Alamzeb v Director-General Education Qld
[2003] FMCA 274
•4 July 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ALAMZEB v DIRECTOR-GENERAL EDUCATION QLD & ANOR | [2003] FMCA 274 |
| HUMAN RIGHTS – Alleged racial discrimination – application to extend time to bring application to Court – issues of discrimination determined by Queensland Industrial Court – whether Applicant has reasonable excuse for delay – whether Applicant has arguable case – extension of time application refused – application dismissed. Human Rights and Equal Opportunity Commission Act 1986, s.46PO(2) Alamzeb v Department of Education (2001) 167 Q919 364 |
| Applicant: | MUHAMMAD ALAMZEB |
| Respondent: | DIRECTOR-GENERAL EDUCATION QUEENSLAND and JOHN BATTAMS |
| File No: | BZ302 of 2002 |
| Delivered on: | 4 July 2003 |
| Delivered at: | Brisbane |
| Hearing date: | 13 September 2002 |
| Judgment of: | Baumann FM |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the Respondent: | Mr C J Murdoch |
| Solicitors for the Respondent: | Crown Law |
ORDERS
The Application for extension of time is refused.
The Application is dismissed.
There are no Orders as to costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BZ302 of 2003
| MUHAMMAD ALAMZEB |
Applicant
And
| DIRECTOR-GENERAL EDUCATION QUEENSLAND & JOHN BATTAMS |
Respondents
REASONS FOR JUDGMENT
Introduction
The Applicant in these proceedings is MUHAMMAD ALAMZEB (now known as ALAM Z RAO). On 21 June 2002 the Applicant made an application pursuant to the Human Rights and Equal Opportunity Commission Act 1986 (the HREOC Act) alleging unlawful discrimination against him under the Racial Discrimination Act 1975 (RDA).
The Respondents were initially the Director-General, Education Queensland, and a Mr John Battams. Proceedings against Mr Battams have been discontinued.
The Applicant sought an extension of time under s.46PO(2) of the HREOC Act in which to bring the Application. The Application for extension of time is opposed by the Respondent.
History
The Applicant commenced employment as a full-time District Relieving Teacher on probation with Education Queensland at the Isis District State High School on 10 May 1999. After a period where the probationary term was extended and subsequent to meetings between the Applicant and a Ms Collins (the Principal), Ms Collins met the Applicant on 13 April 2000 and informed him that she had decided to recommend to the Department that his appointment as a teacher be terminated on the basis that his performance was unsatisfactory.
The report of the Principal and a Response by the Applicant was considered by a bipartite Board of Review who unanimously decided to accept the Principal’s recommendation and recommended to the Director-General that the Applicant’s employment be terminated.
On the day after the Applicant was informed by a Union representative of the Board’s decision, he collapsed at home apparently with a stress related disorder.
On 22 June 2000 the Applicant made an Application for reinstatement to Queensland Industrial Relations Commission (QIRC). In his application the Applicant alleged his employer had treated him unfairly “by harassing, intimidating and discriminating”. The Applicant also claimed that his dismissal was also harsh, unjust and unreasonable.
Those proceedings resulted in a 16 day hearing before the QIRC resulting in an Order for compensation but no reinstatement (see Muhamad Alamzeb v. Department of Education (2001) 167 QGIG 364). I have read the Reasons for Judgment in that matter delivered on 26 July 2001 by Commissioner Bloomfield. I note his finding that the termination was “harsh unjust or unreasonable”.
The Applicant appealed against this decision to the Industrial Court of Queensland, the appeal being determined on 4 June 2002 (see Muhamad Alamzeb v Education Queensland (No 2) (2002) 170 Q919 190). The Court ordered that the Applicant’s application for reinstatement be dismissed and also vacated the compensation order as beyond the power of the Commission.
On or about 10 April 2001 the applicant had lodged a complaint with HREOC alleging racial discrimination, discrimination in employment by reason of age, religious belief and political opinion, and alleging he had been treated unfairly because of his
“ethnic background and accent – being male”.
When asked in his application what he wanted to achieve by making this complaint he said in the part:-
“I wish to see that Law and Justice prevails on this continent. Humans are treated like humans and offender faces the consequences. Appology (sic) is not the desired out. I want my job back”.
On 16 April 2002 (before the result of the Industrial Court of Queensland appeal was delivered) HREOC terminated the complaint, being satisfied it was “lacking in substance”. The letter of termination gave the Applicant notice that he must make an application, within 28 days of the date of issue of the Notice of Termination, to the Federal Court or the Federal Magistrates Court if he wishes to have a Court hear his allegations.
This meant an application filed should have been lodged by 14 May 2002 to comply with s.46 PO(2). It was no so filed. It was filed on
21 June 2002 – 38 days after the prescribed time limit. Relevantly it was also lodged after the result of the Applicant’s appeal to the Queensland Industrial Court was delivered.
Principles
This Court has considered on a number of occasions the principles to be applied when considering an application for extension of time under s.46 PO(2) (see for example Phillips v Australian Girls Choir & Anor (2001) FMCA 109; Low v Australian Tax Office (2000) FMC6; Lawnton v Lawson (2002) FMCA 68).
I adopt as an accurate statement of the principles, the summary enunciated by Brown FM in Lawton supra, paragraphs 29–33 as follows:-
“It is clear that the Court has a discretion pursuant to section 46PO(2) as to whether or not to grant the extension of time sought by the applicant. In Jackamarra v Krakouer (1998) 195 CLR 516 at 539-530 Kirby J. stated as follows:
‘…It is impossible to lay down fixed and binding rules for the exercise of discretions to enlarge time. Of necessity, each case must depend upon its own particular circumstances. … The starting point for the exercise of any power granted under legislation is the ascertainment of the terms of the grant and the consideration of the purposes for which the power has been afforded. Thus, if a rule requires that “special reasons” or “special circumstances” be shown as a precondition to a procedural indulgence, this will indicate a need to demonstrate circumstances out of the ordinary… Necessarily, the indulgence is not granted as of cause. It is for the parties seeking to persuade the decision maker to show that it should be granted. Such persuasion will usually depend upon the provision of an acceptable explanation of how the time default occurred. Neither a party nor its legal advisers may simply assume that a request for an extension of time will always be acceded to. Inherent in the grant of discretionary power is the assumption that it will sometimes be refused.’
In this particular instance the discretion granted by section 46PO(2) of the HREOC Act does not express any qualifications or set any criteria for the exercise of the discretion.
Accordingly, I bear in mind that the Act itself deals with matters pertaining to Human Rights and discrimination. Accordingly, there exist strong public policy reasons, in my view, that the Court should, if possible, entertain bona fide claims made pursuant to the Act and other related Acts, such as the SDA.”
In Lucic v Nolan (1982) 45 ALR 411 at 417 Fitzgerald J said as follows:
“It is neither necessary nor desirable, if indeed it would be possible to enumerate the great variety of possibly material circumstances to be considered on an application for an extension of time. Nor, in my opinion, is it possible to identify particular circumstances or classes of circumstances which must automatically be excluded from consideration. Each individual case should be dealt with individually, giving due weight to private decisions and what they reveal of judicial attitudes… Whilst there are obvious reasons why there should be no attempt at a full investigation of the merits of the application for review on an application for an extension of time, I would not exclude from consideration in an appropriate case some obvious strength or weakness in an applicants case or matters which might justify the refusal of relief, if the Court has a discretion to do so were a ground for relief is made out.”
In Phillips v Australian Girls Choir & Anor (2001) FMCA 109, Federal Magistrate McInnis provided seven criteria to be considered in determining whether it was appropriate or not to grant an extension of time pursuant to section 46PO(2) of the HREOC Act. These criteria can be summarised as follows:
1)There is no onus of proof upon an applicant for an extension of time through 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.
2)It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained. It is not a precondition 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 precondition.
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.
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.
5)The mere absence of prejudice is not enough to justify the grant of an extension.
6)The merits of the substantial applicant are properly to be taken into account in considering whether an extension of time should be granted.
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.
Submissions by applicant
The applicant, who represented himself in these proceedings as he had in the proceedings before the Industrial Commission and Industrial Court, relied upon an Affidavit filed 6 September 2002. The Applicant appeared with leave, by telephone from his home in Bundaberg. He also provided what he described as “partial” written submissions in Reply filed on 28 October 2002. Even though the submissions were delivered considerably out of time, I have carefully read and considered the submissions, the effect of which were:-
a)He could not lodge an appeal within 28 days due to health problems which he described as “under treatment for depression and heart”. Despite my clear instruction and direction to him to provide some medical evidence, he purported to rely on two certificates annexed to his affidavit of 6 September 2002 being:-
1.a certificate by Dr Bontchev, the Applicant’s General Practitioner, directed to Centerlink dated 4 September 2002, indicating the Applicant is unable to work for 12-24 months since 7 September 2002; and
2.a certificate by the same Doctor stating the Applicant was unfit for work due to “1HD/POST M1: from 15 May 2002 to 15 June 2002.
The respondent objected to the evidence as hearsay. I can attach little weight to the evidence in my view in any event.
b)Further the Applicant alleges (without corroboration) that he had:-
“Angioplasty in the beginning of 2002, admitted for chest pain in QEII Hospital in June 2002, and is still under treatment for depression and heart”.
c)His personal circumstances which he describes in the Submission as:-
“including ethnicity, health, and language disability (limited command of English)” explains the short delay.
He relied upon Vel v Human Rights and Equal Opportunity Commission (1997) 47 ALD 219 at 226-8 per Branson J).
d)A dismissal of the Application would severely prejudice the Applicant and would amount to:
“condoning breach of law and of any powerful employer like State Executive can get away with wrong doings”.
e)The prospects of success in the application need not always be taken into account in determining whether to extend time and the previous history and decisions of the State Court and Commission are effectively irrelevant and he says (without any evidence) not yet concluded. In his submissions he invited the Court to adjourn these current proceedings if the “unrelated proceeding is to be considered.”
f)In response, it seems, to the additional submissions of the Respondent relying on s.6A (2) of the RDA, he says:
1.After dismissal in June 2000 he had 2 options namely –
– to make a reinstatement application under s.74 of Industrial Relations Act 1991 (Qld); and then he –
– may lodge a complaint with the Queensland Anti-Discrimination Commission;
(see ss.153 and 154 of the Anti-Discrimination Act 1991 (Qld)
2.He choose to lodge a complaint with HREOC instead of the Queensland Anti-Discrimination Commission.
(g)He also says that not all claims in the complaint with HREOC were dealt with by the QIRC, in particular he says that –
“claims of intimidation/bullying/victimisation under s26(2) of HREOA 1986 were neither raised nor determined/ concluded in QIRC. See documents faxed to Court on 16 September 2002.”
No documents “faxed to the Court” allegedly on 16 September 2002 are on the Court file or were before me at the hearing of this application on 17 September 2002.
In this regard, although I was not provided with a transcript of the 16 days of hearing before the QIRC, I did receive in submissions from the Respondent a copy of the Applicant’s submissions in writing to QIRC (being Exhibit 233 in those proceedings) and refers to incidents where the Applicant claims to have been “discriminated against, victimised and bullied by the supervisor”.
Respondent’s submissions
The Respondent’s submissions filed on 13 September 2002 and
24 September 2002 were not in reply to the Applicant’s submissions (as I had directed on 27 August 2002), but actually preceded the Applicant’s submissions. This arose because of the delay in filing submissions by the Applicant. The Respondent did not object to the Applicant filing submissions after they had done so, and have not sought leave to reply.
The effect of the Respondent’s submissions were as follows:-
a)The suggestion that the Applicant was suffering from stress and depression at the time when he ought to have filed his application in this court, is not supported by the admissible evidence. It is also inconsistent with the Applicant’s self-representation in proceedings in the Industrial Court of Queensland on 30 April and 1, 7, 8 and 9 May 2002.
b)The Applicant has rested on his rights in the Queensland Industrial Court and only when those proceedings failed did the Applicant then pursue his application to this Court.
c)The respondent would be prejudiced because of the long delay in perusing allegations of racial discrimination which covered a period from 1995 to 21 May 2001 (see Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 per McHugh J at 551 to 556).
d)The merits of the substantive application are properly to be taken into account in considering whether an extension of time should be granted and an analysis of the Applicant’s claim reveals it is bound to fail because of the following:-
1.Issue Estoppel – The Applicant’s claim of discrimination has been:
Tested in 2 Courts of record, the QIRC and the Industrial Court of Queensland. In its submissions the Respondent relied upon the observations of Dixon J (as he then was) in Blair v Curran (1939) 62 CLR 464 at Barwick CJ in Ramsay v Pigram (1968) 118 CLR 271 at 276 and Gibbs J in Administration of Papua New Guinea v Daera Guba (1973) 130 CLR 353 at 453 to support the submissions in these terms:-
“Therefore any matter that has been determined by the QIRC or the Industrial Court of Queensland cannot be raised in the proceedings before this Honourable Court, as the Applicant is estopped from adducing evidence or arguing contrary to those findings. The facts and issues that were in dispute before the QIRC and the Industrial Court of Queensland have been determined by a court of competent jurisdiction. The Applicant and Respondent are both bound by those findings and cannot challenge them.”
I accept the submissions as sound and consistent with authority.
2.Matters in the Applicant’s claim that have been determined:
In a very carefully prepared submission at paragraphs 26-67, the Respondent deals with the majority of the numerous specific allegations raised by the Applicant in the QIRC and notes the finding of the Commissioner at page 369 that:-
“Mr Alamzeb argued his treatment by Ms Collins was discriminatory and that she harassed, intimidated and bullied him. Except for Mr Alamzeb’s allegations there is nothing in the 1737 pages of transcript nor the 234 exhibits, which would lend support whatsoever to those claims”.
The respondent submitted that the only new allegations raised and not determined by the QIRC were those referred to in paragraphs 73, 80.82, 87,88 and 89. I deal with these allegations below.
(e)The respondent cannot pursue the overwhelming majority of his claims under the RDA as he is precluded from doing so by s.6A(2) of that Act. The basis for this submission so that:-
1.Section 6A(2) of the RDA provides that:-
“ Where:
(a)the law of the State or Territory that furthers the objects of the convention deals with a matter dealt with by this Act; and
(b)a person has, whether before or after the commencement of this section, made a complaint, instituted a proceeding or taken any other action under that law in respect of an act or omission in respect of which the person would, but for this subsection have been entitled to make a complaint under the Human Rights and Equal Opportunity Commission Act 1986 alleging that the act or omission is unlawful under a provision of part 2 or parts 2A of this Act;
the person shall be deemed never to have been, and is not, entitled to make a complaint or institute a proceeding under the Human Rights and Equal Opportunity Commission Act 1986 alleging that the act or omission is unlawful under provision of part 2 or 2A of this Act and any proceedings pending under this Act at the commencement of this section in respect of such a complaint made before that commencement are, by force of this subsection terminated.”
2.Article 5 of the International Convention on the Elimination of all the Forms of Racial Discrimination provides at paragraph (e) that:-
In compliance with the fundamental obligations laid down in article 2 of this convention, state parties undertake to prohibit and eliminate racial discrimination in all its form and to guarantee the rights of everyone, without distinction as to race, colour, or national ethnic origin, to equality before the law, notably in the enjoyment of the following rights:
(e)economic, social and cultural rights in particular:
(i) “ the right to work, to free choice of employment, to just and favourable conditions of work, to protection against unemployment, to equal pay for equal work, to just and favourable remuneration”.
1.Under s74 of the Industrial Relations Act 1999 (Qld) that Applicant sought reinstatement on the basis he had been unfairly dismissed within the meaning of s73 of that Act. The applicant alleged discrimination, which was, if proved, an invalid reason for dismissal. Schedule 4 of the Industrial Relations Act 1999 (Qld) defines “discrimination” for purposes of the act to be discrimination “that would contravene the Anti-Discrimination Act 1991”. The respondent contends that the Industrial Relations Act 1999 (Qld) is therefore a law which empowers the QIRC and Qld Industrial Court to consider whether or not a person has been discriminated against by being terminated from his or her employment.
3.As a result the Industrial Relations Act 1999 (Qld) is a Law of the State “that furthers the objects of the convention” and the proceedings undertaken by the applicant for reinstatement therefore preclude the applicant from proceeding under the RDA in respect of any claims of discrimination put by him to the QIRC.
Conclusions
The applicant was given every opportunity to produce persuasive and admissible evidence of his medical inability to pursue his application in this Court within the time prescribed by s.46PO(2). The totality of the current evidence suggests that since his dismissal the applicant has been consumed by the ongoing litigation with Education Queensland. He claims to have some medical issues but the admissible evidence is not convincing. On the balance of probabilities I infer that the applicant elected not to pursue his application to this Court until after the decision of the Queensland Industrial Court was handed down. By that time, 28 days after termination by HREOC of this complaint, had expired. I am not satisfied with his explanation for the delay. Although the period between due lodgement and actual lodgement was only 38 days, I am not satisfied the reason offered by the Applicant was the only basis for the delay.
By choosing to lodge a complaint in the Federal jurisdiction with HREOC, section 154 of the Anti-Discrimination Act 1991 (Qld) is of no effect. That protection to persue alternative relief only applies to a –
“complaint with the Commission under the Act”.
The applicant does not depose in his affidavit to being misled about the effect of s.154.
As a result of the view I have taken about the Applicants failure to demonstrate reasonable excuse for the delay, the issues of the substance of the complaint requires further consideration.
I agreed with McInnis FM in Phillips supra, that a reasonable explanation is not a pre-condition to the success of the application for extension of time.
The complaints made at paragraphs 1–4 of his Notice to the Commission relate to allegations between 1995 to 1997. They alleged general discrimination on the basis of race and represented part of the history before the QIRC. The general and vague allegations were “overtaken” by the more specific incidents alleged with more particularly at paragraphs 5 to 89 of the Notice.
There is a degree of “overlapping” in the complaints. I am satisfied that the parties before me are bound by the findings of fact made by the QIRC on the basis of issue estoppel as articulated in the submissions of the Respondent.
The QIRC did not find discrimination but did make the following finding (at 381) that:-
“Having considered long and hard all the matters related to above, I find on balance that Mr Alamzeb’s termination was harsh, unjust and unreasonable. I do not think that it can be said that Mr Alainzeb was given a “fair go” overall – and this is not to belittle the sincere efforts of many of the respondent’s witnesses during early 2000. The fact is Mr Alamzeb effectively “slipped through the net” of support and supervision provided to probationary teachers as (to continue the analogy) a “safety net” to ensure minimum standards, for the first nine months of this probation. Why this happened is unclear…”.
The applicant says why it happened was discrimination on the basis of his race.
The Queensland Industrial Court was somewhat damning in its summary where the President said (at 194) that:-
“this is not a case of an overseas educated teacher experiencing difficultly in adjusting to Queensland traditions of pedagogy. It is a case of an incompetent and disruptive teacher unwilling to learn and wholly blanketed as to his feelings. He could not function effectively in a school. A working relationship of employer and employee could not be established between Mr Alamzeb and Education Queensland. Each of reinstatement and re-employment was unpractical.”
I am not satisfied that the Applicant has an arguable case on the matters dealt with and determined in the QIRC and reconsidered on appeal by the Queensland Industrial Court.
I have considered whether the allegations at paragraphs 73, 80, 82, 87, 88 and 89 of the complaint raise new matters capable of sustaining an arguable case.
These allegations may be summarised as follows:-
Para 73 – Respondent neglected duty of care due to hatred.
Para 80 – Victimisation of the whole family for exercising right to legal proceedings.
Para 82 – Treated less favourably by not commending. Recommendation of his treating doctor which she (Ms Collins) would do in the case of a teacher of her own race or religion.
Para 87 – Applicant was treated less favourably as a result of his ethnicity by not offering him work as supply teacher.
Para 88 – The Applicant was not offered the opportunity to apply for advertised temporary teaching positions in his field of expertise, as a result of the Respondent’s racial hatred.
Para 89 – Victimising his partner by depriving her of the opportunity to work to earn a living.
There is insufficient evidence offered to establish some arguable case on these allegations where generally the foundation arises from many of the other allegations, which have been dealt with previously.
I conclude that the Applicant’s application does not disclose an arguable case;
I think the appropriate course is decline to extend the time to being the application and in consequence to dismiss the application.
I am not required to specifically consider if the current application should have been terminated by reason of s.6A(2) of the RDA. Certainly it seems arguable that the Industrial Relations Act 1999 (Qld) which has one object “to support economic property and social justice by preventing and eliminating discrimination in employment”, could be constituted as a law of the State “that furthers the objects of the Convention”. The decision of Mansfield J in Elekwachi v HREOC (1997) 149 ALR 557 provides a history of s.6A which and was seen by the Government at the time as a solution to the decision of the High Court in Viskauskas v Niland (1983) 153 CLR 280 where the Court concluded that s.19 of the Anti-Discrimination Act 1977 (NSW) was inconsistent with s.13 of the Racial Discrimination Act 1975 such that a complaint under the New South Wales Act was therefore incompetent.
Because of the view I have taken above, it is not for the present purpose necessary to explore that question, and I refrain from doing so.
Costs
The respondent seeks an order for costs. Although there has been a long history of litigation between the parties, I agree with the observation of Driver FM in Lau v ATO supra, that
“the Court should be slow to award costs at an early stage of human rights proceedings.”
By disposing of this matter now at this early stage the respondent is able to avoid the expenses of a further full hearing. Whilst the respondent may well say the Application for extension of time was always doomed to fail I do not think that was the case.
I do not think this is a case where it is appropriate to make an order for costs.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Baumann FM
Associate:
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