Amponsem v Laundy (Exhibition) Pty Ltd
[2013] FCCA 1982
•29 November 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AMPONSEM v LAUNDY (EXHIBITION) PTY LTD & ANOR | [2013] FCCA 1982 |
| HUMAN RIGHTS – Racial discrimination – alleged offensive act done on basis of race/colour of complainant. PRACTICE & PROCEDURE – Extension of time required to commence proceedings pursuant to s.46PO of Australian Human Rights Commission Act 1986 (Cth) – relevant principles – circumstances of delay do not warrant the grant of an extension of time – application refused. |
| Racial Discrimination Act 1975 (Cth), ss.9, 15, 18A, 18C Federal Magistrates Court Rules 2001 (Cth), r.41.02A |
| McLeod v Power (2003) 173 FLR 31 Ralkon Agricultural Co Pty Ltd v Aboriginal Development Commission (1982) 43 ALR 535 Sidhu v Raptis [2012] FMCA 338 Vaenuku v Terrigal Trojan Rugby Club Inc & Anor [2010] FMCA 701 |
| Applicant: | KOBINA AMPONSEM |
| First Respondent: | LAUNDY (EXHIBITION) PTY LTD |
| Second Respondent: | GEORGE POULOS |
| File Number: | SYG 1545 of 2012 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 14 March 2013 |
| Delivered at: | Sydney |
| Delivered on: | 29 November 2013 |
REPRESENTATION
| The Applicant: | The Applicant appeared in person |
| Counsel for the Respondents: | Mr B. Cross |
| Solicitor for the Respondents: | Mr P. Ryan of the Australian Hotels Association (NSW) |
ORDERS
The application for an extension of time filed on 16 July 2012 is refused.
The applicant is to pay the respondents’ costs and disbursements of and incidental to the application.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1545 of 2012
| KOBINA AMPONSEM |
Applicant
And
| LAUNDY (EXHIBITION) PTY LTD |
First Respondent
| GEORGE POULOS |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application (the “Application”) filed by the applicant, Kobina Amponsem, on 16 July 2012, alleging unlawful discrimination under s.46PO of the Australian Human Rights Commission Act 1986 (Cth) (the “AHRC Act”) by the respondents, Laundy (Exhibition) Pty Ltd and George Poulos. Specifically, the type of discrimination alleged is racial discrimination under the Racial Discrimination Act 1975 (Cth) (the “Racial Discrimination Act”). A notice of termination was issued by the Australian Human Rights Commission (the “AHRC”) on 28 March 2012 terminating the applicant’s complaint as there was no reasonable prospect of the matter being settled by conciliation in the AHRC.
The Application to this Court seeks the following orders:
1. An apology.
2. For George Poulos to admit that he said that.
3. Also for George Poulos to be removed from the position that he holds.
4. Mental & financial anguish which they have caused me.
There were no interlocutory orders sought in the application.
In the section E of the Application titled “Part E – Extension of time” the applicant indicated that an extension of time was required and the following statement was written therein:
First application was lost in post. I have attached the post office letter with this application.
Section 46PO(2) of the AHRC Act states, in respect of applications to the Federal Court and Federal Circuit Court:
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.”
The applicant’s Application was lodged 110 days after the issue of the notice of termination by the AHRC. The respondents, in their response filed on 23 November 2012, indicated that they opposed the granting of an extension of time for the filing of the Application. The matter was set down for hearing of the applicant’s application for an extension of time on 14 March 2013.
Background
The first respondent, Laundy (Exhibition) Ltd operates a number of hotels within Australia, including the North Wollongong Hotel (the “Hotel”), which it operated between 2002 and 2 July 2012. The applicant was employed at the North Wollongong Hotel as head chef between approximately March 2008 and March 2011, when his employment was terminated. The second respondent, George Poulos, is the regional executive of the Laundy Hotel Group. The relationship between the Laundy Hotel Group and Laundy (Exhibition) Pty Ltd is unclear, however, for the purposes of these proceedings they will be taken to be the same corporation (“Laundy”).
The applicant alleged in his complaint to the AHRC that he was discriminated against because of his race/colour. The alleged incident took place on 10 March 2011 and has been described by the applicant as:
…[The second respondent] held a staff meeting with the kitchen staff of the [Hotel] while [the applicant] was on suspension. [H]e asked the staff how they were treated by me. …[The second respondent] went on to say that this is Australia not Africa, and that there are laws. [The second respondent] than (sic) went on to say that because the white man came to Africa to treat them as slaves does not mean that [the applicant] can come here and treat white people in the same way, and that [the applicant] was doing this because of the way [the applicant] was treated in Africa.
The applicant stated that the alleged discrimination degraded him and has since made him feel uncomfortable in any working environment. He stated that he sought justice against the second respondent as the purported behaviour was disgusting, not only as an adult, but as a leader.
Application for Extension of Time
No written submissions were filed by either of the parties at the hearing of the application for the extension of time to file the application. It should be noted, given the applicant’s status as a self-represented litigant, no formal requirement was made for an application in a case to be filed and the application for the extension of time proceeded on the basis of what was noted in Section E of the Application.
The applicant sought to rely on his Application and the documents attached to it.
The respondents filed and issued a notice to produce to the applicant seeking:
The Application in its original form, being the original of the document which was received by the Court by facsimile to commence these proceedings. …
The respondents also read two affidavits in support, namely:
a)The Affidavit of Phillip John Ryan sworn 6 March 2013 (the “Ryan Affidavit”); and
b)The Affidavit of George John Poulos sworn 23 November 2012 (paragraphs 3, 21 and 22) (the “Poulos Affidavit”).
There was one exhibit tendered during the hearing, Exhibit “A” which is the Notice of Termination of the AHRC in respect of the applicant’s claim that was located in the correspondence folder of Federal Circuit Court Proceedings SYG261/2012: Amponsem v Laundy (Exhibition) Pty Ltd. Those proceedings were commenced in the Court’s jurisdiction under the Fair Work Act 2009 (Cth) and are similarly related to the applicant’s employment at the Hotel.
Cross-examination of Kobina Amponsem
Mr Amponsem gave evidence in respect of the late filing of the Application. Broadly put, his evidence was that he had attempted to file by express post the Application, but had heard nothing back from the Court. When he called the Court for further information he was informed that nothing had been received and advised that he should call Australia Post to get a letter verifying this. He obtained that letter then re-submitted his application for filing out of time.
Mr Cross, in broad summary, put to Mr Amponsem that he in fact had not filed the Application within time and had, instead, sent just the Notice of Termination from the AHRC (Exhibit “A”), which was located in the correspondence folder of the Fair Work Proceedings. Mr Cross put to Mr Amponsem that he, with the assistance of his wife, then filled out and filed another application out of time. Mr Cross drew specific reference to Part E of the form itself where Mr Amponsem marked the box to indicate an extension of time was required, but had dated the document 20 May 2013 which was still within the 60 day period where an application could be filed.
It is unnecessary to address Mr Amponsem’s cross-examination in any more depth. Further consideration will be given to his evidence and any reference to the transcript of the cross-examination will be noted with a page reference.
Applicant’s Submissions
Mr Amponsem submits that the respondent alleges he filed the Application out of time, but that is not actually what occurred. As Mr Amponsem does not fully understand how the court system works he submitted the application and was subsequently waiting for a response from the Court. He did not hear anything back and contacted the Court’s Registry about the lodging of the application. The Registry advised him to call Australia Post to get a letter to verify that there was an attempt to file the document by post on the first occasion then re-file another application with the Court, which is what he did. Mr Amponsem argues that he fills in forms, including the Application, with the assistance of his wife. He contends this is the truth in respect of what occurred leading to the late filing of the Application.
Respondent’s Submissions
Mr Cross, appearing on behalf of the respondents, contends that what is before the Court is an application that was filed 50 days out of time. He notes that the proceedings lodged by Mr Amponsem against the first respondent in the Fair Work jurisdiction were lodged nine days out of time. Even if the Court accepts all of the evidence given by Mr Amponsem there is still a three week delay from the receipt of the letter from Australia Post before the filing of the Application on 16 July 2012.
Mr Cross referred the Court to the principles established in Vaenuku v Terrigal Trojan Rugby Club Inc & Anor [2010] FMCA 701 per Cameron FM (as he then was). He submits there are the three principles particularly applicable in respect of these proceedings, namely;
a)First, whether there is an acceptable explanation for the delay which has, as a sub-group, whether the respondents are entitled to regard the matter as finalised;
b)Secondly, prejudice to the respondents; and
c)Thirdly, the merits of the application.
In respect of whether an acceptable explanation is forthcoming, Mr Amponsem’s argument is that two applications were filed, but the first was lost in the ether. Mr Cross contends that Mr Amponsem is not the ordinary self-represented litigant. It is not his first case against the respondents. He has completed, or someone has completed on his behalf, and signed two different applications. He understands the requirements, time limits imposed on him and what the AHRC told him he had to do in order to commence proceedings in this Court. Mr Cross submits that it appears and would be reasonably open for the Court to find that there was only one letter sent by Mr Amponsem.
Mr Cross submits that what the respondents have ascertained through review of both proceedings involving Mr Amponsem before this Court is that there is correspondence received in the Fair Work proceedings (Exhibit “A”) that accords exactly with the particular tracking number identified in the Ryan Affidavit at paragraph 9. It is accepted by Mr Amponsem that number is the correct number and that is the number recorded on the document that was located in the correspondence folder of the fair work proceedings. It is the respondents’ submission that it is abundantly clear what the Court received then was a very limited document.
In respect of the form of the document that Mr Cross alleges was the document sent in by Mr Amponsem, despite the Court not being a court of strict pleadings, r.41.02A of the Federal Magistrates Court Rules 2001 (Cth) (now the Federal Circuit Court Rules 2001 (Cth)) states:
41.02A Form of Application
1. An application must be in accordance with the approved form.
…
Mr Cross contends the word “must” has clearly been chosen. This rule has been in place since 2007 and it is something the Court has turned its attention to, being the need to comply with particular requirements of applications.
Mr Cross argues that the Court should not accept Mr Amponsem’s explanations in respect of the first attempted application. This is argued primarily on the basis that until the date of this hearing what was presented was a backdated application that fell, quite clearly, at its first hurdle in paragraph 14 of that Application (Part E – Extension of time). Mr Cross contends that one only had to see the demeanour of the witness in the box during cross-examination when he agreed that he had provided his wife instructions on how to complete the form. The he saw that, allegedly, on 20 May 1013 he had instructed “Yes” to being out of time. Mr Amponsem then attempted to explain it thereafter and to deny a backdating of the Application, which Mr Cross submits was without substance or credit. What is certain is that the respondents were not served or put on notice until 16 July 2012. They were entitled to consider the proceedings as finalised.
In respect of any prejudice to the respondents Mr Cross submits it is a very clear and neat point. They only seek to rely on three paragraphs within the Poulos Affidavit. The second respondent still retains a position of employment with the first respondent. The first respondent ceased operating the Hotel on 2 July 2012 when its ownership was transferred to another corporation. Further, it will be extremely difficult to call the people who were alleged to have attended the meeting where the purported discrimination occurred. Two of those people have put in affidavits for the applicant, a number have resigned, even from the employment of the transferor employer after 2 July 2012. The respondents are now put in the very difficult position of defending allegations put against them in that there were 10 or 11 people at the meeting of whom only one is still employed (the second respondent). Mr Cross submits that, consequently, there is prejudice to the respondents. It is often said in cases of this nature there would be no prejudice to a respondent, but in these proceedings there clearly is as a result of the unique circumstances and sale of the North Wollongong Hotel by Laundy.
Mr Cross submits that the key point for the Court to consider is the merits of the Application and, in particular, Mr Amponsem’s claim noted at [7] above. It is disputed that the alleged statement was made by Mr Poulos. Notwithstanding, there are a number of significant factors in whether this purported statement would amount to discrimination under the Racial Discrimination Act. First, Mr Amponsem wasn’t even at the meeting where the alleged statement took place as he had been suspended from work. Mr Amponsem stated that hearing the alleged statement degraded him, but Mr Poulos never told him that statement was made so it is unclear how Mr Amponsem “heard” the statement.
Secondly, Mr Cross submits that on the respondents’ case Mr Amponsem was not even employed at the time the alleged statement was made. Insofar as Mr Amponsem tries to agitate employment provisions under s.18A of the Racial Discrimination Act that is not the case. Further, on any version of the events, the allegation is not that the termination of Mr Amponsem’s employment arose from the alleged statement or any other racial discrimination issues. The termination related to alleged misconduct by Mr Amponsem, which is the subject of the Fair Work Proceedings.
Thirdly, Mr Cross contends that it will be the respondents’ argument that where the statement alleged to have been made by Mr Poulos was purported to have been made was not made in a public place, in any case. Where it was alleged to have occurred was in the upstairs bar of the hotel. The respondents contend there is evidence that the area was closed off to the public and other evidence that people could have wandered in, but it wasn’t in public.
Mr Cross then refers the Court to the decision of his Honour Brown FM (as he then was) in McLeod v Power (2003) 173 FLR 31. His Honour discusses the parameters of the Racial Discrimination Act at [39] – [42]. At [41] his Honour stated:
41. In the second reading speech of the Racial Hatred Bill before the House of Representatives on 15 November 1994, the then Attorney-General, Mr Lavarch said as follows:
“The Racial Hatred Bill is about the protection of groups and individuals from threats of violence and the incitement of racial hatred, which inevitably leads to violence…The bill is intended to close a gap in the legal protection available for victims of extreme racist behaviour. No Australian should live in fear because of his or her race, colour or national or ethnic origin…
The bill requires an objective test to be applied by the commission so that community standards to behaviour rather than the subjective views of the complainant are taken into account.”
Mr Cross contends that in the current proceedings there is no way what was alleged to have been said by Mr Poulos would fall into these parameters.
Mr Cross then referred the Court to [42] of McLeod (supra) where Brown FM continued:
42. In the explanatory memorandum to the Bill was written the following:
“The Bill maintains a balance between the right to free speech and the protection of individuals and groups from harassment and fear because of their race, colour or national or ethnic origin. The Bill is intended to prevent people from seriously undermining tolerance within society by inciting racial hatred or threatening violence against individuals or groups because of their race, colour or national or ethnic origin.”
Again, even if it is accepted that the alleged statement was made, that statement does not fall within the parameters of the Racial Discrimination Act.
Mr Cross contends that s.18C of the Racial Discrimination Act is put against the respondents, which has been addressed. Section 18A of the Racial Discrimination Act is also put against the respondents, which has also been addressed. The next section of the Racial Discrimination Act relied on by the applicant is s.27 which relates to, effectively, victimisation, but Mr Cross contends he cannot understand how this could be the case.
Mr Cross submits there are four necessary elements outlined by Brown FM in McLeod (supra) required to satisfy a breach of the Racial Discrimination Act. They are:
a)First, that the act was done because of race or ethnic origin. In this respect Mr Cross argues that in these proceedings the act was making a comment, which is disputed, but it is not an act contemplated by the Racial Discrimination Act as it does not incite racial hatred:
b)Second, that the act was reasonably likely to have the effects alleged. Mr Cross argues that Mr Amponsem’s case is that it degraded him and has made him feel uncomfortable in any work environment. The act could not have caused this as Mr Amponsem was never there to hear the statement. Mr Cross contends it was a very incorrect relaying of the statement that might have caused an effect. However, the test is whether a reasonable person would have felt any effect by what was said and this is far from satisfied in these proceedings;
c)Third, that the act was done otherwise than in private. Mr Cross contends that in these proceedings it was alleged to have occurred at a staff meeting in the upstairs bar. It would not have been seen to be in public and must fail on that limb; and
d)Fourth, if found to be a breach of the Racial Discrimination Act, whether the court would exercise any discretion. Mr Cross argues that if his submissions about the construction of the Racial Discrimination Act were wrong and this statement did fall within those categories it would still not attract any remedy or relief from the Court. Any effect alleged by the applicant is, at most, minor.
Mr Cross contends that the Court should not allow the extension of time unless it was proper to do so. There are very serious concerns with the explanation given by Mr Amponsem to this Court. Mr Cross argues there is significant prejudice to the respondents as they will have to call numerous people to give evidence who are no longer in the employ of the first respondent, in a case that clearly lacks merit. Mr Cross asks that the application for an extension of time be dismissed and costs awarded to the respondents. There has been preparation for a full hearing as was ordered by Smith FM and the amount sought is found at Annexure “E” to the Ryan Affidavit.
Applicant’s Submissions in Reply
Mr Amponsem contends there is no way the respondents can say that the alleged statement could not have an effect on a person, or not be harmful or degrading. The respondents have put far too lightly the effect of the alleged statement. Further, where the statement was alleged to have occurred was accessible by the public, despite it being a staff meeting. People could still walk up to that area. The staff members that the respondents allege that they will have difficulty locating all still work there and whether or not the first respondent operates the business is not relevant.
Mr Amponsem contends that despite him not being at the staff meeting an employee of the Hotel who was present came and told him straight after what had occurred. He argues that this behaviour is unacceptable.
Consideration
The application was filed on 16 July 2012, allocated to the docket of his Honour Smith FM and was given a First Court Date directions hearing on 17 August 2012. On that date his Honour set out a comprehensive set of orders for the further case management of the matter. Order 7 of Smith FM’s orders referred the matter to a registrar of this Court for mediation pursuant to Part 27 of the Federal Magistrates Court Rules 2001 (Cth) (as they then were) and that the mediation was to be completed before 21 December 2012. I note that subsequent to those initial orders a number of amendments sought by Mr Amponsem with consent of the respondents were made by his Honour. Mediation was conducted on 11 and 21 December 2012 and 30 January 2013. As of that date the matter remained unresolved, but the parties were continuing to make offers and counter-offers with a view to settlement of the matter. When the Court was notified that mediation had been unsuccessful the matter was listed for further directions on 20 February 2013. At that directions hearing the matter was listed for preliminary hearing of Mr Amponsem’s application for an extension of time under s.46PO(2) of the AHRC Act on 14 March 2013.
At the 14 March 2013 hearing Mr Amponsem gave sworn testimony setting out the circumstances in which he filed the application in these proceedings and was cross-examined on that evidence. Both parties then made oral submissions which are summarised above at [15] (Mr Amponsem’s submissions), [16]-[30] (the respondents’ submissions) and [31]-[32] (Mr Amponsem’s reply submissions).
On 28 March 2012 a delegate of the President of the AHRC sent a letter to Mr Amponsem containing the following information:
Your complaint against Laundy (Exhibition) Pty Ltd and Mr George Poulos
I am writing to advise you of my decision regarding your complaint against Laundy (Exhibition) Pty Ltd and Mr George Poulos alleging racial discrimination in employment and racial hatred under the Racial Discrimination Act (Cth) (RDA).
Your complaint has been considered under sections 9, 15, 18A and 18C of the RDA.
A copy of your complaint was provided to Laundy (Exhibition) Pty Ltd and Mr Poulos on 31 January 2012. The Australian Human Rights Commission (“the Commission”) received a response from Laundy (Exhibition) Pty Ltd in a letter dated 15 February 2012. I note that a copy of the response has been provided to you.
My decision
Under the Australian Human Rights Commission Act 1986 (Cth) (AHRCA), the President may decide to terminate a complaint if satisfied that there is no reasonable prospect of the matter being settled by conciliation.
I note that a conciliation conference took place on 29 February 2012. I understand that the complaint could not be resolved at that time or since, because the parties could not agree an appropriate terms of resolution.
I have therefore decided to terminate the complaint pursuant to section 46PH(1)(i) of the AHRCA on the ground that I am satisfied there is no reasonable prospects of the matter being settled by conciliation.
Possible further action
The AHRCA says that after a complaint is terminated the complainant may make an application to the Federal Court of Australia or the Federal [Circuit] Court alleging unlawful discrimination by one or more of the respondents to the terminated complaint.
Information about the Court process is available from the Court Registry.
If you apply to the Federal Court or the Federal [Circuit] Court you will need to attach the following documents to your application:
1 – This letter;
2 – The enclosed “notice of termination”; and
3 – The enclosed copy of your complaint
You must apply to the Federal Court of Australia or the Federal [Circuit] Court within sixty (60) days of the date of the notice of termination.
Consequently, to comply with the requirements of s.46PO(2) of the AHRC Act an application to this Court was required to be filed by the close of business on Monday 28 May 2012.
The basis of the claim advanced by Mr Amponsem was that he made an application to this Court by completing the standard approved court document on or about 20 May 2012, forwarded that document to the Court by express post and then waited for a reply from the Court. After an unspecified period during which he had not received a reply Mr Amponsem telephoned the Court’s Registry enquiring as to whether an application had been received. When informed that the Court had no record of any application Mr Amponsem enquired as to what steps he should take and was advised to contact Australia Post for confirmation in respect of delivery of the express posted envelope. The date of the enquiry to the Court’s Registry is not evident, but the letter from Australia Post confirms that Mr Amponsem made the enquiry on 13 June 2012 and forwarded him correspondence on 23 June 2012 providing details of the delivery. Mr Amponsem then forwarded a new application to the Court which is stamped as filed on 16 July 2012, but contains his signature dated 20 May 2012. A closer examination of the material before this Court and the sworn testimony of Mr Amponsem raises a number of unexplained inconsistencies with this overall proposition.
Mr Amponsem during cross-examination was asked a series of questions concerning the circumstances around the filing of the Application date stamped “Filed 16 July 2012”, but this series of questions and answers became very confused and Mr Cross acknowledged that he must yield and adopt a new approach. The following sequence of testimony occurred:
MR CROSS: Would you like to give his Honour an explanation as to how that could be?‑‑‑Actually, yes. Okay. So, when the first one was filed – I think, normally when you file, you wait for a response, like stamped and send to you in email and stuff. Okay. I waited for a couple of weeks, for whatever date it was, I was hearing anything. So I called the courts and I say “I’ve made an application but I haven’t heard anything”. So they put me on hold and went through and said “We still haven’t received it”. They said “How did you send it?” I said “I sent it through the post”. “We still haven’t received it”. So now I made a phone call to Australia Post and I say – I give them - I said “I’ve sent something through but it hasn’t been received”. So they went and did a check, “It has been delivered”. “Where was it delivered?” “To exactly where the address is”. Okay. So I call the registry back and I say “This is what has happened”. So I was instructed that “Speak to Australia Post. Let them confirm what they’ve said to you in a letter, re-apply and put explanation why you need that in the form and send it out again” and that’s why I did that. That’s the explanation for that.
MR CROSS: Okay. So, for his Honour to understand this, you completed a form and you put it in the post and you didn’t keep a copy of that document. Did you?‑‑‑It was in the post. No.
MR CROSS: The one you say you sent around 20 May 2012 ‑ ‑ ‑?‑‑‑Yes.
MR CROSS: Did you keep a copy of that?‑‑‑Did I keep a copy of it? No. I don’t think I did. No.
…
MR CROSS: And so what we have here is a reconstruction of what you say you executed in May 2012. Correct?‑‑‑The second – the one – the new one that I made. Yes. The new application after the first one gone missing. Yes.
(Transcript, pp.11-12)
The proposition being advanced by Mr Amponsem is that he forwarded an application to the Court on or about 20 May 2012 and this is consistent with a letter received by him from Australia dated 23 July 2012 which is attached to the (second) Application. What is not explained is the fate of that document and, in effect, whether it was an application in the proper form.
Before the Court is a photocopy of a diary kept in the Court’s Registry recording all express and registered post items received by the Court on a daily basis. On Friday 25 May 2012 there is an entry detailing the receipt on an express post item, consignment number 049467812092, the sender being “Kobina A.”, the contents being an envelope to the attention of the Federal Court of Australia, but it should be noted that in respect of general federal law matters in Sydney, the Federal Court and Federal Circuit Court have the same Registry. The Court was also made aware that there is another set of proceedings commenced by Mr Amponsem against Laundy in the Fair Work jurisdiction, being file number SYG 261 of 2012. Mr Amponsem confirmed that he had commenced those proceedings on 6 February 2012 regarding alleged underpayment of annual leave. In that exchange Mr Amponsem claimed that he was not familiar with the Court’s procedures, but in order to commence proceedings in the Court he was required to file an application as well as of the need to serve any documents filed by him on the other party. He also confirmed that he had served documents on the Australian Hotels Association on numerous occasions. That matter was in the docket of her Honour Judge Barnes, but is now in the docket of his Honour Judge Manousaridis.
That file was inspected by the respondents’ representatives and located in its correspondence folder was the Notice of Termination issued by the AHRC that is the subject of these proceedings. The copy before me (marked Exhibit “1”) contains no attachment indicating why that document was forwarded to the Court. I note that on the face of the document the file number of the Fair Work proceedings has been pencilled in and I infer that on the receipt of the document by the Court’s Registry with no apparent explanation, it was indentified as being associated with the Fair Work proceedings and consequently placed in the correspondence folder of the Fair Work proceedings, with no further action being taken. This is also consistent with Mr Amponsem’s evidence that he did not receive any reply from the Court’s Registry and the evidence of Australia Post that the express post envelope was delivered.
Under cross-examination Mr Amponsem was asked whether he had retained a copy of the Human Rights Application to this Court he claims to have filed on or about 20 May 2012. I note the following exchange:
MR CROSS: You say that you posted an application ‑ ‑ ‑?‑‑‑Yes.
MR CROSS: Shortly after 20 May 2012. Correct?‑‑‑Okay.
MR CROSS: Do you accept that?‑‑‑Yes.
MR CROSS: You’ve said on three occasions that you didn’t keep a copy of that application. Correct?‑‑‑Yes.
(Transcript p.12)
The Court has before it the Notice of Termination recovered from the correspondence folder of the Fair Work Proceedings. On examination of that document, it appears to be the original because the hand-written date inserted on the notice and Attachment “A” and the signature of J. Wall, delegate of the President are in a different coloured ink from the remainder of the document, whereas an inspection of the Notice of Termination attached to the application filed on 16 July 2012 reveals evidence of the document having been perforated by a 2-hole punch on the left hand margin on all three pages. This leads to the inference that the original was photocopied and forwarded by express post to the Registry and a copy was retained by Mr Amponsem in some system of filing and was used as an attachment to the Application filed on 16 July 2012.
The cross-examination then focused on the completion of the reconstructed or second Application which was received by the Court on 16 July 2012. The Application has been completed on the approved Human Rights Form available from the Court’s website. Amponsem claims that the form was completed by his wife, in his presence, and he did review the responses entered by her. Amponsem confirms that the signature appearing on p.4 of the application is his, however, the printing of his name and date of execution were written by his wife. Annexed to the application are an AHRC Notice of Termination with attachments, a letter from Australia Post and a copy of a three page facsimile transmission from Amponsem to “New Complaints” at the AHRC with the subject being “online complaint form”.
The completed document has been forwarded to the Court’s Registry by facsimile transmission and, in accordance with standard court practice, is reproduced on yellow A4 paper. On the other margin of the document is the Court’s facsimile notation stating that the document was received “2012-07-12 16:31 10434 RECFEDCOURTOFAUSE1/11”. The document is stamped “Filed/Presented” 16 July 2012 and with a court seal signed by a person with the authority of the Registrar of this Court on the same date.
Mr Amponsem acknowledges that the Application was reconstructed as a consequence of him being advised by the Court’s Registry that it had not received his previous application, purportedly posted to the Court on or after 20 May 2012. When cross-examined about the details of this reconstruction process and subsequent forwarding to the Court, Mr Amponsem was vague about details of the process and evasive in his responses. The approach taken by Amponsem is demonstrated by the following sequence of questions:
MR CROSS: And what I’m suggesting to you is this. What I’m suggesting to you is this. That you received this document, quite clearly, on or after 23 June 2012?‑‑‑I’m not going to tell you what I don’t remember and if you’re going to use that against me then you ….. But ‑ ‑ ‑
MR CROSS: Well, you annexed it to an application to this court. Do you have doubt as to its veracity?‑‑‑What I’m saying is what I don’t remember I’m not going to answer to it.
MR CROSS: Because, one, I’m not a lawyer so I’m not going to let you – what I don’t remember – what I do remember I will tell you. What I don’t, I will tell you I don’t remember.
MR CROSS: Do you remember this? The application, the original application you had before you, was filled out after you received the letter from Australia Post. Correct?‑‑‑I don’t remember that. Like I said to you earlier on, I don’t know whether it was for the – waiting for the letter to be attached to it or was after the letter was received.
MR CROSS: Sir, go to part 14 of your own application?‑‑‑Okay. Page 14?
MR CROSS: Page 3, part 14, do you need an extension of time?‑‑‑Okay. I’m here.
MR CROSS: Now that was completed at your instruction by your wife. Is that the case?‑‑‑The whole form was done by her. Yes.
MR CROSS: But you made sure – you’ve told us you made sure that everything she wrote was correct and you recall directing her to write that. Correct?‑‑‑Yes. And what she has written there is the truth.
MR CROSS: And you attached the letter of 23 June 2012. Correct?‑‑‑Yes.
MR CROSS: And that then assists you in understanding when you completed this document, doesn’t it?‑‑‑The date said 20 June. Yes. 20 May, I think. Yes.
MR CROSS: Well, look, to put 20 May 2012 on this document is absolutely false, isn’t it?‑‑‑I don’t think so.
MR CROSS: Okay. I will move on then. But there’s no doubt that this was a re-doing of your application. Correct? Because the first one was lost in the post?‑‑‑Yes. I re-do the application. Yes.
MR CROSS: And you backdated it?‑‑‑You – no.
MR CROSS: So, the fact that 20 May is written on your application, you say is not backdating it?‑‑‑What I’m telling you is I don’t know – I don’t remember, you know, what are you trying to – like, what day it was done and, like I say to you, ….. now what did it and decided on waiting for the letter to come, but if you try to say that was done out of the time or was falsified and stuff like that, that’s not true. I don’t see the need to do that. And there’s clarification that the letter was posted with the post office. So why ‑ ‑ ‑
(Transcript pp. 16-17)
Mr Cross then addressed the issue with Mr Amponsem as to what was filed by him as the original application. The document identified by Mr Ryan in his affidavit and is extracted above (tendered and marked Exhibit “A”) was shown to Mr Amponsem. The following sequence of questions occurred:
MR CROSS: If I can show you the file, and there is a large post-it note on the top of this document?‑‑‑Yes.
MR CROSS: Now, you can see that that is the Australian Human Rights Commission notice of determination in relation to your matter?‑‑‑Yes.
MR CROSS: Correct?‑‑‑Yes.
MR CROSS: It is the case, is it not, that the document that you sent to this court in or about May 2012 was only that document?‑‑‑For the application? No, I don’t think so.
MR CROSS: Now I want you to have a very detailed look at this document. I will leave the file open?‑‑‑Yes. Yes. Yes. Okay.
MR CROSS: Now I put the question to you again?‑‑‑Yes.
MR CROSS: The only document that you sent to this court in or about May 2012 regarding your allegation of race discrimination was that document. Is that the case?‑‑‑I don’t think so. I think, your Honour, there will be an application with it. No.
(Transcript p.18)
In the Ryan Affidavit Mr Ryan indicates that he is employed by the Australian Hotels Association (NSW) in the role of director, legal and industrial affairs. At [14] – [20] of the Ryan Affidavit, the following information is set out:
14. On 20 February 2012, following a directions hearing before the Court, directions were issued by Federal Magistrate Lloyd-Jones granted (sic) the Respondents access to inspect:
a. the Federal Magistrates Court register of express post/registered mail received; and
b. the correspondence file in matter SYG261/2012.
15. The parties in matter SYG261/2012 are the Applicant and the First Respondent. The Applicant is seeking payment of accrued unpaid leave, an alleged unpaid bonus, interest and court costs. The First Respondent alleges the Applicant breached his duty of fidelity and good faith resulting in loss and damage. The First Respondent seeks recovery of those damages by way of a cross claim.
16. On 22 February 2012, I attended the Registry of the Federal Magistrates Court of Australia and inspected the items referred to in paragraph 14 above. I was advised by persons working at the Registry that I was not allowed to make any copies of the items.
17. In relation to the Federal Magistrates Court register of express post/registered mail received, I observed that the register is in the form of a diary for 2012, with headings from left to right and information recorded under each of the headings. I observed on the page titled “Friday 25 May 2012” the following information (going from left to right across the page):
a. Under the heading “Courier” is the entry “Express”;
b. Under the heading “Consignment” is the entry “049467812092”;
c. Under the heading “Sender” is the entry “Kobina A”;
d. Under the heading “Contents” is the entry “Envelope”
e. Under the heading “Att” is the entry “FCA”.
18. I noted that the number listed under the heading “Consignment” matched the article identification number provided to me by the Applicant and the article identification number provided by Australia Post in documents produced under subpoena.
19. In relation to the correspondence file in matter SYG261/2012, I observed that all documents, in that file except for one, were either date stamped as having been received by the Court on a particular date, appeared to be received by facsimile on a particular date or had some other identifier indicating their date of existence generally and/or placement on the file. None of the dates matched 25 May 2012.
20. The one document that did no appear to have either a date received stamped or other marking that indentified the date of the receipt, appeared to be the original notice of termination issued by the Australian Human Rights Commission on 28 March 2012, and accompanying attachments referred to in the notice of termination. The document was folded through the middle of the page (left to right). The document appeared in the in between an affidavit and reply filed by the Applicant on 14 May 2012 and mediation documents relevant to proceedings SYG261/2012 dated in July 2012.
When this affidavit was raised in cross-examination and Mr Amponsem was asked whether any part of the document was incorrect, Mr Amponsem indicated he did not agree with paragraphs [19] and [20].
Acknowledging that Mr Amponsem is a self-represented litigant, the nature of the objection seems to be that those paragraphs are contrary to the proposal that he was attempting to advance.
Mr Cross, in his written submissions, refers the Court to the decision of his Honour Cameron FM (as he then was) in Vaenuku (supra) at [15] – [16] which sets out the authorities to be applied in exercising the Court’s discretion in respect of the granting of an extension of time for filing a human rights application. His Honour stated:
15. In Phillips v Australian Girls’ Choir [2001] FMCA 109 at [10], McInnis FM set out the principles to be applied in exercising the court’s discretion whether to grant an extension of time in a human rights application. The principles as summarised by his Honour were as follows:
1. There is no onus of proof upon an applicant for extension of time though 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. The “prescribed period” of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 550).
2. It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). It is not a pre-condition 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 pre-condition (Comcare v A’Hearn (1993) 45 FCR 441 and Dix v Client Compensation Tribunal (1993) 1 VR 297 at 302).
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. (See Doyle v Chief of Staff (1982) 42 ALR 283 at 287)
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. (See Doyle at p 287)
5. The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic at p 416)
6. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. (See Lucic at p 417)
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 (Wedesweiller v Cole (1983) 47 ALR 528).
16. In Ferrus v Qantas Airways Ltd at [19] and [20], Collier J quoted the judgment of McInnis FM in Phillips v Australian Girls’ Choir with approval and her Honour also agreed with Phipps FM’s distillation of those seven principles (in Drew v Bates [2005] FMCA 1221) into three matters, namely:
a) explanation for delay;
b) any prejudice to the respondent; and
c) whether the applicant has an arguable case.
The starting point is that Mr Amponsem is a self-represented litigant and, on a number of occasions during cross-examination and oral submissions, has stated that he has little understanding of the legal system and the procedures followed by this Court. However, I note that Mr Amponsem, by his own actions, has demonstrated that he is not totally unfamiliar with legal processes. His Fair Work Division Application (SYG261/2012), which was filed on 6 February 2012, was lodged on the correct court form and was accompanied by Form 5 – Small Claims under the Fair Work Act 2009, which was also lodged in the correct format. These forms were lodged with the appropriate fee in the form of a money order. In his cross-examination Mr Amponsem gave the following evidence:
MR CROSS: So it would be fair to say that you are familiar with the requirements of applications in this court. Correct?‑‑‑Yes and no. Yes.
MR CROSS: Well, how can it be yes and no?‑‑‑Do I know everything about the courts? No, I don’t.
MR CROSS: No, you don’t?‑‑‑Yes.
MR CROSS: But you are familiar that, to commence proceedings in this court, you are required to file an application?‑‑‑Yes.
MR CROSS: Okay. And you’re also familiar with the need to serve documents that you file on the representatives for Laundy (Exhibition), being the Australian Hotels Association. Correct?‑‑‑Sorry. Your question again?
MR CROSS: Sorry. You are familiar with the need to serve any documents that you file on the Australian Hotels Association?‑‑‑Yes. I do know. Yes.
MR CROSS: Because, as you know, they represent Laundy in the matters that you have. Correct?‑‑‑Yes.
MR CROSS: Okay. And I think you’ve served documents on the Australian Hotels Association on numerous occasions. Correct?‑‑‑Yes.
(Transcript pp. 5-6)
Before this matter was transferred to my docket, Mr Amponsem had made an application to his Honour Smith FM seeking amendments to the orders setting out the timetable for the preparation of the proceedings. These variations were in the form of draft consent orders executed by all the parties. The nature of these applications indicates a level of knowledge or familiarity with the procedural requirements of the Court.
In light of the information contained in the notification sent to Mr Amponsem letter from the AHRC dated 28 March 2012, under the sub-heading “Possible Further Action” which set out the avenues for appeal, together with the knowledge that this was not the first application filed by Mr Amponsem, who had filed a Fair Work small claims proceeding in this Court in February 2012 and the knowledge that he had undertaken a number of procedural steps that satisfied the practice rules of the court, it makes it difficult for Mr Amponsem to maintain a claim of ignorance of the Court’s requirements in respect of filing an application.
On the material before the Court it would appear the most likely explanation for the attempted filing of this set of proceedings was the mailing by express post to the Court’s registry of the AHRC’s Notice of Termination letter without an accompanying application or an explanatory note. Further, there is no material before the Court indicating that there had been any attempt at that time to pay filing fees. The presence of an explanatory note or filing fees would have alerted the Registry to the fact that Mr Amponsem was attempting to file an application, but in the absence of any such information, the document was indentified as being linked to the Fair Work – Small Claims application and was placed in the folder titled “Correspondence” in those proceedings.
I accept that Mr Amponsem, on his own initiative, contacted the Court’s registry as to why he had not received any reply from the Court in respect of his human right’s claim. That conversation triggered a number of steps, including an enquiry placed with Australia Post and the preparation of a claimed reconstructed application. This does, however, raise the issue of the completion of the extension of time application and the back-dating of the application to 20 May 2012. I believe this leads to the inference that Mr Amponsem was well aware that the reconstructed application was out of time and would require an application for an extension of time. If this form had been completed as at 20 May 2012, the response to Question 14 would have been no, however, it has been marked as yes and it was indicated on the form that the first application had been lost in the post. There is no evidence of the changing of the marking of the yes/no boxes at Question 14.
Mr Amponsem has not attempted to provide any evidence or submissions that he misunderstood the procedure for filing an application to the extent that he had developed the impression or understanding that the human rights claim could be added to the Fair Work – Small Claims Application. His course of behaviour indicates that he is aware his discrimination claim must be filed as a separate application. The material before the Court indicates that the Notice of Termination was forwarded to the Court’s Registry by express post with no accompanying explanatory document. Australia Post has confirmed the transmission of that document to the Court’s Registry and its receipt is recorded in the Court’s register of mail delivered. Mr Ryan’s inspection of the Fair Work – Small Claims proceeding file indicates its presence in the Correspondence folder of that file. This defeats any claim that the original application was lost.
The argument advanced by Mr Amponsem that the Application filed on 16 July 2012 was a reconstruction of the original application cannot be sustained. There is nothing before this Court to support an argument that the original application, allegedly signed on 20 May 2012, was ever prepared. The claim that the document filed on 16 July 2012 was a reconstruction of the original application cannot be sustained. The presence of the two hole punch marks in the Notice of Termination supports the view that no other document other than the Notice of Termination was copied and retained by Mr Amponsem. This leads to the inference that the application filed on 16 July 2012 was, in fact, the first and only application filed and was back dated.
In the words of Keely J in Ralkon Agricultural Co Pty Ltd v Aboriginal Development Commission (1982) 43 ALR 535 when considering whether to exercise a court’s discretion to extend time, his Honour stated at 550:
… It does not in terms place any onus of proof upon the applicant although plainly an application for an extension must be made and the court will not grant it unless it considers that it is proper to do so. It would clearly be wrong for the court to ignore the “prescribed period” and to grant extensions without cause but in my opinion it would also be wrong for the court to require an applicant to establish special circumstances in support of its application.
Accordingly, the focus needs to be directed to any prejudice that would be suffered by the respondents in defending the proceedings occasioned by the delay in filing and, in this respect, I refer to the written submissions made by Mr Cross and reproduced above at [22] – [25].
Adopting the approach detailed by his Honour Cameron FM (as he then was) in Vaenuku (supra) at [16] the final issue to be considered is “whether the applicant has an arguable case” (reproduced at [49] above). The Court is also referred to the decision of his Honour Brown FM in McLeod v Power (supra) with the relevant sections reproduced at [26] – [29] above.
The details of the complaint are set out in the online complaint form attached to the Application. On the second page of that email the following entries appear:
PART 3 – REASON FOR COMPLAINT: I have been discriminated against because of my race/colour.
DATE OF EVENTS BEING COMPLAINED ABOUT: Thursday 3 March 2011
DESCRIPTION OF THE EVENT: George [Poulos] held a staff meeting with the kitchen staff of the North Wollongong Hotel while I was on suspension (I was the head chef of the kitchen at the time). The meeting was held upstairs in the bar, he asked the staff how they were treated by me. One staff commented that she felt uncomfortable asking for a day off. George [Poulos] then went on to say that this is Australia not Africa, and that there are laws. George [Poulos] then went on to say that because the white man came to Africa to treat them as slaves does not mean that he can come here and treat white people the same way, and that I was doing this because the way I was treated in Africa.
PART 4 – LOSS OR HARM EXPERIENCED: It degraded me. To hear that after three years of working with George as my boss that this is how he felt about me and that how the staff I worked with and had great friendships with that this belittled me. This has now made me feel uncomfortable in any working environment as I feel this is how other bosses feel towards me.
In oral submissions by the parties it has become apparent that it is strongly disputed that the alleged statement by Mr Poulos was actually made. However, there are a number of significant factors to be considered as to whether this alleged statement would meet the threshold of the relevant tests in the Racial Discrimination Act. Mr Amponsem was not at the meeting because he was on suspension. Although not stated in the complaint, it must be assumed that someone present at the meeting conveyed this statement to Amponsem subsequent to the meeting. The meeting at which the alleged statement was made occurred on Thursday 10 March 2011, while the date of the filing of the online complaints form with the AHRC did not take place until Friday 20 January 2012.
A number of sworn affidavits have been filed in these proceedings, but have not at this stage been formally read. The affidavits filed by Mr Amponsem make no reference to the person or the time when the alleged information was conveyed to Mr Amponsem as to what was allegedly said during the 10 March 2011 meeting of kitchen staff at the North Wollongong Hotel. The recollections of the participants in the meeting who have completed affidavits in these proceedings have a common theme, but vary on specific details. I acknowledge that all of this material would need to be subject to cross-examination to determine if any of the statements made therein can be sustained.
The only material that could be considered as a contemporaneous note appears in the Affidavit of Melissa Horvat, who was a relief head chef allocated to the North Wollongong Hotel by Laundy when Amponsem was suspended. Ms Horvat, in her affidavit, states:
10. On or about 16 May 2011 I was asked by Michelle Mahony, group’s human resource manager at the time to type up my recollection of the meeting on 10 March 2011. Annexed hereto and marked with the letter “A” (page 1-2) is a copy of the note that I forwarded to Ms Mahony in response to that request.
I acknowledge that this testimony has not been read into evidence and has not been tested during cross-examination, however, the circumstances of the meeting described by Ms Horvat are distinctly different from the material that Mr Amponsem has relied upon in his complaint to the AHRC.
The other affidavit material available to the Court, all having the same status, are as follows:
a)Affidavit of Kobina Amponsem, sworn 5 October 2012;
b)Affidavit of Kobina Amponsem, sworn 11 December 2012:
c)Affidavit of Brooke Piper, sworn 10 December 2012;
d)Affidavit of Christopher Paul Hendry, sworn 22 November 2012;
e)Affidavit of Nea Bernice McCallum, sworn 10 June 2012;
f)Affidavit of Teewon Pinky Gondeh; sworn 5 October 2012; and
g)Affidavit of Niall Connelly, sworn 5 October 2012.
The material contained in these affidavits ranges from a view that is supportive of Laundy and Poulos to the other end of the scale, being a view that is supportive of Amponsem’s claim. However, none of these documents identify who conveyed the alleged statements made by Poulos at the meeting to Amponsem, nor do they make any reference to the comments allegedly made by Poulos during that meeting which are recorded in the fourth, fifth and sixth sentences of the description of the events referred to at [60] above.
In oral submissions Mr Cross stated that it was certainly not the case between the parties, on any version of the events, that there was any termination of employment arising from these alleged comments, or termination of employment arising from racial issues. As indicated elsewhere in this judgment, the Court is aware of other proceedings brought within the Fair Work jurisdiction of this Court on 11 January 2012. The issue raised in those proceedings concerns a dispute between the parties over payment of annual leave entitlements. The Fair Work Application was subsequently amended, and annexed to that Amended Application was a termination letter provided to Amponsem on 7 March 2011 from Michelle Mahony (human resources manager for Laundy at the relevant time). In that letter the following appears:
We hereby advise you that your position as head chef at North Wollongong Hotel has been terminated, effective Friday 4 March 2011.
Mr Cross submits that the termination related to misconduct and had nothing to do with Amponsem’s race. In the absence of uncontested evidence, submissions or authorities, on the material available to the Court, it would appear that at the time of the meeting Amponsem was no longer an employee of Laundy.
The question arises as to whether the comments alleged to have been made by Poulos were made in public. There is no dispute that the meeting was held in the upstairs area of the Hotel. There is, however, some dispute as to whether the area was closed to the public, as opposed to it being sufficiently open to allow someone to wander into the room. The affidavits noted above at [64] state the stairwell leading to the upstairs bar was roped off, indicating that it was closed to the public. Again, this is untested evidence and is only being reviewed in order to establish the merits of the application in line with the principles established in Vaenuku (supra).
An analysis of the Racial Discrimination Act is considered in McLeod v Power (supra). The central section of the Racial Discrimination Act, being s.9, is outlined in his Honour Cameron FM’s reasons at [39] – [42] where he stated:
39. The central section of the RDA is section 9. It provides that it is unlawful for a person to “do any act involving a distinction, exclusion, restriction, or preference based on race, colour, descent or national or ethnic origin which has the effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life”. Accordingly section 9 speaks of human rights arising from various fields of “public life”. The section is a ratification of the various political and civil rights that are set out in Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination (the ICERD) to which Australia is a signatory.
40. Article 4 of the ICERD deals specifically with the issue of racial hatred and requires the states that are party to the Convention to take steps to eliminate incitement to acts of racial discrimination.
41. In the second reading speech of the Racial Hatred Bill before the House of Representatives on 15 November 1994, the then Attorney-General, Mr Lavarch said as follows:
The Racial Hatred Bill is about the protection of groups and individuals from threats of violence and the incitement of racial hatred, which inevitably leads to violence … The bill is intended to close a gap in the legal protection available to the victims of extreme racist behaviour. No Australian should live in fear because of his or her race, colour or national or ethnic origin …
The bill requires an objective test to be applied by the commission so that community standards to behaviour rather than the subjective views of the complainant are taken into account.1
42. In the explanatory memorandum to the Bill was written the following:
The Bill maintains a balance between the right to free speech and the protection of individuals and groups from harassment and fear because of their race, colour or national or ethnic origin. The Bill is intended to prevent people from seriously undermining tolerance within society by inciting racial hatred or threatening violence against individuals or groups because of their race, colour or national or ethnic origin.
What is alleged to have been said by Poulos is hearsay because Mr Amponsem was not present.
In McLeod v Power (supra) at [43] – [44] s.18C of the Racial Discrimination Act is addressed and his Honour states:
43. Subsection 18C(1) of the RDA provides that:
It is unlawful for a person to do an act, otherwise than in private, if:
(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or group of people; and
(b) the act is done because of the race, colour or national or ethnic origin of the other person or some or all of the people in the group.
44. Subsections 18C(2) and (3) provide as follows:
(2) For the purposes of subsection (1) an act is taken not to be done in private if it:
(a) causes words, sounds, images or writing to be communicated to the public; or
(b) is done in a public place; or
(c) is done in sight or hearing of people who are in a public place.
(3) In this section: “public place” includes any place to which the public have access as of right or by invitation, whether express or implied, and whether or not a charge is made for admission to the place.
The application of these sections was considered by his Honour at [46] where it states:
46. Section 18C was considered by the Human Rights and Equal Opportunity Commission in Korczac v Commonwealth of Australia (Department of Defence) (2000) EOC 93–056 where it was said as follows:
It is evident that the RDA does not require the relevant acts to have occurred “in public” or “in a public place” what is required that the acts occur “otherwise than in private”. Section 18C(2) indicates circumstances where certain conduct may be taken to occur “otherwise than in private”. However the section is not exhaustive, it simply indicates some examples of cases which may fall within the definition and it does not exclude other circumstances which a person may argue fall within the meaning of “otherwise than in private”.
Section 18A of the Racial Discrimination Act states:
Vicarious liability
(1) Subject to subsection (2), if:
(a) an employee or agent of a person does an act in connection with his or her duties as an employee or agent; and
(b) the act would be unlawful under this Part if it were done by that person;
this Act applies in relation to that person as if that person had also done the act.
(2) Subsection (1) does not apply to an act done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing the act.
Accordingly, the alleged statement made by Mr Poulos at the meeting, if made, was made in connection with his duties as an employee of Laundy.
In McLeod v Power his Honour then went on to outline the four necessary elements to satisfy a breach of the Racial Discrimination Act at [47] – [52], where he states:
47. It is in this context that section 18C of the RDA must be interpreted. In my view, the applicant needs to satisfy each of the following criteria before the act of which he complains can be found to be unlawful pursuant to section 18C of the RDA.
48. Firstly there must be a causal connection or nexus between the act of which he complains and his race, colour or national or ethnic origins.
49. Secondly, he must establish, on an objective basis, that the act complained of was reasonably likely to offend a person with his racial or ethnic origins. It is not sufficient for the applicant himself to establish that he personally was offended, insulted, humiliated or intimidated. The objective test is to be based on ordinary community perceptions and the context in which the word or words or the action complained of occurred. In this regard see Hagan v Trustees of the Toowoomba Sports Ground Trust (2001) EOC 93–141. This case concerned the use of the word “nigger” in the naming of a stand at a sporting ground. There can be no doubt that the word “nigger” is one that is likely to be deeply offensive to many people but particularly to persons of Afro-American descent. This is so given the history of slavery, segregation and denial of civil rights to such persons in the United States of America during the years before and after the American Civil War and the deep layers of meaning that surround the word “nigger” in this context. However, in the context of the naming of a sports stand in Australia, where the person after whom the stand was named had as his nickname the epithet “nigger”, and the stand was named accordingly and members of the community generally were not offended by the naming of the stand in this way, it could not be said that section 18C had been enlivened. Although it was clearly the case that one particular person had been sincerely offended by the naming of the stand in this way.
50. Thirdly, the applicant must establish that the act complained of was done “otherwise than in private”. In my view it is not sufficient that the applicant establish that the act complained of occurred in a public place. He needs to establish that it did not occur in private. I accept the interpretation of section 18C(2) provided by Korczac (above) and that the various matters set out in sub section (2) are examples that may fall within the definition but are not in themselves definitive.
51. A private conversation does not become a public one merely because it takes place in a public street or in a place to which members of the public have a right to admission or access. Again, whether or not an act occurs “otherwise than in private” depends on the context of the situation and must be interpreted from the overall intention of the legislature in enacting Part IIA of the RDA. That purpose was to prohibit and provide a civil remedy for behaviour based on racial hatred and to prevent persons being threatened because of their particular racial, colour, national or ethnic origins.
52. Finally, it is clear that the provision of the relief sought by the applicant is discretionary, even if it is found that an unlawful act of discrimination has occurred pursuant to section 18C of the RDA. Section 46 PO (4) of the HROC Act reads as follows:
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 think 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 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.
In Sidhu v Raptis [2012] FMCA 338 his Honour Smith FM made the following observation at [5]:
The legislative history and interpretation of s 18C have been thoroughly considered in a number of Federal Court judgments, most recently by Bromberg J in Eatock v Bolt (2011) 197 FCR 261, and by Barker J in Clarke v Nationwide News Pty Ltd t/as Sunday Times [2012] FCA 307 (“Clark’s Case”). I have endeavoured to apply this jurisprudence to the present matter.
Applying those necessary elements to the factual matrix of the proceedings before this Court, although there is dispute about what was actually said at that meeting, it is not apparent on the material currently before the Court, that the statements made are of the nature contemplated in any way by the Act as it was not inciting racial hatred.
The next element that must be established on an objective basis that the act complained of was reasonably likely to offend a person of his racial or ethnic origins. Mr Amponsem alleges that the comments degraded him, making him feel uncomfortable in any work environment “as I feel this is how other bosses feel towards me”. The difficulty with this element of the claim was that Mr Amponsem did not hear the alleged statements because he was not present at the time. An examination of the evidence currently before the Court does not reveal who relayed the alleged comments to Amponsem, but it must be assumed that they were conveyed by somebody present at the meeting on 10 March 2011 and it is quite possible that what is alleged to have been said may have been incorrectly stated. Following the line set out in McLeod v Power (supra) the objective test is to be based on ordinary community perceptions and the context in which the word or words, or the actions complained of occurred. The test to be satisfied is whether a reasonable person would have felt any effect by what was said. The only material to support this claim, again, appears in the online complaint form at Part 4 – Loss or Harm Experienced (which is reproduced above at [60]).
The third test identified in McLeod (supra) is that the applicant must establish that the act complained of was done “otherwise than in private”. Mr Cross drew the Court’s attention to an example which is addressed in McLeod (supra). That event occurred inside and outside the gatehouse at Yatala Prison in South Australia. There, the exchange of words occurred outside the gatehouse in the presence of two other prison guards and, notwithstanding that it was seen to be in a general area, it was found not to be public. In the matter before this Court the alleged statement was made during a staff meeting in the upstairs bar area of the North Wollongong Hotel which was closed to the public at the time. Only members of the kitchen staff were present. With the identify of the person who conveyed the alleged statement to Amponsem not currently being identified to the Court, it could be presumed that an attendee at that meeting conveyed that message or, alternatively, someone else other than the attendees overheard the alleged statement and conveyed it to Mr Amponsem.
The bulk of the material before the Court, in the form of affidavits that have been filed but not read, would be subject to some form of objection and rigorous testing under cross-examination. Putting that to one side and taking the material at its highest I am not satisfied that even the worst reading of what is alleged to have been said by Poulos would fall within the requirements of the Racial Discrimination Act and be sufficient to attract a remedy in the form of relief.
In considering the material that is before the Court, I am not satisfied that the Applicant can establish there was or were a breach or breaches of the relevant legislation he claims was breached. I am satisfied that in the exercise of the Court’s discretion it is appropriate that the application for an extension of time should be refused because the specific requirements of the clauses pursued cannot be met. I am conscious of the fact that this deprives the applicant of the opportunity to have a full trial of the case before the Court, however, all of the evidence he relies upon has already been filed and served. The applicant has been cross-examined on this evidence, given it was with an emphasis on the preparation and delays in filing of his application, but a substantial part of the evidence likely to be considered in a full trial has already been ventilated. There is no suggestion that the applicant has further evidence or additional witnesses to support his claims.
Conclusion
This is an application alleging unlawful discrimination under s.46PO of the AHRC Act. The initial consideration concerns the application for an extension of time, found under Part E of the Application form. The initial observation is that the late filing of the application may have been due to lack of understanding of the Court’s procedures and requirements due to the applicant’s status as a self-represented litigant. However, on the applicant’s own evidence and through his cross-examination, the applicant demonstrated a greater knowledge of the Court’s procedure than he had originally claimed due to his experience of filing and dealing with other proceedings within other jurisdictions of this Court and, in an attempt to explain and justify the late filing of the Application, gave contradictory evidence. In applying the tests established in Vaenuku v Terrigal Trojans Rugby Club Inc (supra) at [16], the three core matters relevant to an application of the nature being currently considered by the Court, namely explanation for delay, any prejudice to the respondent and whether the applicant has an arguable case, I have formed the view that those principles have not been satisfied to the extent required in order for the Court to exercise its jurisdiction to extend time.
The explanation for delay is substantially contradicted by the evidence of the applicant alone. Mr Amponsem attempted to provide the explanation that he had to reconstruct the original application sent to the Court due to it being lost by either Australia Post or the Court’s Registry, but the result of this attempt was that his explanation was, instead, totally discredited.
In respect of prejudice to the respondents, I am satisfied that as a result of the delay in the applicant filing these proceedings before the AHRC and this Court, the sale of the North Wollongong Hotel by the first respondent and the mobility in employment of the kitchen staff who may potentially have been called as witnesses, the respondents’ ability to defend these claims was prejudiced and complicated.
The third consideration this Court must have regard to is whether the applicant has an arguable case. This presents more difficulty as the affidavit material on the Court file in respect of the discrimination claim has not been read, subjected to objection or tested by cross-examination. However, that material taken on the limited basis of those restrictions indicates a number of inconsistencies in the argument being advanced by Mr Amponsem in respect of meeting the criteria set out by the relevant legislation.
In the circumstances I am not satisfied that than extension of time to file the applicant’s Application should be granted because the three requirements, as set out in Vaenuku (supra) at [16], have not been met. Consequently, the application for an extension of time should be refused and Mr Amponsem ordered to pay the respondents’ costs.
I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 29 November 2013
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