Pham v Commonwealth of Australia

REASONS FOR JUDGMENT 1 On 4 March 2002, the applicant filed in the Court an application alleging unlawful discrimination, relying on s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ("the HREOC Act"). That application contains allegations of discrimination under the Racial Discrimination Act 1975 (Cth) ("the Racial Discrimination Act") and the Disability Discrimination Act 1992 (Cth) ("the Disability Discrimination Act"). It names three respondents. The first is "Commonwealth of Australia (Human Rights and Equal Opportunity Commission)"; the second is "Commonwealth of Australia (Defence Force)"; and the third is "University of Queensland". 2 Attached to the application is a notice of termination pursuant to s 46PH(2) of the HREOC Act, issued by the President of the Human Rights and Equal Opportunity Commission ("the Commission"), indicating that a complaint made to the Commission has been terminated. That notice is dated 7 February 2001. Also attached to the application are documents indicating the nature of the complaint that was made by the applicant to the Commission in the first place. 3 It is necessary to deal briefly with the prior history of matters involving the applicant. At some time in March 1999, the applicant made a complaint to the Commission alleging discrimination in breach of the Racial Discrimination Actand the Disability Discrimination Act by the Department of Defence or the Australian Defence Force and by the University of Queensland. These allegations arose out of difficulties that the applicant had apparently encountered whilst attempting to pursue a degree of Bachelor of Dental Science at the University of Queensland and whilst in receipt of a scholarship from the Royal Australian Navy. The complaint arose, apparently, because the University of Queensland excluded the applicant after repeated examination failures and the applicant was unsuccessful in internal appeals against the decision to exclude him. The complaint against the Navy was that it had withdrawn the scholarship given to the applicant to study and terminated his probationary appointment as a sub‑lieutenant. 4 That complaint was the subject of a notice of termination issued by the Commission on 11 August 2000. On 8 September 2000, the applicant filed an application in the Court in respect of that terminated complaint. Whilst that application was pending, the applicant made another complaint to the Commission alleging discrimination in breach of the Racial Discrimination Act and the Disability Discrimination Act by the Commission itself and by three of its officers. The discrimination was alleged to have arisen in the handling of the first complaint by the Commission and by those officers. It is this second complaint to which the notice attached to the present application relates. 5 In the earlier proceeding in the Court there were directions hearings on 23 October 2000, 13 December 2000, 12 February 2001, 30 April 2001 and 20 July 2001. At the last of those, the applicant sought an adjournment of a trial date, which had been set for commencement on 30 July 2001. His application for an adjournment was refused. The applicant did not attend the Court on 30 July 2001 and his application was dismissed for non-attendance. On 22 August 2001, the applicant filed a notice of appeal from the decision of the single judge. He subsequently filed a supplementary notice of appeal. On 1 March 2002, a Full Court dismissed his appeal. I note that that dismissal of the appeal occurred three days prior to the filing of the present application. 6 Section 46PO of the HREOCAct, so far as it is relevant, provides as follows: "(1) If: (a) a complaint has been terminated by the President under section 46PE or 46PH; and (b) the President has given a notice to any person under subsection 46PH(2) in relation to the termination; any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Magistrates Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint. (2) The application must be made within 28 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows. (3) The unlawful discrimination alleged in the application: (a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or (b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint." 7 I found it difficult from the application and its attached documents to ascertain the nature of the complaint that the applicant was making. Accordingly, at the first directions hearing in the matter, on 8 April 2002, I made an order in the following terms: "1. On or before 29 April 2002 the applicant file and serve on each respondent: (a) a copy of any original complaint to the first respondent relevant to this proceeding and not already filed; (b) a copy of any notice of termination of a complaint by the President of the first respondent relevant to this proceeding and not already filed; (c) an affidavit containing particulars of all acts, practices or omissions of any respondent alleged by the applicant in this proceeding to constitute unlawful discrimination; (d) an affidavit containing grounds and particulars in support of an application for an enlargement of the time fixed by s 46PO(2) of the Human Rights and Equal Opportunity Commission Act 1986." 8 The applicant did not file any additional copy of any original complaint to the Commission or any additional copy of any notice of termination of a complaint by the President of the Commission. In response to par 1(c) of the order, the applicant filed a somewhat lengthy affidavit. To the extent to which that deals with the applicant's complaint against the Commission, it reads as follows: "a) Between 1998 and 2002, the Human Rights and Equal Opportunity Commission failed to comply with their statutory obligations and duty, in upholding Human Rights in Australia, in accordance with Rights [sic] and Equal Opportunity Act 1986, Racial Discrimination Act 1975, Disability Act 1997. b) The Commission conspired with the Second and Third Respondents to deprive the Applicant of his Human Rights to Health, Education and Opportunity, in covering up unlawful discrimination acts. Particulars: c) The Human Rights and Equal Opportunity Commission conspired with the Second and Third Respondents to deprive the Applicant of his Human Rights to Health, Education and Opportunity. The Commission set up the applicant to fail in the Federal Court by refusing to investigate his complaints, knowing full well his disability condition. The Commission used disability to racially discriminate against the Applicant by setting up the Applicant to fail so that the Respondents can claim superiority in race, intelligence, ethnicity, education." 9 The affidavit also sets out in some detail the complaints that the applicant seeks to make against the University of Queensland and against the Navy. Counsel for the second respondent suggested that the manner in which that material is set out is identical to material filed in the first application to the Court. In response to a question from me, the applicant conceded that it was very similar. 10 Each of the respondents has moved the Court for orders in substance dismissing the application filed on 4 March 2002. It is plain that that application was filed a considerable time after the expiration of the period specified in s 46PO(2), namely, twenty-eight days after the date of issue of the notice under s 46PH(2). If the application were to proceed, the applicant would have to persuade the Court to exercise the power under s 46PO(2) to allow a further time for the filing of the application. 11 In considering this matter, I have found useful the distillation of principles that appears in the judgment of McInnis FM in Phillips v Australian Girls' Choir [2001] FMCA 109 at [10]. Those principles are set out as follows: "1. There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The 'prescribed period' of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 550). 2. It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential pre-condition (Comcare v A'Hearn (1993) 45 FCR 441 and Dix v [Crimes] Compensation Tribunal (1993) 1 VR 297 at 302). 3. Action taken by the applicant other than by making an application to the court is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised. (See Doyle v Chief of Staff (1982) 42 ALR 283 at 287) 4. Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension. (See Doyle at p 287) 5. The mere absence of prejudice is not enough to justify the grant of an extension (See Lucic at p 416) 6. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. (See Lucic at p 417) 7. Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion (Wedesweiller v Cole (1983) 47 ALR 528)." 12 It is plain that a substantial period of time has elapsed between the giving of notice by the President of the Commission on 7 February 2001 and the filing of the application on 4 March 2002. It is necessary for me to be satisfied, therefore, that I should, in the sense that it is proper for me to, grant an application to extend the time for filing the application. I must give weight to the prescribed period and to the prima facie rule that a proceeding commenced outside the prescribed period will not be entertained. Although there is no rule that there has to be an acceptable explanation for the delay, I am entitled to have regard to such explanation as is given. 13 In the affidavit filed in compliance with par 1(d) of the order made on the first directions hearing, the applicant said this: "1. Due to disability, there was hardship on the Applicant to proceed with two Federal Court cases at the one time. Doctors Arumugam and Hogan was [sic] asked to provide written medical evidence. 2. The Human Rights and Equal Opportunity Commission refused to terminate the unlawful acts of disability discrimination against the Applicant by the Commission itself." 14 The material in par 1 of that affidavit has been supplemented to some extent by an exhibit to an affidavit filed in the Court today, which consists of a document entitled "Treating Doctor's Report". This appears to be a medical report, which expresses the diagnosis that the applicant was suffering from major depression. The account of the clinical features in the report is not easy to read. It appears to list depression, insomnia, loss of energy, something to do with concentration, "spending most of the day in bed and ruminating about past", something avoidance, inability to work. It notes that antidepressants, psychotherapy and cognitive behaviour therapy were prescribed. The condition was described as temporary and stable. The doctor, having examined the patient on 7 February 2001, expressed the view that the applicant was temporarily unfit for work or study from that date to 6 August 2001 inclusive. 15 To that extent, the report supports the applicant's proposition that, owing to his condition, he was hampered in commencing a proceeding. He describes that as hardship due to his disability. I am prepared to accept that the applicant was suffering from some hardship at that time. It must be pointed out, however, that he was attending directions hearings in the other proceeding and was apparently engaged in preparation for that. Of course, he did not turn up to the hearing, which was fixed within the period specified by the medical report as one for which he would be unfit to attend to work or study. I can only assume that the Full Court must have reached the conclusion that, notwithstanding such material, it was appropriate for the judge at first instance to have dismissed the application for non-attendance. 16 It should also be pointed out that, according to its own terms, the notice of termination attached to the application in this proceeding records that the complaint alleging race discrimination was terminated pursuant to s 46PE of the HREOC Act. That is a section that requires that, if the complaint includes as a respondent the President of the Commission, or the Commission itself, or a Commissioner of the Commission, and the complainant makes a written request to the President for termination of the complaint, the President must terminate the complaint. It follows that the view must have been taken that the applicant had requested in writing the termination of his complaint so that he could proceed in this Court. There is no explanation on his part for the fact that, having made that request, he then delayed for more than a year in making the application to the Court, other than the hardship arising from his disability and the handling of a second proceeding at the same time. 17 In my view, the applicant must be taken to have rested on his rights. All that was necessary for him to do was to file an application in the Court and to attend to whatever directions hearings were necessary in order to progress that application. He has shown by the nature of the documents that he has prepared and filed, and by the manner in which he has made submissions to the Court in this proceeding, that he does not lack the capacity to perform those tasks. 18 It is not put that there is prejudice to any respondent in having to defend the proceeding at this point, but the mere absence of prejudice is not enough to justify the grant of an extension of time. 19 In so far as the merits of the substantive application are concerned, the applicant is in considerable difficulty in relation to the second and third respondents, the Defence Force and the University of Queensland. It does appear that there is no significant difference between the complaints that he makes in the present proceeding and the complaints that he made in the previous proceeding, which has been dismissed. In relation to those respondents this appears to be nothing more than an attempt by the applicant to proceed again in respect of what he had proceeded with and should have pursued in the earlier proceeding. 20 There are other difficulties he faces in relation to those two respondents. One is that the notice of termination attached to this application makes it clear that at no stage were those two respondents named as respondents to the complaint which led to that notice of termination. It follows that the applicant would have difficulty in any event in satisfying the requirements of s 46PO(3) of the Act. I am required to consider fairness as between the applicant and other persons. The applicant is presently unrepresented. He has plainly suffered considerable illness in the past. Nonetheless, he seems to be determined to continue pursuing allegations against two of the respondents which, as a matter of law, have been put to rest. 21 So far as his case specified in his affidavit against the Commission is concerned, it is anything but particularised. He has made what are in my view vague allegations of a failure to comply with statutory obligations and duties and of conspiracy with the other two respondents. It does not appear from that document that his application has significant merits. He has not expanded upon those matters in his submissions. 22 In balancing up all these considerations, I take the view that it would be wrong to allow the applicant to extend the time to commence the proceeding. I am also of the view that s 46PO(3) of the Act prevents the applicant from proceeding against the second and third respondents. Further, the similarity of the matters complained of against those two respondents with the matters that were the subject of the earlier proceeding is a bar to this application continuing against those two respondents. 23 The second paragraph of one of the affidavits filed in this proceeding by the applicant, which I have quoted above, refers to a refusal by the Commission to terminate what are described as the unlawful acts of disability discrimination against the applicant by the Commission itself. That paragraph is repeated in the affidavit that the applicant handed up today, which also contains the following paragraph: "4. The Applicant indicates that the complaint that The Human Rights and Equal Opportunity Commission terminated, was not the complaint that the Applicant made to the Commission, as evidenced by the terminating documents." 24 These passages tend to suggest that the applicant takes the view that there is still a live complaint before the Commission, relating to matters that he has raised. If that be the case, then it is my clear view that the Court lacks any jurisdiction to deal with such a complaint. Section 46PO(1) appears to me to contain conditions precedent to the exercise by the Court of jurisdiction under the HREOC Act. There must be a complaint that has been terminated by the President, and a notice given in relation to the termination, before a proceeding can be commenced in this Court. To the extent to which there is an unfinished complaint before the Commission, the Court has no jurisdiction to deal with it. 25 The applicant said on several occasions in his submissions that he sought that the President of the Commission provide a report to the Court pursuant to s 46PS of the Act. That section does not appear to give the Court power to order the President to forward a report. Even if it did, it would only give the Court such power in a properly constituted proceeding before the Court, and no such proceeding exists. 26 For all of these reasons, the application filed on 4 March must be dismissed. 27 The order of the Court, then, is: