Tang v AHG Services

REASONS FOR JUDGMENT 1 This is application for an extension of time to make an application to this Court in respect of an allegation of unlawful discrimination. Section 46PO of the Australian Human Rights Commission Act 1986 (Cth) (the Act) provides that if a complaint to the Human Rights Commission (the Commission) has been terminated, and notice has been given in relation to the termination, any person who was an affected person in relation to the complaint may make an application to this Court or the Federal Magistrates Court alleging unlawful discrimination by one or more of the respondents to the terminated complaint. 2 Section 46PO(2) provides that the application must be made within 60 days after the date of issue of the notice of termination under s 46PH(2), or within such further time as the Court concerned allows. The latter part of s 46PO(2) makes plain, and it is accepted by the respondents to this application, that this Court has the power to permit an application to be made after the expiry of the 60-day period otherwise specified. 3 In this case, the basic facts relating to the application for an extension of time - in contrast to the facts underlying the allegation of unlawful discrimination - are not in dispute. The applicant filed a complaint against the respondents alleging sexual harassment in the provision of goods and services with the Commission on 14 January 2011. After a conciliation conference yielded no resolution, the Commission issued a notice confirming that conciliation of the complaint had been unsuccessful and notifying the parties (as required by s 46PH(2)) that the complaint had been terminated under s 46PH(1)(i) on the basis that there was no reasonable prospect of its being settled by conciliation. 4 That notice, which is in evidence before me, is dated 28 July 2011. The 60-day period referred to in s 46PO(2) accordingly would have expired on 26 September 2011. The applicant filed her application to this Court on 13 October 2011, some 17 days late. 5 There is before me on the application a brief affidavit from the applicant of 6 December 2011 in which she deposes to the following facts: (1) The applicant speaks very little English and finds it difficult to follow proceedings in English clearly. (2) The applicant was not represented during the conciliation conference before the Commission and was not clear about what her legal entitlements were. (3) It took some time for the applicant to receive the letter from the Commission dated 28 July 2011 (although I note that the date on which she actually received the letter is not specified). (4) It took a further extended period of time for the applicant to have the consequences of the letter explained to her, and for her to understand that she had further legal avenues to pursue and that these would require her to seek legal representation. Again, the affidavit does not provide any detail of what steps were taken after receipt of the letter to have its consequences explained. (5) The applicant then had a number of interviews with her newly appointed lawyer, Mr Huynh, who has appeared on this application. According to the applicant, it was "some time before [she] was able to fully brief Mr Huynh, and also to make a decision to pursue these proceedings, notwithstanding that [she found] the matters involved to be psychologically traumatic." 6 That is the full extent of the applicant's evidence in support of the application. 7 There are also before me two affidavits filed by the first respondent in relation to the application. The first is an affidavit of Peter Lim, an assistant sales manager at the first respondent. It deposes to the fact that the applicant made a complaint to Mr Lim about the conduct of the second respondent on 11 January 2011. Mr Lim did not witness the alleged conduct which was the subject of the complaint; however, he did receive a telephone call on or about the following day from a person who identified himself as the applicant's husband. According to Mr Lim, although this person had a Vietnamese accent, he spoke English very well. 8 The second affidavit is that of Amrita Sen, the human resources relationship manager of the first respondent. This affidavit also refers to the fact that, on 11 January 2011, the applicant was at the first respondent's premises and asked to see the manager. Ms Sen states that, in March 2011, she attended a meeting with an employee of the first respondent who was present on the day in question and, while he did not witness the alleged incident, saw the applicant pointing and shouting at the second respondent. Ms Sen also gives evidence of the unsuccessful attempts she made earlier this month to contact the employee, who no longer works for the first respondent. 9 As all the submissions filed on behalf of the parties disclose, the question whether an extension of time should be granted involves the consideration of at least three primary matters: first, the reason for the delay; second, any prejudice occasioned to the respondents by reason of the delay; and third, whether the applicant has an arguable case: see Bahonko v Nurses Board of Victoria (No 4) (2007) 97 ALD 721; [2007] FCA 1449. 10 In respect of the third of these relevant considerations, Mr Huynh for the applicant points to Mr Lim's affidavit in particular, at least as evidence of the fact that something happened on 11 January 2011 which prompted a complaint by the applicant to the management of the first respondent. In common with many of these types of matters, at this interlocutory stage it is difficult to assess the merits of the applicant's case. Accordingly, I do not propose to do other than note that, although there is no doubt that something occurred on 11 January 2011 which caused the applicant to make a complaint to the management of the first respondent, both respondents dispute the substance of the conduct alleged by the applicant to have given rise to that complaint. 11 In respect of the second consideration, I am not persuaded on the evidence that any material prejudice to the respondents would be caused by the granting of an extension of time. Although it is true that a relevant employee of the first respondent has now left the first respondent's employment, that fact is unconnected with the delay by the applicant in bringing this proceeding. 12 That said, in respect of the first relevant consideration identified above, there is scant evidence of the reasons the applicant did not make the present application within the 60-day limit prescribed by the Act. In particular, as noted in the first respondent's submissions, the applicant's evidence does not provide any details of her claimed lack of knowledge of her legal rights, or of her attempts to have these rights explained to her. The difficulty this presents is apparent when consideration is given to the fact that the applicant was plainly aware, by some means or another, of her capacity to make a complaint to the Commission, as she did on 14 January 2011. As such, the applicant was sufficiently able to exercise her right not only to make a complaint to the management of the first respondent on the day in question, but also within three days to file a complaint form with the Commission. In these circumstances, it is difficult to give any real weight to the applicant's evidence of her lack of awareness of her legal entitlements in the absence of any detail as to the reasons for this lack and the steps taken to remedy it. 13 Similarly, as the first respondent has submitted, the applicant has not provided any details of her alleged discussions with her legal advisors, the dates on which these discussions took place, the nature of her instructions, or the advice with which she was provided. For example, the affidavit refers to the fact that the applicant had a number of interviews with Mr Huynh, but does not provide the dates of these interviews. Nor does it record when he first advised the applicant of the 60-day time limit applicable to the bringing of a proceeding in this Court or of the consequences of making an application outside that time limit. Mr Huynh has appeared today, but has not himself put on affidavit evidence in respect of any of these matters. 14 Ultimately, while I have a power to extend the time for the making of an application to this Court, there must be some material sufficient to persuade me that the discretion to do so should be exercised in the applicant's favour. Although the delay in this case is not particularly long, it is also not a short delay, being (as noted) in the order of 17 days. Given the 60-day period which is available, and in all of the circumstances to which I have referred, I am simply not persuaded on the basis of the material and submissions before me that the discretion should be so exercised. Accordingly, both the application for an extension of time and the substantive application filed on 13 October 2011 should be dismissed. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.