Casey v Rebel Sport Ltd
[2017] FCCA 1470
•3 July 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CASEY v REBEL SPORT LTD & ANOR | [2017] FCCA 1470 |
| Catchwords: PRACTICE & PROCEDURE – Application for an extension of time to make a competent application to the Court – consideration of factors – application refused. |
| Legislation: Australian Human Rights Commission Act 1986 (Cth), s.46PO Sex Discrimination Act 1984 (Cth), ss.28A, 28B |
| Cases cited: Ferrus v Qantas Airways Ltd [2006] FCA 812; (2006) 155 IR 28 |
| Applicant: | ANNABELLE CASEY |
| First Respondent: | REBEL SPORT LTD |
| Second Respondent: | JOEL MERVYN-JONES |
| File Number: | SYG 147 of 2017 |
| Judgment of: | Judge Nicholls |
| Hearing date: | Matter decided on the papers |
| Date of Last Submission: | 28 April 2017 |
| Delivered at: | Sydney |
| Delivered on: | 3 July 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Viney as agent for Tony Cox Lawyers |
| Solicitors for the First Respondent: | FCB Lawyers and Consultants |
| Counsel for the First Respondent: | Ms K Edwards |
| Second Respondent: | No appearance |
ORDERS
The application for an extension of time made on 17 January 2017 is refused.
There be no order as to costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 147 of 2017
| ANNABELLE CASEY |
Applicant
And
| REBEL SPORT LTD |
First Respondent
| JOEL MERVYN-JONES |
Second Respondent
REASONS FOR JUDGMENT
On 17 January 2017, Ms Annabelle Casey lodged with the Court’s Registry, through her solicitors, an application said to have been made pursuant to s.46PO of the Australian Human Rights Commission Act 1986 (Cth) (“AHRC Act”). That application sought to allege breaches of the Sex Discrimination Act 1984 (Cth) (“SDA”) by Rebel Sport Ltd (“the first respondent”) (by whom she was formerly employed), and a Mr Joel Mervyn-Jones (“the second respondent”) (an employee of that company at the relevant time).
Ms Casey had made a complaint to the Australian Human Rights Commission (“AHRC”) in March 2016. The AHRC terminated that complaint, and issued a certificate of termination dated 25 October 2016. There is no dispute between the parties that pursuant to s.46PO(2) of the AHRC Act, any application made pursuant to s.46PO of the AHRC Act must be made to the Court within 60 days of the date of the certificate of termination.
In the current case, no competent application was made within that statutory time limit. That is, no application was made on or before 28 December 2016 (see [4] and footnote 6 of the first respondent’s written submissions filed on 10 March 2017). Other than for the relevant statutory time limit, the application would have met the requirements to make it competent. However it was said not to have been sent to the Court’s Registry until on or about 12 January 2017. The date of filing of the application on the Court’s record is 17 January 2017.
Ms Casey has now sought, pursuant to s.46PO(2) of the AHRC Act, that the Court make an order allowing her “further time” until 17 January 2017, such as to make her application competent. The first respondent opposes the making of such an order.
The matter first came before the Court on 8 February 2017. On that occasion, Ms Casey was represented by Mr Viney as agent for Mr Cox, the solicitor on the record, and the first respondent was represented by a solicitor. There was no appearance by or on behalf of the second respondent. In this light, orders were made in relation to the applicant and the first respondent for the filing of evidence and written submissions in relation to the application for an extension of time. The matter was listed for further directions on 29 March 2017.
At the Court event on 29 March 2017, the applicant was again represented by Mr Viney as agent for Mr Cox and the first respondent was represented by counsel. There was no appearance by or on behalf of the second respondent. However, I was satisfied, based on the evidence, that the second respondent had been served with a notice of these proceedings (see the affidavit of service of Rodney Smith, Licensed Process Server, made on 16 March 2017 filed by the applicant on 20 March 2017). His failure to respond and participate (as the first respondent has done), remains unexplained.
While the Court heard some arguments from the parties on this occasion, it was proposed and agreed by the parties that the Court decide the question of the extension of time “on the papers”, in light of further written submissions to be filed by the parties. The Court then made orders for the filing of those further written submissions.
In this light, in addition to the affidavit of Mr Anthony Patrick Cox, Solicitor, of 20 February 2017 (read subject to [7] which was admitted on the basis that it was Mr Cox’s best understanding), the following written submissions were ultimately before the Court. For the applicant, the written submissions of 20 February 2017, 11 April 2017 and 28 April 2017. For the first respondent, written submissions of 10 March 2017 and 27 April 2017. I note that the applicant’s written submissions of 28 April 2017 are out of time, as are the first respondent’s written submissions of 27 April 2017, but they are before the Court.
The parties agreed, for current purposes, that the principles relevant to the exercise of the Court’s discretion to extend time pursuant to s.46PO(2) of the AHRC Act, are those summarised in Ferrus v Qantas Airways Ltd [2006] FCA 812; (2006) 155 IR 28 at [19] – [20] per Collier J (“Ferrus”) (see also the reference in Ferrus at [19] to Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 per Wilcox J and Phillips v Australian Girls Choir [2001] FMCA 109 per McInnis FM (“Phillips”)), and further summarised in Drew v Bates& Anor [2005] FMCA 1221 (“Drew v Bates”) per Phipps FM.
The parties saw the “summary” in Drew v Bates (at [14]) as being reduced to three matters ([2] of the first respondent’s written submissions filed on 10 March 2017) (see also [6] of the applicant’s written submissions filed on 20 February 2017):
“The Respondent agrees that the principles applicable to the exercise of the Court’s discretion to extend time under s 46PO(2) of the Australian Human Rights Commission Act 1986 (Cth) (“AHRCA”) are those summarised in Ferrus and further summarised by Phipps FM in Drew v Bates [2005] FMCA 1221 as three matters:
(a) explanation for delay;
(b) any prejudice to the respondent; and
(c) whether the applicant has an arguable case.”
[Footnotes omitted.]
I should note that I do not respectfully understand the authorities to seek to limit the scope of the exercise of the Court’s discretion to considering only the three matters highlighted above at [10]. The relevant legislation speaks of “such further time as the Court concerned allows” (s.46PO(2) of the AHRC Act).
In my respectful view, in the circumstances, the relevant matters for consideration are non-exhaustive, shaped in each case by the relevant circumstances, and “limited” only to the “usual” requirement that the Court act judicially and reasonably.
This is illustrated by the first respondent’s submissions which make reference to Low v Commonwealth of Australia [2001] FCA 702 per Marshall J (“Low”) (at [11]), following a similar approach to that in Ferrus and Drew v Bates, but “adding an additional factor”, namely, “if it is in the interests of justice that time is allowed” ([3] of the first respondent’s written submissions filed on 10 March 2017). It is of note that Low preceded the judgments in Ferrus and Drew v Bates.
In any event, I respectfully understand what was said by the Court in Low to reflect the requirement that the Court act judicially and reasonably in the interests of justice.
I would further add that the “summary” of the relevant factors (see above at [10]) on which both parties now say they rely, must be understood in the context of the circumstances of those cases which gave rise to the “summary”, and the relevant analysis.
For example, I do not understand the first item of the “summary” in Drew v Bates (“explanation for delay” (at [14])) to mean that the mere fact of providing some explanation is sufficient to weigh in favour of the exercise of the Court’s discretion.
Rather, as was made clear, in my respectful view, in Ferrus and Phillips, what is required is an assessment of the adequacy of the explanation for the delay. That is, whether the explanation adequately and reasonably explains the delay.
I would further add that in this context, the length of the delay is important and whether the explanation reasonably explains all of the period of the delay in the circumstances presented.
However, notwithstanding the “agreement” between the parties as to the three matters relevant to the exercise of the Court’s discretion, both parties agreed that in the absence of any prejudice to the first respondent as a result of the delay, the key issue in this case is the merits of the proposed substantive application.
In this context there was also no dispute that the “mere absence of prejudice is not enough to justify the grant of an extension” of time (Ferrus at [19]) (see also Hunter Valley Developments v Cohen [1984] FCA 176; (1984) 3 FCR 344).
As to the merits of the proposed substantive application, Ms Casey’s initial argument was as follows. Ms Casey alleges breaches of the SDA which concern activities (described as “misconduct” see [10] of the applicant’s written submissions filed on 20 February 2017), by the second respondent, involving the applicant, in the workplace of the first respondent. The applicant and the second respondent were employed by the first respondent. Ms Casey was aged between 14 and 16 years at the relevant time, and alleges she suffered psychological injury as a result of the conduct of the second respondent, and for which the first respondent had vicarious liability (see [10] of the applicant’s submissions filed on 20 February 2017).
Some detail was provided in the application to the Court which annexed, amongst other things, a statement made by the applicant in support of her complaint to the AHRC. The first respondent was correct in my view, to submit that the applicant’s first written submissions (filed on 20 February 2017) were not sufficient, in this case, to discharge the onus upon her to reveal that the proposed application has such merit, such that the required “further time” should be allowed.
It is the case, as the applicant subsequently submitted, that at this time, given that no “full investigation into the facts matters and circumstances of the case” has taken place, the applicant does not have to make out her case ([4] of the applicant’s written submissions filed on 11 April 2017).
However, this was not what the first respondent expected of the applicant, or put against her. The question for current consideration, is whether the application raises an arguable case in the context of the relief that the applicant seeks.
The applicant’s second written submissions (filed on 11 April 2017) set out what are said to be the facts in relation to the allegations of sexual harassment by the second respondent toward the applicant, including the allegation that he made “unwelcome sexual advances” and requests for sexual favours towards her (see [6] of the applicant’s written submissions filed on 11 April 2017).
In those submissions, references are made to matters raised in the applicant’s statement to the AHRC ([7] of the applicant’s written submissions filed on 11 April 2017). References are also made to the legislation relevant to the meaning of “sexual harassment”, to some asserted facts as to the alleged vicarious liability of the first respondent, and the damages sought by the applicant (see [9] – [28] of the applicant’s written submissions filed on 11 April 2017).
What must be said about the applicant’s first and second written submissions (filed on 20 February 2017 and 11 April 2017) is, with respect, a failure to understand that mere assertions that the facts set out in the application satisfy the test for sexual harassment (with reference to s.28A and s.28B of the SDA), are insufficient to satisfy the requirement that the applicant show that an arguable case is raised in relation to the matter of unlawful harassment on the grounds of sex.
The first respondent “concedes” that the applicant’s second written submissions (filed 11 April 2017) do reveal an arguable case for vicarious liability (in relation to the first respondent) for current purposes (see [7] of the first respondent’s written submissions filed 27 April 2017).
The first respondent further concedes that the applicant is not, given the operation of s.46PO of the AHRC Act, required to prove an arguable case for damages ([8] of the first respondent’s written submissions filed on 27 April 2017).
What is left however is of critical importance for current purposes. The applicant is still required, with reference to ss.28A and 28B of the SDA, which contain the relevant legal test, to show an arguable case in relation to each part, or limb, of that test.
In its second written submissions (filed on 27 April 2017), the first respondent has correctly, in my view, set out the task regarding what the applicant is required to do to show that she has an arguable case, as follows ([3] of the first respondent’s written submissions filed on 27 April 2017):
“In that context, it is not a matter for the Court to determine how or which of the facts as set out in the Application show the Applicant has an arguable case. The Applicant must set out what she considers to be the legal test and then show how the facts and matters set out in the Application meet that test. That would include proper reference to the relevant parts of the Application inclusive of the Complaint to the Australian Human Rights Commission (“AHRC”) and the statement made by the Applicant and attached to that complaint.”
It is clear from the applicant’s second written submissions that she recognises that her “cause of action” arises in relation to s.28A of the SDA and further, with reference to s.28B of the SDA (see [9] – [12] of the applicant’s written submissions filed on 11 April 2017).
However, the applicant’s first and second written submissions (filed on 20 February 2017 and 11 April 2017) do not adequately, for current purposes, contain an explanation or refer to the basis of a necessary framework of analysis to reveal an arguable case for the relief sought. This omission was explained by the first respondent’s second written submissions filed 27 April 2017 (at [5]) as follows:
“Sections 28A and 28B of the SDA contain the legal test for unlawful harassment on the ground of sex. The Applicant must prove an arguable case in relation to each limb of the test including:
(i) Whether the Applicant is an employee of the First Respondent;
(ii) Whether the Second Respondent, Mr Mervyn-Jones was a fellow employee;
(iii) What conduct is relied upon as giving rise to the claim of sexual harassment;
(iv) Whether the conduct was ‘unwelcome’;
(v) Whether the conduct was ‘of a sexual nature’[1];
(vi) Whether the conduct was ‘in relation to’ the Applicant as required by section 28A(1)(b)[2]; and
(vii) whether a reasonable person, having regard to those circumstances would have anticipated that the Applicant would be offended, humiliated, or intimidated, being a test of the reasonable person in the role of hypothetical observer of the perpetrator’s behaviour rather than in the position of the perpetrator[3].
[1] As set out in O’Callaghan v Loder (1983) 3 NSWLR 89 a decision of District Court Justice Matthews in relation to sexual discrimination (prior to the enactment of the sexual harassment legislation) and approved in Re Susan Hall; Dianne Susan Oliver and Karyn Reid v A & A Sheiban Pty Ltd; Dr Atallah Sheiban and Human Rights and Equal Opportunity Commission [1989] FCA 72; 20 FCR 217 (15 March 1989) (“Hall”) at paragraph [64], a decision of Lockhart, Wilcox and French JJ.
[2] Set out in Carter v Linuki Pty Limited [2005] NSWADTAP 40 (“Carter”) at paragraph [15] a decision of Judicial Member Rice S and Members Monaghan-Nagle L and Mooney L.
[3] As relied upon by Justice Branson in Leslie v Graham [2002] FCA 32 (“Leslie”) at paragraph [70]. This case was followed in South Pacific Resort Hotels Pty Ltd v Trainor (2005) 144 FCR 402, [2005] FCAFC 130, [2006] ALMD 414, [2006] ALMD 417, [2006] ALMD 70, a decision of Black CJ, Tamberlain and Kiefel JJ.
Nor do the applicant’s third written submissions filed on 28 April 2017 make any satisfactory attempt to explain any arguable case the applicant may have. Repeated and even emphatic assertions as for example at [3] of the applicant’s third written submissions (filed on 28 April 2017), of what the applicant says she was subjected to, do not satisfy the requirement that the applicant establish (not on a final basis) an arguable case in relation to the SDA, which is the basis for her case in law.
The applicant’s approach to the relevant issue before the Court now, across her three written submissions and oral submissions before the Court, is essentially that she has made certain allegations and the Court should see that the allegations speak for themselves in establishing an arguable case.
Plainly this case has not reached a final hearing. The applicant is therefore not required to do the work necessary to establish that a case can be made out. But this does not mean that she is relieved of doing the work and undertaking the tasks necessary to establish that she has an arguable case in relation to the test for unlawful harassment for the purposes of the application for an extension of time which she now seeks.
It is not for the Court to conduct this task for her. In circumstances where the first respondent has plainly set out for her the task required, it is not sufficient for the applicant to merely insist that an arguable case exists, and to ask the Court to draw the necessary inferences as being implicit in what has been presented. An example of this lack of explanation can be seen in relation to the matter of whether the alleged harassment was “unwelcome”.
It is to be remembered that the applicant’s application lacks competence given it was lodged outside the statutorily imposed time limit. The applicant seeks from the Court an exercise of its discretion to extend the time for the making of the substantive application to the Court.
Even if the first respondent does not rely on any argument as to the adequacy of the explanation of the delay, this does not relieve the applicant of the task of setting out the relationships between the alleged facts and each of the factors relevant to ss.28A and 28B of the SDA such as to establish, that is, not to just assert, an arguable case exists.
The application to extend time should be refused. I will make the appropriate order. For the avoidance of doubt this has the consequence that the application sought to be made on 17 January 2017 remains not competent.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 3 July 2017
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