Wu v University of Western Sydney

REASONS FOR JUDGMENT (Revised from Transcript) 1 This is an application for an extension of time in which to seek leave to appeal from the decision of the primary judge refusing to extend the time within which the applicant (Mr Wu) could commence a proceeding under s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) as it stood in July 2004 (the Act). The respondent to the application heard by the primary judge (the University) is alleged to have discriminated against Mr Wu in the period between July 2002 and September 2003 on the basis of race. 2 Mr Wu filed his complaint with the Human Rights and Equal Opportunity Commission (the Commission) on 21 October 2003. The President of the Commission notified Mr Wu of the termination of Mr Wu's complaint on 8 July 2004. Mr Wu filed the application heard by the primary judge on 28 April 2011, some seven years out of time. 3 The application heard by the primary judge was brought by Mr Wu under s 46PO of the Act. That section relevantly provided: (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. 4 The primary judge's decision was given on 17 October 2011. Mr Wu filed the notice of appeal against her Honour's decision on 2 November 2011. The University says that Mr Wu had no right of appeal against her Honour's decision because it was interlocutory in character. 5 The usual test for determining whether an order is final or interlocutory is whether the order finally determines the rights of the parties in a cause pending between them. The question is answered by determining whether the legal effect of the judgment is final or not. If the legal effect of the judgment is final then it is a final order, but if the legal effect of the judgment is not final it is an interlocutory order: Re Luck (2003) 203 ALR 1 at para [4] per McHugh ACJ, Gummow and Heydon JJ. One point emphasised by Gibbs CJ in Carr v Finance Corporation (1981) 147 CLR 246 at 248 is that the question whether a judgment is final or interlocutory depends on its legal effect rather than its practical effect. 6 These principles have been applied in cases involving applications for extension of time brought under various statutory provisions: see, for example, Pham v Comcare [2003] FCAFC 166 and Vranic v Commissioner of Taxation (2002) 67 ALD 798, [2002] FCA 146. 7 In the present case, the primary judge's decision may have had the practical effect of precluding Mr Wu from pursuing any rights he may have enjoyed arising out of the University's alleged discriminatory conduct, but it did not legally determine them. I am satisfied that her Honour's order dismissing Mr Wu's application was interlocutory in nature. 8 Mr Wu was informed at a call-over held earlier this year that the University would challenge the competency of his appeal. As a result, he has now filed his application for an extension of time within which to seek leave to appeal. His application is opposed by the University. Among other things, the University argues that Mr Wu's proposed appeal has no prospects of success. 9 The fact that Mr Wu filed the notice of appeal rather than an application for leave to appeal is a matter which, if Mr Wu's proposed appeal had any prospect of success, would incline me to give him the leave he now seeks. But for the reasons which I shall now explain, I am satisfied that Mr Wu's proposed appeal has no prospects of success and that his application for an extension of the time within which to apply for leave to appeal against the orders of the primary judge should be dismissed. 10 As I have noted, the application before the primary judge was an application for an order allowing Mr Wu to bring a proceeding some seven years out of time. The background to the application was set out in detail by the primary judge: Wu v University of Western Sydney [2011] FCA 1143 at paras [2] to [25]. The key facts of most relevance to the application now before me are as follows. 11 On 21 October 2003, Mr Wu lodged his complaint with the Human Rights and Equal Opportunity Commission (HREOC) alleging discrimination under the Racial Discrimination Act 1975 (Cth). 12 On 8 July 2004 the President of HREOC terminated the complaint. At that time Mr Wu had 28 days to commence a proceeding in the Federal Court or the Federal Magistrates Court in accordance with the relevant provision of the Act as it then stood. He was advised of the time limit by HREOC at about this time. He did not commence a proceeding in this Court in respect of his complaint until 28 April 2011. 13 Mr Wu was tried in the District Court of New South Wales in August 2006 in relation to a fire which he lit in a classroom at the University on 25 November 2004. He was found not guilty of maliciously damaging property by reason of mental illness. There was evidence before the primary judge to show that at the time of the fire and for several months prior to it, Mr Wu was suffering from severe depression. However, there was other evidence referred to by her Honour to show that by June 2009 Mr Wu demonstrated "stable mental health". The primary judge also referred to evidence suggesting that by this time Mr Wu's consulting psychiatrist considered that he showed no symptoms of mental illness. 14 In considering Mr Wu's application, the primary judge took as a starting point the judgment of Cowdroy J in Ingram-Nader v Brinks Australia Pty Ltd (2006) 151 FCR 524 at paras [11]-[12]. I do not need to extract the relevant passages in his Honour's judgment, or the authorities referred to therein. It is sufficient to say that it is not suggested by Mr Wu that the statement of principles found in that judgment, as applied by the primary judge in this case, was incorrect in any relevant respect. 15 It is apparent that her Honour considered each of the factors identified by Cowdroy J that were relevant to the application before her. 16 It is also apparent that delay was a critical matter in her Honour's consideration of the application. That is understandable given the substantial period of time that had elapsed since the expiration of the 28 days provided for under s46PO(2) of the Act. 17 After setting out the factual background to his proposed proceeding in considerable detail, the primary judge stated that she was prepared to assume in Mr Wu's favour that he had an arguable case. She also stated that while she accepted the respondent suffered some prejudice as a result of the delay, she was not satisfied that such prejudice was substantial. 18 The primary judge found that in relation to the period prior to June 2009, Mr Wu may have had an explanation for the delay because the evidence indicated that during that period he had suffered from mental illness. However, her Honour considered that the delay that occurred between June 2009 and April 2011 was not adequately explained by Mr Wu. 19 The primary judge found that from at least 22 June 2009, Mr Wu enjoyed reasonable mental health and that he was by then aware of his right to make an application for an extension of time in relation to his complaint against the respondent. Her Honour also noted that although Mr Wu claimed that it took a long time for him to prepare a written account of his experiences, she did not accept that this constituted an adequate explanation for delay in making the application. Her Honour went on to say that even on Mr Wu's own evidence, the composition of the written account does not explain the additional 10-month delay between June 2010 and the filing of Mr Wu's application on 28 April 2011. As such, her Honour said that she did not accept that Mr Wu had provided an acceptable explanation in respect of this final period of delay in commencing proceedings in this Court. 20 Thus, having assumed in Mr Wu's favour that his proposed appeal was arguable, having found that Mr Wu's delay had not caused the respondent any significant prejudice, and having considered Mr Wu's explanation for his delay, her Honour concluded that Mr Wu should not be given the leave he sought. 21 Mr Wu made detailed submissions to me in writing and orally, and also relied upon a large volume of affidavit material. The notice of appeal which has been filed, upon which Mr Wu proposes to rely, runs for many pages. For the most part, the matters canvassed in the notice of appeal and other documents relied upon by Mr Wu concern the facts underlying the allegations of unlawful discrimination made by Mr Wu against the University. 22 One matter that Mr Wu's oral submissions focused upon is the suggestion that the primary judge ignored or gave insufficient weight to the fact that he suffered a mental illness and that he was hospitalised as a result of another complaint from which he was suffering at relevant times. 23 Mr Wu correctly emphasised the severe difficulties that people with a mental illness may confront in pursuing their legal rights. He also emphasised that it was the University and the unlawful discrimination he says it engaged in that triggered the mental illness that he says prevented him from bringing proceedings after the termination of his complaint. 24 I do not think Mr Wu's submissions give sufficient recognition to the primary judge's reasons in relation to this aspect of the matter. Her Honour gave consideration to the matter of Mr Wu's hospitalisation; it is a matter referred to in her Honour's reasons. 25 On the more significant matter of Mr Wu's mental illness, it is clear that her Honour not only took this matter into account but that she gave it very close attention. Her Honour appears to have accepted that Mr Wu had a reasonable explanation for not commencing proceedings up to June 2006. At the very least, her Honour was willing to proceed on the basis that Mr Wu had a reasonable explanation in respect of that period. The real difficulty for Mr Wu according to her Honour's analysis of the delay and the reasons for it, lay in his failure to take prompt action once the impediment to do so arising out of his mental illness ceased. 26 The matters to be considered in determining whether or not leave to appeal should be granted in relation to an interlocutory decision are well-known: see Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 per Sheppard, Burchett and Heerey JJ at 398-399. There are two matters that must ordinarily be considered. The first is whether the decision of the primary judge is attended by sufficient doubt to warrant its reconsideration by a Full Court. The second is whether substantial injustice would result if leave was refused if it be supposed that the decision of the primary judge is wrong. 27 An important factor to be considered in determining whether or not any extension of time should be granted in the present case is that the primary judge's decision involved the exercise of a discretion which could only be impugned on the basis of the well known principles set out in House v The King (1936) 55 CLR 499 per Dixon, Evatt and McTiernan JJ at 504-505. Mr Wu's submissions to me, both orally and in writing, do not identify any arguable grounds for finding that her Honour's decision was affected by error of any relevant kind. I am satisfied that the primary judge applied the correct legal test for the purpose of determining Mr Wu's application. I am not satisfied that Mr Wu has any prospect of showing that the primary judge's discretion miscarried. 28 Mr Wu's application for an extension of time in which to seek leave to appeal should be dismissed. 29 I am satisfied for reasons that I have stated that Mr Wu's notice of appeal filed on 2 November 2011 is incompetent. Section 25(2B)(aa) of the Federal Court of Australia Act 1976 (Cth) provides that a single judge may give summary judgment in a proceeding within the appellate jurisdiction. Section 31A enables the Court to give judgment for one party against another in relation to the whole or any part of a proceeding if satisfied that the moving party has no reasonable prospects of successfully prosecuting the proceedings. Section 4 defines "proceeding" so as to include an appeal. 30 In the present case I am satisfied that the notice of appeal filed by Mr Wu is incompetent and cannot succeed. Accordingly, I propose to dismiss Mr Wu's notice of appeal pursuant to s 31A. 31 Because the University has foreshadowed that it may seek costs on an indemnity basis, I shall not make any costs order just yet. But if no application for indemnity costs is made during the course of the next 48 hours then I will simply order that the applicant pay the respondent's costs. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas.