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[2019] FCA 1607
Federal Court of Australia
2019-09-27
Abraham J
Original judgment source is linked above.
ABRAHAM J: 1 The applicant applies for leave under s 46PO(3A)(a) of the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act) to make an application to this Court alleging unlawful discrimination under the Disability Discrimination Act 1992 (Cth) (the DD Act). 2 The applicant, who is a former police officer employed by the Commissioner of Police, as a member of the NSW Police Force, was medically discharged on 17 December 2015. He alleges that the respondent, the Commissioner of Police, NSW Police Force, discriminated against him for the purposes of s 15(2)(a),(b) and/or (d) of the DD Act by revoking his appointment as Leading Senior Constable because of, or for reasons which included, that the applicant had, or was imputed to have, a disability arising from a work related psychological condition (the revocation). The effect of the revocation was to immediately reduce his rate of pay. Upon his medical retirement, the applicant became entitled to a lifetime pension as a member of the Police Superannuation Fund (the Fund), which is calculated by reference to his salary as at the date of discharge. The applicant contends that as a result of the revocation his pension was reduced and he continues to suffer financial loss as a result of the decision and will continue to do so until his death. His wife will also suffer financial loss until her death. 3 On 21 November 2017, the applicant made a complaint to the Australian Human Rights Commission (AHRC) alleging unlawful discrimination on the grounds of disability in his employment. On 11 April 2018, that complaint was terminated under ss 46PF(1)(b) and 46PH(1)(b) of the AHRC Act by a delegate of the AHRC. 4 On 7 June 2018, the applicant commenced proceedings in this Court. Section 46PO(3A)(a) of the AHRC Act provides that leave of this Court is required to make this application. 5 The respondent opposes the grant of leave. Background 6 The factual background to this matter is taken from the submissions of both parties. 7 In 1984 the applicant commenced employment with the NSW Police Force as a Probationary Constable, and on 18 May 1985 was confirmed as a Constable. Consequently, the applicant was a member of the Fund, established by the Police Regulation (Superannuation) Act 1906 (NSW) (PSR Act). 8 From 1990 the applicant was a member of the Forensic Services Group, in particular, the Identification Services Branch. In May 1993, the applicant was promoted to the rank of Senior Constable, and in 2002 he was appointed as a Leading Senior Constable. This carried with it a pay increase and resulted in the applicant's contributions to the Fund being made at that increased pay rate. 9 In an agreement with the Police Association of NSW (the Association) made in 2001, the Commissioner created the role of Leading Senior Constable to provide an incentive for experienced police officers to provide a role in guiding, mentoring and tutoring less experienced police officers. Leading Senior Constable is an appointment to a particular status within the NSW Police Force. Leading Senior Constables hold the rank of Constable and the grade of Senior Constable. It is not, however, designated as a rank or grade under the Police Act 1990 (NSW) (see s 12(1)) or the Police Regulation 2015 (NSW) (see cl 5). 10 The applicant's appointment as Leading Senior Constable was revoked, effective from 15 January 2015. At that time the applicant's salary reverted to that of an officer of the rank and grade of Senior Constable Level 6. 11 Superintendent Paul Glinn, then Commander of the Identification Services Branch, revoked the applicant's appointment as a Leading Senior Constable which he said was in accordance with the Leading Senior Constable Guidelines on the basis that the applicant could not fulfil the inherent requirements of the particular work. 12 On 31 May 2009 the applicant was involved in an on duty motor vehicle accident. As a result, he was absent from work from 1 June 2009 until his medical discharge, which was due to physical and psychological injuries arising from the accident. Although certified fit for restricted duties in about August 2011 the applicant never returned to work. The applicant received sick pay from 2 June 2009, throughout the period on sick leave. However, from the date of the revocation that pay was at the reduced rate. 13 On medical retirement the applicant became eligible for a lifetime pension, at a rate determined by the applicant's salary at the time of his retirement: s 10 PSR Act. 14 The applicant sought internal review of the revocation decision within the NSW Police Force, with the assistance of the Association. In January 2016, the final request for internal review of the decision was rejected. 15 On 21 November 2017, having sought legal advice, the applicant lodged a complaint with the AHRC alleging unlawful discrimination contrary to ss 5 and 6 of the DD Act, on the basis of discrimination in employment relying on s 15(2)(a), (b) and/or (d) of the DD Act. The act said to constitute the unlawful discrimination is the revocation. 16 On about 1 February 2018, a delegate of the AHRC foreshadowed an intention to terminate the complaint without inquiry under s 46PF(1)(b) of the AHRC Act on the basis the complaint was lodged more than 12 months after the alleged act. By letter dated 1 March 2018, the applicant made a submission against that approach. 17 By way of Notice of Termination dated 11 April 2018, the delegate terminated the complaint on the basis of a "substantial delay in bringing the matter forward". As for the reasons for the delay the delegate observed that "it remains unclear why the advocates he consulted at the time did not provide the applicant with information about his rights under the [DD Act] or assist him to make a complaint". As to the "merits" of the complaint, the delegate referred to s 21A of the DD Act and observed: ... Section 21A of the DDA says that it will not be unlawful to discriminate against a person on the ground of disability if the discrimination relates to particular work and because of their disability, the person would be unable to carry out the inherent requirements of the particular work. The information you provided indicates that the NSW Police Force, after reviewing information including neuropsychologist and psychologist reports, formed the view that Mr Ryan was unable to perform the inherent requirements of the LSC Role. The documents you provided indicate that the NSW Police Force was of the view that it had exhausted all reasonable efforts to rehabilitate Mr Ryan to his pre-injury duties prior to revoking his LSC status and that it had received independent medical advice that confirmed Mr Ryan could not return to his pre-injury duties. Conversely, there is no information currently before the Commission to indicate that Mr Ryan was fit to perform the particular work of a LSC at the time he was demoted or would be able to do so, if reasonable accommodation was provided. I note the psychologist report you provided indicates that Mr Ryan was fit to perform 'suitable duties' in December 2013, but does not elaborate what the suitable duties would have entailed. 18 The delegate stated that, whilst she accepted that the applicant had "a genuine and on-going sense of grievance about the decision" that was the subject of his complaint, after considering the factors set out in the decision, she decided that it was "appropriate to terminate Mr Ryan's complaint because it was lodged more than 12 months after the alleged acts, omissions and practices occurred". 19 The applicant read two affidavits, sworn 13 May 2019 and 17 July 2019, in support of the application for leave. The affidavits amongst other things addressed the issue of the delay in instituting the proceedings. Principles in relation to the grant of leave 20 Section 46PO(3A) was introduced into the AHRC Act, effective from 13 April 2017. Section 46PO is relevantly in the following terms (with notes omitted): 46PO Application to court if complaint is terminated (1) If: (a) a complaint has been terminated by the President under section 46PE, paragraph 46PF(1)(b) or section 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 Circuit Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint. …. (2) The application must be made within 60 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. (3A) The application must not be made unless: (a) the court concerned grants leave to make the application; or (b) the complaint was terminated under paragraph 46PH(1)(h); or (c) the complaint was terminated under paragraph 46PH(1B)(b). (4) If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect: (a) an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination; (b) an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant; (c) an order requiring a respondent to employ or re‑employ an applicant; (d) an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent; (e) an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant; (f) an order declaring that it would be inappropriate for any further action to be taken in the matter. … (5) In the case of a representative proceeding under Part IVA of the Federal Court of Australia Act 1976, subsection (4) of this section applies as if a reference to an applicant included a reference to each person who is a group member (within the meaning of Part IVA of the Federal Court of Australia Act 1976). (6) The court concerned may, if it thinks fit, grant an interim injunction pending the determination of the proceedings. (7) The court concerned may discharge or vary any order made under this section (including an injunction granted under subsection (6)). (8) The court concerned cannot, as a condition of granting an interim injunction, require a person to give an undertaking as to damages. 21 In James v WorkPower Inc [2018] FCA 2083 (James v WorkPower Inc), Mortimer J considered the history of the provision and the context in which it now appears. Her Honour concluded at [37]-[38]: 37. I am satisfied that the text, context and purpose of the leave requirement in s 46PO(3A) suggests that it is appropriate for the Court to consider in determining whether to grant leave whether the claims made by an applicant are reasonably arguable, and are - at the least - not fanciful. This is consistent with the language used in s 46P(1A). I do not consider, read in context, that s 46PO(3A) sets the bar particularly high: the purpose of the provision is to act as a filter to preclude complaints whose merits are disproportionate to the time and resources likely to be consumed by dealing with them in a whole proceeding, but not to impose a barrier of any substantively greater level. 38. There may be a range of other permissible considerations including: (1) the circumstances of the parties: how important the subject matter of the complaint is to both the applicant and any respondent, and to their respective circumstances; (2) the nature of the allegations made (including whether for example they involve allegations of continuing discrimination, or how serious the discrimination is alleged to be); (3) how thoroughly the Commission has dealt with the merits of the complaint. For example, it may be the Commission's termination reasons thoroughly answer the alleged merits of a complaint and make it clear the complaint is not reasonably arguable; (4) whether an applicant has delayed in complaining about the alleged discrimination and if so whether there are any explanations for that delay; (5) whether a respondent has attempted to address the allegations in any way outside the Commission process and whether the allegations have been addressed or resolved in any way; (6) the factual and legal complexity of the matters raised by the allegation of unlawful discrimination; (7) whether the allegations raise issues of public importance, or of general application. The express power given to the President in s 46PH(1)(h) does not exhaust the circumstances in which this factor might be considered; and (8) other factors that are often considered in leave applications - such as prejudice to a party. 22 As Mortimer J concluded at [39]: It would be a denial of procedural fairness to an applicant at the very least and, in my opinion, a misunderstanding of the role to be played by the leave requirement in s 46PO(3A), if the Court were to embark on a detailed consideration and determination of the merits of the applicant's underlying arguments about unlawful discrimination. Questions of fact, and questions of law, which are arguable are to be determined at trial, subject to any Court-directed processes such as the stating of a separate question under r 30.01 of the Federal Court Rules. 23 Those principles from James v WorkPower Inc were recently applied in Pathmanathan v St John of God Healthcare Inc [2019] FCA 1460. While the parties disagree as to the result of the application of those principles to this case, they nonetheless agree that they are the principles to be applied. Consideration 24 The applicant submitted that in the context of these proceedings, there are three matters of particular significance in the assessment of whether leave should be granted to make the application being: (1) the nature of the claim and the ongoing loss being suffered by the applicant as a result of the allegedly discriminatory act; (2) the existence of a reasonably arguable claim for final relief; and (3) the delay in making the complaint to the AHRC. The applicant also argued that this matter raises issues of general importance and ongoing significance. In a nutshell the respondent contends that the arguments it put answers each of the legal issues raised. The respondent opposed leave on the basis that the applicant's claims suffer from a number of deficiencies which mean his case is not reasonably arguable: first, the argument proceeds on an erroneous premise that there is an employment relationship between the Commissioner and the applicant; second, that the Commissioner made the revocation pursuant to and in accordance with an Award; and third, if there was discrimination, the inherent requirements defence in s 21A of the DD Act would apply. The respondent, in opposition to the grant of leave relied significantly on the delay in bringing the proceedings. 25 In reply, the applicant took issue with the merit of legal submission advanced by the respondent but contended that the respondent's submission highlighted the broader ramifications and general importance of this matter. 26 Turning to the considerations in James v WorkPower Inc, referred to at paragraph [21] above. Leaving aside for the moment the question of delay, the other considerations referred to in James v WorkPower Inc at [38], when applied to this matter, all weigh in favour of the grant of leave. It is uncontroversial that the subject matter of the complaint is important to the applicant in particular, but also to the respondent; that while the alleged discrimination is one act, it has ongoing, and lifelong financial ramifications for the applicant, and perhaps his wife; that the principal basis on which the AHRC terminated the complaint was that it was lodged over 12 months after the alleged act; and that the matters raised have broader ramifications than the individual case. 27 As to the consideration of how thoroughly the AHRC dealt with the merits of the complaint, which might thoroughly answer the complaint or reflect that it is not reasonably arguable, in this case it is plain the merits of the complaint were not the subject of any detailed consideration. As the applicant submitted, the AHRC "scarcely" dealt with the merits of the complaint. The brief passage of the reasons, recited above at [17], is the extent of that consideration. I note that the AHRC relied upon s 21A which is also in issue as the respondent contends that it has no application in this case. Moreover, this matter was terminated at the stage of addressing the question of whether to conduct an inquiry. Any comment about the merits is also to be viewed in that context. 28 It is in that context that it is appropriate to consider the question of the undoubted delay. As noted above, the respondent relied heavily on this fact in opposing the grant of leave.
Delay 29 The applicant submitted that the starting point is that there is no time limit for the making of a complaint to the AHRC: Eliezer v University of Sydney [2015] FCA 1045; (2015) 239 FCR 381 at [60]. The question of delay in instituting a complaint is dealt with by the conferral of a discretion under s 46PH(l)(b) on the President to terminate a complaint on the ground that it was lodged more than 6 months after the alleged unlawful discrimination took place. The applicant submitted that any delay is at most one consideration to be taken into account by the Court in the exercise of the discretion to grant leave: James v WorkPower Inc at [38(4)] and that it would be an error to approach the grant of leave as involving an application for an extension of time. 30 The applicant submitted that the delay in this matter does not provide a persuasive basis upon which to refuse leave for four reasons. First, after the revocation the applicant took steps to contest the decision and pursued a series of internal review processes and through representations being made by the Association on his behalf. Those processes were not completed until 29 January 2016. This fact put the respondent on notice that the applicant took issue with the decision. Second, the applicant has suffered and continues to suffer significant economic loss as a direct consequence of the revocation. It was submitted that this is not a case in which allegedly discriminatory conduct occurred and its impact was limited to some immediate effect on a complainant. The fact that the loss experienced by the applicant and potentially his wife will endure for many years into the future gives rise to strong grounds for permitting the application to be made. Third, the respondent will suffer no discernible prejudice as a result of any delay in making the complaint to the AHRC. The respondent is a well-resourced emanation of the State of NSW which has the obvious capacity to defend the proceedings notwithstanding any delay in the complaint. Fourth, the applicant sought the assistance of solicitors promptly upon receiving notice of the revocation. The applicant was unaware of the possibility of bringing a discrimination claim until advice was obtained from counsel in around July 2017. The complaint was subsequently lodged in November 2017. The applicant submitted that in all those circumstances, the delay in lodging a complaint with the AHRC arose without fault on the part of the applicant and in the circumstances above, and where the matter raises questions of more general importance and ongoing significance outside the present case, any delay is not a factor which would cause leave to be refused. 31 On the other hand, the respondent contended that the length of the delay is extraordinary and the explanation for the whole period of the delay has been grossly deficient. The respondent submitted that the applicant's claim that he had not received legal advice on his potential claims in spite of agitating the issue with the NSW Police Force for more than 2 years is less than persuasive. It was submitted that these are major factors weighing against the grant of leave. The respondent submitted that the issue of delay should be the central focus of the application for leave on the basis that that was the principle basis on which the AHRC terminated the complaint. 32 The respondent submitted that the relevance of failing to make a complaint within the 12 month time limit prescribed in s 46PH(1)(b) is an important discretionary consideration in determining whether a matter should be allowed to proceed. It was submitted that the operation of ss 46PH(1)(b) and 46PO(3A) signals Parliament's intention that complaints must be made reasonably promptly and within a significantly lesser period than the usual 6 year limitation period under State limitation legislation which exists for most general law claims. The respondent referred to the relevant explanatory memorandum and submitted that the reduction of the time for lodging a complaint from 12 months to 6 months under s 46PH(1)(b), was designed to encourage the timely making and resolution of complaints to reduce the burden on potential respondents. The respondent submitted that the relevant alleged act of unlawful discrimination took place on 13 November 2014 and that the applicant's complaint was lodged on 21 November 2017, more than 3 years after the alleged act and more than 2 years after the 12 month time limit had passed. The respondent referred to, and relied on, the reasons of the President of the AHRC in terminating the complaint. These included that the applicant had assistance from the Association and lawyers from December 2013 to January 2015; there is no reason why his representatives could not have provided him with information about his rights under the DD Act or assist him in making a complaint to the AHRC; the applicant was not required to exhaust internal remedies before making a complaint to the AHRC; and he could have found information about the complaint process on the internet at no cost without the need for a solicitor or advocate to participate. It was submitted that the applicant has not adduced evidence addressing, or made submissions refuting, the Delegate's reasons for termination of his complaint. 33 The respondent submitted that a telling consideration is that the applicant received legal and industrial advice shortly after the unlawful discrimination is alleged to have taken place and that he did not know what legal claims he could have made in relation to the revocation until 19 December 2016 is "somewhat" implausible. It was submitted that even assuming that he did not receive any legal advice to make a complaint until 19 December 2016, upon receiving that advice including about "the time limitations applicable", he did not lodge a complaint with the AHRC until more than 11 months later on 21 November 2017. The respondent contended that there appears to be nothing to have prevented the applicant from making a complaint in a timely manner after he became aware of the time limit. In the respondent's submission, the AHRC complaint form is a straight forward document which can be completed quickly and without legal advice. It was submitted that, even though the applicant must have known from his conference with Mr Howell that he had to act with due haste, there is no explanation as to why he took so long to lodge the complaint. 34 The delay involved in bringing the application, in the circumstances of this case, is not such as to warrant the refusal of leave. 35 First, referring to the 12 months as a time limit, as the respondent repeatedly did, is a mischaracterisation of the provision and is apt to distract from the nature of the application for leave pursuant to s 46PO. While, no doubt, delay is a relevant factor, this is not an application for an extension of time. Delay is but one factor to be taken into account when considering an application pursuant to s 46PO, the significance of which will depend on the circumstances of the case. 36 Second, contrary to the respondent's contention, that the AHRC relied mainly on the issue of delay as the basis for terminating the complaint, does not elevate the significance of that factor in this decision. This is not an appeal from the decision of the AHRC to terminate the complaint. 37 Third, as can be seen from the uncontested timeline referred to above, from a very early time the applicant sought assistance with handling his complaint. The complaint was first dealt with through an internal system with the NSW Police Force. When that was unsuccessful, as the applicant properly accepted, there was a period in 2016 when the applicant was not doing anything to advance his case. The applicant then went on to obtain further legal advice. Therefore, prior and subsequent to that period of inaction in 2016 the applicant's case was in the hands of his advisers. That they did not provide advice, or did not do so in a timely fashion is regrettable. However, the respondent's submission that they could or should have advised differently or more promptly, should not simply be sheeted home to the applicant: see for example, Comcare v A'Hearn [1993] FCA 498; (1993) 45 FCR 441 at [13]. Further, the respondent's contention that the AHRC complaint form itself "doesn't require any technical requirements" and is "relatively straightforward" to lodge, presupposes that the applicant knew that he could make a claim at that time. As the applicant submitted, the degree of fault directly attributable to his conduct is small. I note that in so far as the respondent sought to criticise aspects of the applicant's evidence on the leave application, it was unchallenged. 38 Fourth, this application is in the context where the respondent accepted that it has not suffered any prejudice as a result of the delay.
Merit 39 The factual matters involved in the argument are in relatively small compass. The argument the applicant seeks to make involves, inter alia, a number of matters of statutory construction. The argument primarily is based on questions of law. The live questions raised by the application include the employment status of NSW police officers and whether the DD Act applies to NSW police officers (the respondent contended it did not), whether the revocation gives rise to unlawful discrimination (and the application of the relevant Award), and the interpretation of s 15(2)(a), (b) and (d), and s 21A of the DD Act (and their application in this case). 40 Necessarily the assessment of the merits at this stage is only conducted in a preliminary manner given the nature of the application, and it is well established that "it is important with judicial discretions concerning leave not to conflate the task of granting leave with the task of considering what is the correct conclusion on the facts and the law at final hearing": James v WorkPower Inc at [39]. Therefore, it is not appropriate at this stage to address the details of the merits of the arguments. 41 Detailed submissions, supported by authority, were advanced by both parties in relation to each of these topics. 42 The respondent's submission tended to suggest that the issues were straightforward; that, in effect, the answers to the issues are clear cut and can be resolved on the leave application. Apart from that approach being inconsistent with the nature of the application for leave, the nature of the argument on the leave application reflected that the issues are not necessarily as straightforward or obvious as suggested by the respondent. 43 The purpose of s 46PO(3A) is "to filter out plainly unmeritorious complaints where the arguments are fanciful, or so obviously misconceived that what is being suggested by the applicant should not be entertained by the Court - whether because they are not arguable as a matter of law, or because there is no rational factual sub-stratum for the allegations, or because there is no utility in the proceeding": James v WorkPower Inc at [43]. 44 In that context it cannot be said that the claims made by the applicant are fanciful or so obviously misconceived as to warrant leave being refused. Indeed, the nature and extent of the argument on the question of leave reflects that these are issues which have competing arguments. The questions raised in this matter are such that debate should be had at trial before they are determined. 45 The delay in this matter is not such as to render it inappropriate to grant leave. It has been accepted that the delay has not resulted in any prejudice to the respondent in the conduct of the case. Given the nature of the arguments as outlined above at paragraph [39], and the consideration of the relevant factors from James v WorkPower Inc above at [26], [27], this is an appropriate case to grant leave. I am satisfied there is a debate to be had in relation to the applicant's claims. Conclusion 46 In all the circumstances leave pursuant to s 46PO(3A)(a) is granted. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Abraham.
Ryan
Commissioner of Police, NSW Police Force