Beling v STAPELS
[2001] FMCA 135
•10 December 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BELING v STAPELS | [2001] FMCA 135 |
| HUMAN RIGHTS – Conditional extension of time – arguable case – delay six weeks – extension granted for only one part of claim found to be arguable – whether words uttered in private – prejudice to respondent on medical grounds. |
Human Rights and Equal Opportunity Commission Act 1986
Racial Discrimination Act 1975
Phillips v Australian Girls Choir & Anor. (2001) FMCA 109
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348
Comcare v A’Hearn (1993) 45 FCR 441
Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 550
Lucic v Nolan (1982) 45 ALR 411 at 416
Dix v Client Compensation Tribunal (1993) 1 VR 297 at 302
Doyle v Chief of Staff (1982) 42 ALR 283 at 287
Wedesweiller v Cole (1983) 47 ALR 528
| Applicant: | LESTER MONS BELING |
| Respondent: | PETER STAPELS |
| File No: | MZ 900 of 2001 |
| Delivered on: | 10 December 2001 |
| Delivered at: | Melbourne |
| Hearing Date: | 10 December 2001 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Counsel for the Applicant: | Mr W Swain |
| Solicitors for the Applicant: | Telford Storey and Associates |
| Counsel for the Respondent: | Ms M Richards |
| Solicitors for the Respondent: | Young Hubbard and Co |
ORDERS
(1)The applicant be allowed pursuant to s 46PO of the Human Rights and Equal Opportunity Commission Act further time in which to make application against the respondent, pursuant to the Racial Discrimination Act until 16 July 2001.
(2)The application be restricted to allegations said to arise out of the incident which occurred on 30 June 2000.
(3)The applicant shall file and serve any further affidavits upon which he seeks to rely including any affidavits in support of loss and damage on or before 25 January 2002.
(4)The respondent shall file and serve any further affidavits upon which he seeks to rely on or before 15 February 2002.
(5)The proceedings shall be the subject of the mediation on or before
28 February 2002 to be conducted by a Registrar of the Court.(6)The application be otherwise listed for hearing on 16 April 2002 with a hearing estimate of one day.
(7)Liberty to apply is granted to the parties in relation to any matters arising out of these orders.
(8)Costs reserved.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 900 of 2001
| LESTER MONS BELING |
Applicant
And
| PETER STAPELS |
Respondent
REASONS FOR JUDGMENT
This is an application by LESTER MONS BELING (“the applicant”) which arises out of a complaint which had been the subject of a notice of termination by the Human Rights and Equal Opportunity Commission, dated 4 May 2001. Before this court today, the applicant seeks an extension of time and does so pursuant to section 46PO(2) of the Human Rights and Equal Opportunity Commission Act 1986. That section provides as follows:
“(2) The application must be made within 28 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows.”
It is clear in the present case that the applicant had filed the application in the Federal Court of Australia on 16 July 2001, having received a notice of termination dated 4 May 2001, which therefore makes the application filed in the Federal Court approximately six weeks out of time. The application which is now before this court had been transferred to the court by order of Sundberg J on 20 November 2001. Before me this day, Mr Swain appeared for the applicant and Ms Richards for the respondent. There is no issue taken about the right of the applicant to pursue an application for extension of time, despite the fact that such an application was not referred to at an earlier time by the applicant, in his application to which I have referred.
In considering the application for extension of time, I have been referred by both counsel to relevant affidavit material. The application is opposed and has been opposed not simply by way of submission but also by affidavit. The applicant has, in accordance with the direction by a registrar, filed and served an affidavit in support of the application for extension of time, sworn 23 November 2001, and the respondent relies upon an affidavit sworn by him on 6 December 2001.
In support of the application, counsel for the applicant has asserted that in the present case, I should grant the application, relying upon the affidavit of his client, and in particular I have been referred to paragraph 6 of that affidavit, which, after reciting receipt of a copy of notice of termination, the applicant states in general terms that, as a consequence of the wrongful acts of the respondent here, his partner, "My wife and I were obliged to sell our property at 10 Cooba Street Canterbury." The applicant then goes on to refer to contracts of sale being entered into, and that settlement was effected on or about 12 July 2001.
In summarising what is referred to in that affidavit, it seems to me that essentially the applicant suggests that it is possible the notice of termination may have been misplaced during the period of moving out of one house and into another, and in other respects suggests that any delay that has occurred in the present case would not be a delay which has caused prejudice to the respondent. The applicant asserts that it is his desire to pursue whatever rights he may have with due diligence. The applicant further states in that affidavit, though, that on the day when he moved out of his property, he had a further altercation with the respondent and that this appears to have strengthened the applicant's resolve to pursue the application before this court.
Counsel for the respondent has submitted that in this application, there is no satisfactory explanation for the delay, that, in any event, in all the circumstances, I should be concerned that in making an application for extension, regard should be had to the affect that an extension may have upon the respondent, and in this case, as I understand the submission, the detrimental affect upon the respondent's health is submitted to be a significant factor. It is further submitted on behalf of the respondent that there is no merit in this application.
I have dealt with the principles to be applied in relation to considering an extension of time in human rights applications, and I set out those principles in some detail in the matter of Phillips v Australian Girls Choir & Anor. (2001) FMCA 109. In that case, I set out the principles to be applied in paragraph 10 of the judgment, which effectively summarised the principles which had been applied in the context of other matters, in the decision of Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348, and also modified those principles following the decision of the Full Court of the Federal Court in matter of Comcare v A'Hearn (1993) 45 FCR 441 as follows:
“In the light of A’Hearn’s case, it is clear that at least one of the principles referred to by Wilcox J in the Hunter Valley decision needs to be modified, namely that it should not be any longer regarded as law that the inexcusable delay on the part of a solicitor should be visited upon the client and nor should it be a principle that there is in fact a pre-condition to the exercise of discretion in favour of the applicant for extension to show an acceptable explanation for delay or that it’s fair and equitable in the circumstances to extend time. In the light of the decision in Ahearn’s case it is useful to set out in modified form the relevant principles in relation to the exercise of the Court’s discretion when considering an extension of time in a human rights application based upon those principles distilled by Wilcox J in Hunter Valley 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).”
Applying those principles to the present case, I accept that it is appropriate that I should look at the explanation for delay and should look further at the issue of prejudice and the merits of the application. In my view, the six-week delay in the present case is a period of time which cannot be regarded as a significant departure from the 28-day period. I accept, for the purpose of this application, the explanation from the applicant that the period of time, at least in part, where the application should have been filed, occurred at a time when the applicant had moved premises, and although that explanation is not an explanation which I regard as being significant, it does at least provide some reason for a delay of such a short period of time. In relation to that issue, therefore, I think there is a sufficient, at least, explanation which would enable an extension of time to be granted.
In relation, however, to the issue of prejudice, that raises a matter of some significance, supported, as it appears to be, in part by medical evidence from treating practitioners of the respondent. It is said on behalf of the respondent that as a result of significant medical conditions, that the respondent effectively was relieved to a great extent that this dispute between him and his former neighbour had come to an end with the expiration of the time limit provided for the bringing of the application before this court. I have looked carefully at the medical reports annexed to the affidavit of the respondent, and consider that those medical reports do, in part, support the suggestion that an extension of time may cause further distress and anxiety to the respondent. It seems to me, however, that in a case of this kind, that whilst there is evidence of some prejudice of the kind that I have just described, that that prejudice, in the context of an application of this kind, of itself is not sufficient to deny the application for extension of time.
That brings me to then the third and what I regard to be more significant ground of opposition to this application, namely whether there is indeed an arguable case. The claim in this matter is a claim which has been summarised in the notice of termination by the Human Rights Commission as being one which arises from incidents alleged to have occurred on two separate occasions between the applicant and the respondent. The incidents occurred on 30 June 2000, and, it is alleged, further occurred on either 8 or 9 July 2000. It is said that on 30 June 2000, at – and I interpolate – or near the premises of the applicant, the respondent has uttered words to the applicant in the presence of at least one other member of the public, in terms of, "You are a black bastard who is infected with AIDS virus. Go back to Sri Lanka."
Those words would appear to have been uttered on that day, and although the statement of complaint attached to the notice of termination suggests by inference that the same words were uttered again on 9 July 2000, the only possible corroborative evidence which is before this court in relation to that second incident appears to come from Mr Scott McKenzie who, in an affidavit sworn 15 July 2001, relied upon by the applicant, does not corroborate that those words were uttered on that date. Instead, the deponent, Mr McKenzie, refers to an event on 8 July 2000 as being an event that he witnessed where there was an exchange of what can only be described as yelling which would constitute an altercation, but none of which, in my view, could possibly constitute the basis upon which it can be said an act of unlawful discrimination has occurred, pursuant to the relevant legislation.
In this application, the applicant relies upon section 18C of the Racial Discrimination Act 1975, and that section provides that:
“(1)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 of some or all of the people in the group.
(2)For the purpose 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 the sight or hearing of people who are in a public place.”
The section defines ‘public place’ as follows:
“Public place includes any place to which the public have access as a right, or by invitation, whether expressed or implied and whether or not a charge is made for admission to the place.”
In the present case, it appears to me to be conceded by counsel for the respondent that if the words uttered were indeed uttered otherwise than in private, then they may arguably constitute a breach of the section to which I have referred. However, counsel has submitted that in the circumstances of the present case, if the events occurred in the premises of the applicant and were heard by only one witness, which, in the present case, appears to be Mr Brent Reed, a tradesman who had been invited to the premises by the applicant, then that of itself would not constitute a breach of the section, as it would have occurred in private. The communication in these circumstances of the words which might appear to constitute a contravention of the section, would not have thereby been communicated to the public, as defined in the act.
During the course of an exchange with counsel, I raised the proposition that the act does not define the issue of the number of members of the public who may be present when words of this kind are communicated. In my view, that is a real issue that needs to be agitated at the hearing of this application, and at the very least, it is arguable that one member of the public, hearing words uttered of a kind that are alleged in the present case, albeit in private premises where that person is invited to attend, may – and I emphasise may – constitute a sufficient basis for unlawful discrimination to be sustained. As I indicated, it is only necessary on an application for extension of time that an arguable case be presented. I should stress that there is no such evidence of an arguable case in relation to the event described as occurring on 8 or 9 July 2000.
Accordingly, in my view it is appropriate in all the circumstances to allow the application for extension of time, but to only allow it in relation to that part of the complaint which relates to the allegation which arose on 30 June 2000. So that the extension of time is conditional, and in my view the court has a discretion to impose conditions that it sees appropriate on an application of this kind.
The orders of the court will therefore be:
(1)The applicant be allowed pursuant to s 46PO of the Human Rights and Equal Opportunity Commission Act further time in which to make application against the respondent, pursuant to the Racial Discrimination Act until 16 July 2001.
(2)The application be restricted to allegations said to arise out of the incident which occurred on 30 June 2000.
(3)The applicant shall file and serve any further affidavits upon which he seeks to rely including any affidavits in support of loss and damage on or before 25 January 2002.
(4)The respondent shall file and serve any further affidavits upon which he seeks to rely on or before 15 February 2002.
(5)The proceedings shall be the subject of the mediation on or before
28 February 2002 to be conducted by a Registrar of the Court.(6)The application be otherwise listed for hearing on 16 April 2002 with a hearing estimate of one day.
(7)Liberty to apply is granted to the parties in relation to any matters arising out of these orders.
(8)Costs reserved.
I direct that the reasons for the decision in relation to the application for extension of time be transcribed, and upon review, shall constitute my reasons for decision.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 10 December 2001
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