Butler v Clemesha

FEDERAL CIRCUIT COURT OF AUSTRALIA

BUTLER v CLEMESHA

[2013] FCCA 722

Catchwords:
HUMAN RIGHTS – Application for relief in respect of grossly offensive racist abuse – application considerably out of time – whether extension of time should be granted – consideration of explanation for delay – consideration of relevant matters including prospects of ultimate success – extension of time not granted.

Legislation:

Human Rights and Equal Opportunity Commission Act 1986 (Cth), ss.46PH(1), 46PO(2), 46PO(4), 46PR

Racial Discrimination Act 1975 (Cth), s.18C

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Brodie-Hans v MTV Publishing Ltd (1995) 67 IR 298

Applicant:

MARK ANTHONY BUTLER

Respondent:

JOHN CLEMESHA

File Number:

PEG 246 of 2012

Judgment of:

Judge Burchardt

Hearing date:

18 April 2013

Date of Last Submission:

18 April 2013

Delivered at:

Melbourne (via video link to Perth)

Delivered on:

11 July 2013

REPRESENTATION

The Applicant:

In person

The Respondent:

No appearance

ORDERS

The application for an extension of time is dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT PERTH

PEG 246 of 2012

MARK ANTHONY BUTLER

Applicant

And

JOHN CLEMESHA

Respondent

REASONS FOR JUDGMENT

On 15 October 2012, the applicant, Mr Mark Anthony Butler, filed his application in this Court. Being a Human Rights application, two documents were required to accompany his application namely a copy of his original complaint to the Australian Human Rights Commission, if available, and the Notice of Termination of Complaint given by the President of the Australian Human Rights Commission. Although both were ticked by Mr Butler, in fact, those documents did not accompany his application.
When the matter came on for trial, the Court raised with Mr Butler whether or not he had ever had a complaint in the Human Rights Commission, and he asserted that he did. He produced a letter from the Australian Human Rights Commission dated 26 March 2012, which has become exhibit A1. From that letter, it is clear that a Notice of Termination was despatched to Mr Butler on that occasion, and the letter advised Mr Butler that he must make application to either the Federal Court of Australia or this Court within sixty (60) days of the date on the Notice of Termination.
The Notice of Termination itself has still not been provided to the Court, but it is reasonable to infer that it was not later than 26 March 2012.
It is readily apparent that one reason why this Court seeks a copy of the Notice of Termination with the application is to enable the Court properly to identify whether or not the sixty (60) day time limit has been complied with.
It is clear from exhibit A1 that the President terminated the complaint because there was no reasonable prospect of the matter being settled by conciliation pursuant to s.46PH(1) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the Act”).
It is equally clear from the terms of the letter that the President has given notice to Mr Butler, pursuant to s.46PH(2) of the Act.
There is a time limit of 28 days for application to the Court pursuant to s.46PO(2) of the Act. The letter, exhibit A1, appears to me to be erroneous with its reference to a sixty (60) day time limit.
Whether the time limit is, as I think is the case, 28 days from the issue of the Notice of Termination, or whether it is sixty (60) days, as asserted by exhibit A1, does not matter very much, because on either basis the application was clearly lodged out of time. As indicated, the application was not lodged until 15 October 2012, almost eight months after the date of the notification.
Mr Butler’s application has sought an extension of time and, accordingly, the first matter to be considered is whether or not that extension of time should be granted.
In an administrative law context, Wilcox J set out principles in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 which have been applied in a variety of other contexts (see, for example, Brodie-Hans v MTV Publishing Ltd (1995) 67 IR 298).
The principles therein set out can be paraphrased, as follows:
a)Special circumstances are not necessary, but the Court must positively be satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation for delay which makes it equitable to extend the time limit.
b)Action taken by the applicant, other than by making an application under the Act, is relevant to the consideration of whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non curial means, has continued to make the decision–maker aware that he contests the finality of the decision, and a case where the decision maker was allowed to believe that the matter was finally concluded.
c)Any prejudice to the respondent, including any prejudice in defending the proceedings occasioned by the delays is a material factor militating against the grant of an extension.
d)The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.
e)The merits of a substantive application may be taken into account in determining whether to grant an extension of time.
f)Consideration of fairness as between the applicant and other persons in a like position is relevant to the exercise of the Court’s discretion (this matter is not of any significance in this case).
In order to apply the matters arising out of the above principles, it is appropriate to traverse the materials filed by Mr Butler with the Court. It should be noted that Mr Butler is self-represented, and that notwithstanding s.46PR of the Act, which provides that the Court is not bound by technicalities or legal forms, there is nothing to suggest that the rules of evidence do not apply.
In the application originally filed on 15 October 2012, under the heading, “Do you need an extension of time” Mr Butler wrote:
“I was sick for a long time because the Human Rights order was terminated, and because of this he continues to racially abuse me and my family.”
In his first affidavit filed on 23 October 2012, Mr Butler merely appended two annexures. He did not swear that the contents of the annexures were true.
Annexure A is a letter to the Commissioner of Police, dated 14 October 2012. It sets out Mr Butler’s circumstances, and relevantly includes an assertion that:
“…his behaviour has escalated he calls me a nigger because my mother is of aboriginal decent he has said he is going to kill me in front of my children and he tells my children that Im lazy niggar cunt.” (sic)
This is the only incident of asserted racial abuse contained in the annexure.
Annexure B is a statement, apparently signed by Mr Butler, and apparently witnessed by acting as senior sergeant on 13 January 2012. Relevantly for these purposes (there are considerable numbers of complaints which do not give rise to matters arising under the Racial Discrimination Act 1975), the statement itemises a complaint that on

6 May 2011 the respondent, Mr Clemesha, called him a “dog”.
The statement further alleges that on 1 November 2011, the respondent called Mr Butler a “fucking lazy black nigger cunt”. In paragraphs 74 to 77, it would appear that these words were said while Mr Clemesha was, in part, parked on the road outside the dwellings of the applicant and the respondent (which are side by side), and partly when he was on his own property. The statement asserts that the respondent said these words in a very loud tone of voice.
While it is clear that Mr Butler’s wife was present, it does not appear that any other member of the public was within hearing distance.
On the same occasion, the statement asserts that the respondent said to Mr Butler, whose wife and children had by this stage departed inside their property, “Why don’t you go and call your nigger family?” and shortly there afterward, whilst in his own driveway, the respondent said, “Coon, you’re nothing but a coon. I’m going to kill you, put you in the boot and bury you, nigger.”
It is also asserted that two children of the respondent were present when these words were being said.
In an affidavit filed on 8 November 2012, Mr Butler annexes a statement from his wife dated 4 November 2012. Whilst that statement traverses further insults allegedly made by the respondent to Mr Butler, and a number of concerning issues about the behaviour of the respondent generally, it is on its face clearly hearsay.
In his next affidavit filed on 15 February 2013, Mr Butler, once again, annexes a copy of an undated statement. This relevantly asserts that the respondent late at night on 4 December 2012 said, “Go get fucked, nigger” to Mr Butler. The front page appears to be dated, and initialled, 6 December 2012.
The other annexures do not in my view take the matter further.
On 18 February 2013, Mr Butler filed another affidavit which relevantly exhibits the transcript of proceedings before the Magistrates’ Court of Western Australia on 11 January 2012. It should be noted that it is clear from this transcript (I leave to one side its admissibility for these purposes) that the restraining order proceedings that were then under way essentially arose out of the May 2011 and November 2011 incidents to which I have already referred.
When the matter was before the Court, Mr Butler, as indicated, provided a copy of his letter from the Human Rights Commission, and also a letter dated 4 January 2012 from Dr D. Perera (which has become exhibit B). That affidavit asserts:
“This is to inform you that Mark Butler suffers with severe depression, and a chronic back injury, that makes him permanently disabled. His depression has been largely related to victimization at work, and his current exposure to racial victimization by neighbours, is certainly aggravating this, and I am very much concerned for his safety.”
Mr Butler asserted, from the bar table, that he had been in and out of hospital all the time, and when sworn deposed that his health had deteriorated and that he had been under treatment all year for his depression.
Although Mr Butler’s primary claim was for an injunction to restrain Mr Clemesha from the conduct complained of, he did indicate that he would accede to an order for compensation in his favour if the Court was minded to make one.
Against these matters I return to the considerations I have already identified as to whether an extension of time is or is not appropriate.
First, the prima facie position is that the time limit should be complied with. Whether the time limit is 28 days or 60 days it is not a particularly ungenerous one in the scheme of things. The fact is that Mr Butler knew by about 26 March 2012, or shortly thereafter that he had to make his application. The letter to him could not have been clearer. It identified the relevant registries of this Court and the Federal Court of Australia where he could file his application.
The explanation for delay is in part persuasive and in part not.

Mr Butler presented as a man under strain (this is not a medical opinion but rather just a simple observation). I suspect he has been unwell and under treatment since his doctor’s letter of January 2012.
What is not apparent, however, is any suggestion either in the doctor’s letter or otherwise that Mr Butler was so incapacitated as to be unable to conduct his affairs. Since filing his proceeding last October he has been well able to file a tranche of affidavits albeit that they are not in proper form as they merely annex other documents and do not directly depose to the matters which Mr Butler plainly seeks to agitate.
The Court would have been far more satisfied had Mr Butler produced up-to-date medical evidence. He clearly understands the necessity for medical evidence because he produced exhibit B.
The next matter to be considered is other action taken by Mr Butler. In fact, he clearly prosecuted his application for a restraining order before the Magistrates’ Court in Western Australian. He obtained one valid for six months in January 2012.
It is reasonable to suppose that Mr Clemesha, who was ordered to pay the costs of that proceeding, would have assumed thereafter that the matter was at an end when the termination letter was sent, as I would infer it must have been, to him.
Next, plainly there will be prejudice to the respondent if the matter proceeds. He will have to defend the case. He would have to either defend the case (if the Court were minded to adjourn and then compel him to do so) or he will face being the subject of a restraining order without time limit and be subject to an order for damages.
There is, however, no obvious prejudice caused by the delay itself because while the time limit for application has been considerably exceeded the events the subject of complaint are no more than several years old and well within standard limitation periods.
The next relevant matter to be considered in the circumstances is the merits of the substantive application.
In my view, Mr Butler’s application has substantial merit. Leaving aside for the moment whether or not the findings apparently made by the Magistrate in Western Australia give rise to issue estoppel or even res judicata, it is clear even on what Mr Clemesha told the Magistrate that he has on occasion racially abused Mr Butler. It seems highly likely to me that Mr Butler’s complaint that he was the subject of the appallingly offensive language from the respondent that he asserts he had suffered. It would be difficult to think of language more grossly offensive to a person of Aboriginal ethnicity than that described.
However, that is not perhaps the end of the matter. There are a number of difficulties with Mr Butler’s claim. It is clear that the Racial Discrimination Act 1975 (Cth), in its current form prohibits offensive behaviour because of race, colour or national or ethnic origin (s.18C of the Act).
Relevantly, s.18C(1) provides:
“(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 a 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.”
Pursuant to s.18C(2) it is provided:
“(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 the sight or hearing of people who are in a public place.”
Public place is defined as, “includes any place to which the public have access as of right or by invitation, whether express or implied or whether or not a charge is made for admission to the place.”
Here, as I have already said, there is no question that the language that Mr Clemesha used would offend and insult and humiliate a person of Mr Butler’s ethnicity and there is no question that this was done because of that. Indeed, the evidence given before the Magistrate makes it plain that this was so.
A question that would be at large, however, is whether or not these remarks were in the circumstances in private.
Whether or not Mr Clemesha’s family, who appear to have been present arguably for part of the time Mr Butler was being abused, constitute members of the public for these purposes might be open to question.
Likewise, it appears that most of the actions of which complaint is made took place while the two neighbours were on their own properties. It does appear, however, that some of what was said on

1 November 2011 was said in a public place because it appears to have taken place as Mr Clemesha alighted from his car and then walked onto his own property.
Furthermore, it does not appear that any other members of the public were present on these occasions.
Looked at more carefully, there is nothing to suggest that there has been substantial infractions by the respondent since the hearing in January 2012, (although of course there was the very unpleasant incident in December 2012).
The matter has not been the subject of argument because Mr Butler was unrepresented and because Mr Clemesha did not participate in a proceeding at all. Looked at overall, the emphasis in s.18C of the Racial Discrimination Act 1975 is to prevent this sort of “abusive, unlawful behaviour that occurs otherwise than in private.” While the matter is clearly open to argument, I will go no further for these purposes than to say that in the circumstances described there would be a real issue as to whether or not the matters of which Mr Butler quite justifiably complains took place in private. I think that his case would face considerable difficulties in this regard.
There is a further nuance to the matter. This sort of appalling behaviour is, in substance, a dispute between two neighbours who clearly do not like each other. This sort of controversy is really almost beyond curial relief. The Court plainly has power pursuant to s.46PO(4) to make an order that a person who has committed unlawful discrimination, not to repeat or continue such conduct.
In the context of a dispute between people who communicate over their fence between their properties this kind of injunctive restraint is attended by various obvious difficulties of supervision. There would be real issues as to whether the order that Mr Butler seeks is one that the Court should make given the apparent need for constant supervision.
Clearly, of course, the Court would have power to make an award of damages in Mr Butler’s favour and if the matter proceeded to final judgment on the facts as he asserts he would, in my view, be entitled to an award of damages. Nonetheless, it should be noted that damages were in no possible sense Mr Butler’s primary remedy. He made it very clear that what he really wanted was the lifetime injunction to restrain the respondent. He only acceded to the possibility of an award of damages with obviously reluctance and with a general, if I may say so, lack of enthusiasm.
Weighing up all these matters, in my view it is inappropriate to grant Mr Butler the extension of time he seeks. His explanations for the delay are by no means wholly implausible but, equally they are by no means entirely convincing. He has delayed for a long time over the statutory period provided and the prima facie position is that that time limit should be complied with.
I am aware that Mr Butler is self-represented but it seems from his materials that he was well aware of the time limit and had no difficulty in filing his complaint when he finally elected to do so. There is nothing to suggest that self-representation has caused the delay in his application.
Bearing in mind my reservations about the explanation for the delay, the prejudice that would undeniably be caused to the respondent if time was extended in these circumstances, and the various difficulties to which I have referred with Mr Butler’s case, it seems to me that the proper exercise of my discretion is to refuse to extend time.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate:

Date: 11 July 2013

[2013] FCCA 722

11 July 2013

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