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 |
| 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…
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- Case
- [2013] FCCA 1982
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether to grant the applicant an extension of time to commence proceedings pursuant to s 46PO of the *Australian Human Rights Commission Act 1986* (Cth). This involved considering the principles governing such applications, including the adequacy of the explanation for the delay, any prejudice to the respondents, and the merits of the underlying application.
Lloyd-Jones J refused the application for an extension of time. The court found that the applicant's explanation for the delay, which centred on an alleged loss of the initial application in the post, was not sufficiently credible. The court noted inconsistencies in the applicant's evidence and the respondents' evidence regarding the documents filed and the tracking information. The court applied the principles established in *Vaenuku v Terrigal Trojan Rugby Club Inc & Anor* [2010] FMCA 701, finding that there was no acceptable explanation for the delay and that the merits of the application did not warrant an extension.
The application for an extension of time was refused, and the applicant was ordered to pay the respondents' costs and disbursements of and incidental to the application.
Orders
Orders of the court
1.
The application for an extension of time filed on 16 July 2012 is refused.
2.
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
1.
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.
2.
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.
3.
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.
4.
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.”
5.
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
6.
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”).
7.
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
8.
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.
9.
The applicant sought to rely on his Application and the documents attached to it.
10.
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”).
11.
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
12.
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.
13.
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.
14.
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
15.
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
16.
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.
17.
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.
18.
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.
19.
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.
20.
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
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Decision
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