Pitt v OneSteel Reinforcing Pty Limited

REASONS FOR JUDGMENT 1 This is an application for leave to appeal against the judgment of the Federal Magistrates Court of Australia, given on 7 November 2003. The learned federal magistrate dismissed an application in reliance on the Sex Discrimination Act 1984 (Cth) ("the Sex Discrimination Act") brought by the applicant. In doing so, her Honour relied on r 13.10 of the Federal Magistrates Court Rules 2001 ("the Federal Magistrates Court Rules"), under which the Federal Magistrates Court has the power to dismiss a proceeding because there is no reasonable cause of action, the proceeding is frivolous or vexatious, or the proceeding is an abuse of the process of the court. Her Honour dismissed the application on all three grounds. 2 Before coming to her Honour's reasons, it is necessary to go to the history of the proceeding. In 1995, the applicant was engaged as a contractor by the respondent, which was then known as BHP Steel (RP) Pty Ltd. During the time that he was working for the respondent, the applicant made allegations that a fellow worker had harassed him sexually, by touching his genitals on several occasions. On 10 November 1995, after the applicant had ceased to work for the respondent, he lodged a complaint against the respondent, alleging sexual harassment under s 28A of the Sex Discrimination Act. That complaint was lodged with the Victorian Equal Opportunity Commission as the delegate of the Human Rights and Equal Opportunity Commission ("the Commission"). The applicant attended a directions hearing on 14 November 1997, at which the complaint was set down for hearing, in accordance with the procedure that then prevailed under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ("the Human Rights and Equal Opportunity Commission Act"). On 1 December 1997, the applicant failed to appear at the hearing and the Commission dismissed the complaint on two grounds: first, that the applicant had been given adequate notice of the time and place of the hearing; and second, that there was not a strong case against the respondent on the papers. 3 That decision was given on 8 May 1998. Notification was given to the applicant of the decision by letter dated 11 May 1998, which also informed him of his right to apply to this Court for review of the decision. The applicant did not then apply for review of the decision. In or about 2002, he approached the Commission again and sought to have his complaint reopened. This application was refused. 4 In or about June 2003, the applicant lodged a second complaint with the Commission with respect to the same allegations. On 24 June 2003, the Commission terminated the second complaint, pursuant to s 46PH(1)(b) and (f) of the Human Rights and Equal Opportunity Commission Act, on the grounds that it was out of time and had been dealt with adequately by the Commission. 5 On 15 July 2003, within the 28-day time limit that he was allowed, the applicant filed in the Federal Magistrates Court an application with respect to the complaint, pursuant to s 46PO(1) of the Human Rights and Equal Opportunity Commission Act. On 29 August 2003, the respondent filed a response, seeking that the application be struck out with costs. On 10 September 2003 the federal magistrate made orders for the applicant to file and serve affidavit material in support of his application, and in response to the strike out application, and fixed the application for hearing on 7 November 2003. At that time the applicant had legal representation. The applicant did file an affidavit in which he made allegations in the following terms in para 8: In relation to the merits of my case I note that I have an internal memorandum from BHP dated 29 September 1995 in which it is set out that "Hich Tran admitted touching Tony Pitt's penis on several occasions but this was meant only as a joke". I submit that because of this evidence and my availability to give evidence in relation to the sexual interference which I suffered from, my case is eminently arguable. 6 In her reasons for judgment, which are designated as Anthony James Pitt v OneSteel Reinforcing & Anor [2003] FMCA 609, at [11] and [12], there appears the substance of the federal magistrate's reasoning: The affidavit prepared by the applicant does not show any reasonable cause of action, save to refer to the existence of an internal memorandum in paragraph 8 of that affidavit. There is no memorandum annexed to the affidavit. The basis of complaint in the affidavit appears to be what occurred around the hearing before HREOC in December 1997. Further, the affidavit does not simply fail to adequately address or justify the reasons for this unreasonable delay, it fails, in my view, to address this issue at all. Further, the affidavit of the applicant fails to address the issue of prejudice, such a very central question in these proceedings that might be occasioned to the first-named respondent. There is a complete absence of any address of that ground by the applicant. The application does not reveal on its face any action against the first respondent. The complaint is stale and I accept counsel for the first respondent's submission that the ability of the first respondent to defend itself is severely limited by the unavailability of the majority of the witnesses and the unreliability of any witnesses' recollections after so much time has lapsed. The applicant puts before the court no reasons for this unreasonable delay. 7 Although that judgment was delivered on 7 November 2003, it was not until 14 April 2008 that the applicant filed an application for leave to appeal. This application is by way of handwritten completions to a typewritten form. One of the handwritten completions is to describe the respondent as "B.H.P North Altona Melb". Obviously it will be necessary to amend the title to the proceeding to show the correct name of the respondent. Counsel for the respondent applied for such an amendment. 8 Because the judgment of the Federal Magistrates Court is an interlocutory judgment, the applicant needs an extension of time to apply for leave to appeal, pursuant to O 52 r 5(2) of the Federal Court Rules, where the period fixed by that rule is 21 days. Accordingly, the applicant is well beyond four years late in making his application. 9 Along with the application the applicant provided a draft notice of appeal. The only ground of appeal specified is a complaint that the federal magistrate described his claim as frivolous. I have endeavoured to explain to the applicant today that the word "frivolous", especially when coupled with "vexatious", is a technical legal term, in substance meaning the absence of a cause of action. The federal magistrate was certainly not describing the applicant as having acted frivolously in making his claim. 10 On 14 April 2008, the applicant also filed an affidavit. In that affidavit he says as follows: The nature of the case is that I was groped on the genitals by a co-worker while working at B.H.P North Altona in April 1995. The issues involved are that I was treated by a B.H.P representative and he said that I instigated the behaviour, and I didn't even receive so much as a sorry for the incident. The reasons why leave should be granted are that I suffer with depression and other psychological illnesses. I felt that there was nothing I could do about the situation, but I can't give up on the matter because it has affected me so deeply. I also could not find a solicitor to act for me, so I have to try to do it myself. The matter was heard on 10th September 2003 by Judge Hartnett in the Federal Court Melbourne, to which Judge Hartnett said the matter was frivolous. I wish to appeal Judge Hartnett's ruling. 11 In considering whether I should grant the applicant the extension of time that he needs, and grant him leave to appeal, I turn first to the question whether any appeal from the judgment of the federal magistrate is likely to succeed. In this respect, I have concerns that her Honour dealt with the case on the basis that it disclosed no reasonable cause of action and that it was frivolous and vexatious. It was clear that para 8 of the affidavit filed by the applicant in the Federal Magistrates Court raised a sufficient claim to give rise to the possibility that he might have succeeded under the Sex Discrimination Act. I take so much to have been conceded by counsel for the respondent today. To the extent that there was any onus on the question whether the respondent, as an employer, condoned the conduct of the applicant's fellow employee, or condoned the existence of a workplace culture in which such conduct was seen to be appropriate, the onus would lie on the respondent in any proceeding. Accordingly, it is difficult to see how the federal magistrate could dismiss the case on the basis that it disclosed no cause of action. The condition precedent of having a claim dismissed by the Commission had been satisfied, and there is apparently no statutory provision that prevents repeated applications being made to the Commission, even after considerable lapse of time. Accordingly, even though the Commission dismissed the latest complaint partly on the basis of its lateness, as it was entitled to do, that dismissal itself provides an adequate statutory basis for the commencement of a proceeding in the Federal Magistrates Court. 12 Having said that, I turn to the question of abuse of process. Here once again, the proceeding in the Federal Magistrates Court had been commenced within the statutory time limit of 28 days. Accordingly, it seemed to me difficult to label it, as the federal magistrate did, as an abuse of process, on the basis of the delay that had preceded its institution. I was inclined to think that, once Parliament had fixed a statutory limitation period, it was not open to a court to dismiss a proceeding as an abuse of process, when the proceeding was brought within that period. 13 Counsel for the respondent was able to refer me to Newcastle City Council v Batistatos [2005] NSWCA 20 (2005) 43 MVR 381, in which the New South Wales Court of Appeal upheld the dismissal of a proceeding simply because of excessive delay before it was instituted, even though there appears to have been no difficulty about statutory limitation periods. The delay in that case was gross, as were the physical injuries suffered by the person who had commenced the proceeding. Nonetheless, the New South Wales Court of Appeal took the view that the proceeding should be dismissed as an abuse of the court's processes. In the course of the reasons for judgment of Bryson JA, with whom Mason P and Giles JA agreed, at [56] and [57], there appear the following remarks: The observations in Walton v Gardiner confirm the availability of the court's power in civil proceedings, and its availability in cases where there is not, as well as where there is intended abuse of the powers and procedures of the court. My researches suggest that the use of this power on the basis of delay in instituting proceedings in civil cases must be rare. Norman v Howarth (2003) 180 FLR 1; [2003] FamCA 1284 is an instance. A circumstance which has probably restricted applications for and exercise of the power in civil cases, is the availability of statutory time limits for the institution of civil proceedings. Such statutes typically do not operate by conferring authorisation to delay, but simply prevent effectual institution of proceedings, irrespective of merits, after a period determined by the legislature, and they appear to give an authorisation of a kind to allow most of whatever period the statute allows to pass, so long as proceedings are instituted within that period. Observations of McHugh JA in Herron v McGregor at 253 illustrate the difficulty of concluding that there has been an abuse of process where this apparent authorisation exists. A similar difficulty presents itself in a different context where the court is asked to dismiss proceedings which have been commenced in due time but have not been conducted in accordance with time scales prescribed by Rules of Court; there has been a strong general reluctance to dismiss proceedings in such circumstances where the statutory time limits have not expired and it remains open to a plaintiff to commence fresh proceedings: see Birkett v James [1978] AC 297; [1977] 2 All ER 801 and Stollznow v Calvert [1980] 2 NSWLR 749. However, I am unable to see any reason in principle why the power should not be exercised in a proper case. The existence of apparent authorisation in a statute of limitation is not in principle a reason why great delay may not be an abuse of process, or a reason why the power of the court may not be exercised. 14 On the basis of that authority, I am not able to say that the federal magistrate in the present case could not have concluded that there was an abuse of process in bringing the proceeding in the Federal Magistrates Court, even though it fell within the statutory time limit. Her Honour took into account the very long delays that had occurred in finalising the latest proceeding in the Human Rights and Equal Opportunity Commission and it appears that she was justified in doing so. Her Honour also took into account material placed before her by the respondent, to the effect that a number of possible witnesses, who might have been called in any proceeding commenced earlier, were no longer available to the respondent as witnesses. Accordingly, it seems to me that there would be no basis on appeal for overturning her Honour's judgment that the filing of the application in the Federal Magistrates Court amounted to an abuse of the process of that court. 15 Having reached this conclusion now, I ought to conclude that I would not grant leave to appeal and therefore that I would not grant to the applicant the extension of time that he requires to seek such leave. In doing so, I do take into account both what was said in the applicant's affidavit in this Court and what he has told me in more expanded terms about his situation. I consider that, to a significant extent, the delay of more than four years in making the application for leave to appeal was explained by the applicant's situation. The applicant is serving a sentence of imprisonment and does suffer mental illness. He told me, and I accept, that his mental illness causes him to put his head in the sand and hope that things will go away and this is in part an explanation for the sporadic nature of the efforts he has made to pursue his claim of sexual discrimination over the years. I also accept that he has had great difficulty in finding legal representation in relation to this matter, representation that he did have at the time when the Federal Magistrates Court proceeding was on foot, but that he has not been able to obtain since. 16 It is not for the reason of unreasonable delay that I dismiss his application for an extension of time. It is because I regard the grant of leave to appeal, and the institution of any appeal, as futile for the reasons that I have given. 17 Accordingly, the orders that I make are as follows: