of McHugh J to which I referred earlier, it seems unlikely, in the circumstances of a case such as the present, that it would ever be regarded as equitable to extend a time limit to the extent required in the present case. 25 For those reasons, I refuse to grant to the applicant the extension of time that he seeks. It follows that it will be necessary for me to dismiss his application. 26 The orders that I make are: