Chircop v Technical and Further Education Commission

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FEDERAL COURT OF AUSTRALIA

Chircop v Technical and Further Education Commission [2022] FCA 1015

File number: NSD 732 of 2021
Judgment of: KATZMANN J
Date of judgment: 1 September 2022
Catchwords: HUMAN RIGHTS — application for extension of time and leave to commence proceedings under s 46PO of the Australian Human Rights Commission Act 1986 (Cth) — where applicant complained to Australian Human Rights Commission of discrimination on the ground of disability — where Australian Human Rights Commission terminated complaint on the basis that an inquiry into the complaint was not warranted in all the circumstances — whether extension of time should be granted — whether applicant’s claims of unlawful discrimination and victimisation are reasonably arguable
Legislation:

Australian Human Rights Commission Act 1986 (Cth) ss 3(1), 46PA, 46PF, 46PH, 46PO, 46PR

Disability Discrimination Act 1992 (Cth) ss 4, 5, 6, 10, 11, 22, 23, 32, 42, 45(1), 123

Evidence Act 1995 (Cth) s 140

Sex Discrimination Act1984 (Cth) s 94

Federal Court Rules 2011 (Cth) rr 8.06, 26.01

Disability Standards for Education 2005 (Cth) §§ 3.4, 5.2, 10.4
Cases cited:

Abela v State of Victoria [2013] FCA 832

Briginshaw v Briginshaw (1938) 60 CLR 336

Budini v Sunnyfield [2019] FCA 2164

Catholic Education Office v Clarke (2004) 138 FCR 121

Chen v Monash University (2016) 244 FCR 424

Commonwealth v Snell (2019) 269 FCR 18

Doyle v Chief of Staff (1982) 71 FLR 56; 42 ALR 283; 4 ALD 636

Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118; 63 AILR ¶101–302

Ferrus v Qantas Airways Limited [2006] FCA 812

Hills Grammar School v Human Rights and Equal Opportunity Commission (2000) 100 FCR 306

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Hurst v Queensland (2006) 151 FCR 562

James v WorkPower Inc [2018] FCA 2083

Jones v Westpac Banking Corporation [2020] FCA 238

Matthews v Markos [2019] FCA 1827

Munday v Commonwealth (No 2) (2014) 226 FCR 199

Owen v Serendipity (WA) Pty Ltd t/as Advanced Personnel Management [2020] FCA 1826

Pathmanathan v St John of God Healthcare Inc [2019] FCA 1460

Penhall‑Jones v State of NSW [2007] FCA 925

Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92

Reurich v Sureway Employment and Training Pty Ltd [2018] FCA 680

Rossi v Qantas Airways Limited (No 2) [2020] FCA 1080

Ryan v Commissioner of Police NSW Police Force [2019] FCA 1607

Sklavos v Australian College of Dermatologists (2017) 256 FCR 247

Stepien v Department of Human Services [2018] FCA 1062

Tang v AHG Services (NSW) Pty Ltd [2011] FCA 1532

Walker v State of Victoria [2012] FCAFC 38

Watersv Public Transport Corporation (1991) 173 CLR 349

Watts v Australian Postal Corporation (2014) 222 FCR 220

Wilson v Britten-Jones (No 2) [2020] FCA 1290
Division: General Division
Registry: New South Wales
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 195
Date of hearing: 6 July 2022
Counsel for the…
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Details
Case
[2022] FCA 1015
Decision Date

CaseChat Overview and Summary

The applicant, Mr Chircop, sought an extension of time and leave to commence proceedings against the Technical and Further Education Commission (TAFE) under section 46PO of the Australian Human Rights Commission Act 1986 (Cth). Mr Chircop alleged discrimination on the ground of disability, including victimisation, by TAFE. The Australian Human Rights Commission had terminated his complaint, finding that an inquiry was not warranted. The court had to decide whether to grant an extension of time and leave to Mr Chircop to pursue his claims in court.

The central legal issue was whether Mr Chircop's claims of unlawful discrimination and victimisation were reasonably arguable. The court considered the merits of Mr Chircop's allegations, the Commission's decision, and the broader implications for the administration of justice. The court found that Mr Chircop's claims lacked sufficient foundation and were either misconceived. The court held that granting leave would not promote the purposes of the civil procedure provisions and would not be in the interests of justice.

The court dismissed Mr Chircop's application for an extension of time and leave to commence proceedings. The court found that Mr Chircop's claims of victimisation were not reasonably arguable. The court also noted that the merits of Mr Chircop's case were the overriding consideration and that granting leave would be contrary to the legislative scheme if the matter were considered to be without any merit. The court refused leave to commence the proceeding and dismissed the originating application, ordering Mr Chircop to pay TAFE's costs.

The interlocutory application filed by the applicant on 22 April 2022 was dismissed. Leave to make an application to the Court under section 46PO of the Australian Human Rights Commission Act 1986 (Cth) was refused. The originating application was dismissed. The applicant was ordered to pay the respondent’s costs.

Orders

Orders of the court

1. The interlocutory application filed by the applicant on 22 April 2022 be dismissed.

2. Leave to make an application to the Court under s 46PO of the Australian Human Rights Commission Act 1986 (Cth) be refused.

3. The originating application be dismissed.

4. The applicant pay the respondent’s costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For the reasons that follow, the interlocutory application should be dismissed and leave to commence the proceeding refused.Background The following is an overview of the allegations and procedural history drawn from Mr Chircop’s second complaint to the Commission and his originating application, together with the other evidence upon which the parties relied. It is necessary to refer in some detail to the claims made by Mr Chircop and the context in which they emerged because the case he seeks to make in his originating application is based on an elaborate sequence of events and a litany of grievances.Alleged discrimination At all relevant times Mr Chircop was a student at TAFE’s Ultimo campus. He was enrolled in a Diploma of Live Production and Technical Services (Costume). The story begins on 4 March 2019. On his account, at around 6 pm that day, Mr Chircop left his evening class to visit the acting head teacher, Sandy Barnett. He confided in Ms Barnett that he was severely depressed and at times did not want to live. During their conversation the phone rang. Ms Barnett told the caller that she would have to call her back because she had “Jono here who’s suicidal”. Although Mr Chircop did not then know it, the evidence indicates that the caller was the Disabilities Coordinator. Mr Chircop was upset about Ms Barnett’s disclosure. In his first complaint to the Commission, he described it as a violation of his privacy. He said that Ms Barnett’s disclosure caused him to have “a non-violent breakdown in an empty classroom”. He burst into tears, expressing his concern to Ms Barnett that he would always be typecast as “Jono who is suicidal”. He then walked into an empty classroom, stood at the windows which he knew “opened wide enough”. Shortly thereafter, Ms Barnett entered the room. She tried to talk him down but was unsuccessful. She then went to “fetch” Mathilde Montredon, one of Mr Chircop’s teachers. Later still security, police, paramedics and others arrived. Mr Chircop claims not to have behaved violently during this incident, but admits to raising his voice (using “high modality to make a point”) and holding up a chair in front of him “to tell a male security guard to leave”. A slightly different account appears in TAFE’s response to the first complaint sent to the Commission on 6 March 2020, apparently based on information provided by Ms Barnett. According to TAFE, Mr Chircop told Ms Barnett that he was going to commit suicide and, when the Disabilities Coordinator happened to ring while he was with her, she passed on that information. This caused Mr Chircop to run out of the room to a nearby window, open the window, and threaten to jump. Out of concern for Mr Chircop’s safety, police, ambulance officers, and TAFE security, were called. Mr Chircop later threw a chair in the direction of the security personnel. Four days after the incident, Mr Chircop received an email from Rachel Elliott, TAFE’s Manager, Services and Customer Stakeholder Relations, seeking a meeting with him before he resumed his studies. Ms Elliott telephoned Mr Chircop in advance of the meeting. According to Mr Chircop, she told him that it related to a “history of violence” and “throwing chairs” but did not provide any further explanation.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 30 March 2021 Mr Chircop was invited by the Commission to provide any further information in support of his complaint. About three weeks later, Mr Chircop provided further information and submitted that having the complaint terminated under s 46PH(1B)(b) of the AHRC Act would be “prudent”.The Commission’s decision On 13 May 2021, a delegate of the President of the Commission terminated Mr Chircop’s second complaint under s 46PF(1)(b) and 46PH(1)(c) of the AHRC Act. Section 46PF relevantly provides:(1)Subject to subsections (1A) and (5), if a complaint is referred to the President under section 46PD, the President must: (a)consider whether to inquire into the complaint, having regard to the matters referred to in section 46PH; and (b)if the President is of the opinion that the complaint should be terminated—terminate the complaint without inquiry; and (c)unless the President terminates the complaint under paragraph (b) or section 46PH—inquire into the complaint and attempt to conciliate the complaint.(1A)For the purposes of paragraph (1)(a), the President may inform himself or herself of such facts and circumstances as are necessary to form the opinion referred to in paragraph (1)(b).…(5) The President may decide not to inquire into the complaint, or, if the President has started inquiring into the complaint, may decide not to continue to inquire into the complaint, if:(a)the President is satisfied that the person aggrieved by the alleged acts, omissions or practices does not want the President to inquire, or to continue to inquire, into the complaint; or(b)the President is satisfied that the complaint has been settled or resolved. Section 46PH(1)(c) relevantly provides:Discretionary termination of complaint(1) The President may terminate a complaint on any of the following grounds:…(c)the President is satisfied, having regard to all the circumstances, that an inquiry, or the continuation of an inquiry, into the complaint is not warranted [.] By s 19, read with s 8, the President may delegate any or all of these powers to another person, provided the other person is not a member of the Commission. In the present case, for the purposes of s 46PH(1)(c), the delegate considered the timing of the allegations, other actions that had been taken and/or other available remedies, and the prospect of a practical outcome or remedy being achieved through the Commission’s processes. The delegate remarked that a significant number of Mr Chircop’s allegations were included in the first complaint. As that complaint had been terminated, the delegate said that it was unclear why Mr Chircop did not take the option available to him under s 46PO(1) of making an application to this Court to pursue the allegations. The delegate noted that, in relation to the allegations of discrimination and victimisation that occurred after the first complaint was finalised, TAFE’s appeal decision advised Mr Chircop that, if he was dissatisfied with the outcome, he could contact the NSW Ombudsman. The delegate stated that it was unclear whether Mr Chircop had elected to do so or whether the option remained open to him.

Ratio Decidendi

Legal Principle Established

For these reasons, I am not satisfied that Mr Chircop’s claims of victimisation are reasonably arguable.Other considerations The parties did not address any of the other permissible considerations listed by Mortimer J in James. Since I have concluded that Mr Chircop does not have a reasonably arguable case, it is not strictly necessary to do so. I would, however, make the following observations. Mr Chircop is understandably aggrieved. His exclusion from TAFE campuses doubtless means it will take (or has taken) him longer to complete his diploma, causing him financial hardship, anguish and humiliation. The whole saga may well have had a deleterious effect on his mental health. The subject matter of his complaint is of importance to him. The Commission did not inquire into the complaint and it appears that TAFE has not attempted to address his allegations outside the Commission process. All these matters would otherwise weigh in favour of a grant of leave. Here, however, the merits of his case are the overriding consideration. As Abraham J remarked in Matthews at [37], “[i]t would be perverse, and contrary to the legislative scheme to grant leave if the matter were considered by a Court to be without any merit”.Conclusion Mr Chircop has made a series of allegations of unlawful discrimination, including victimisation, which are either misconceived or lacking a sufficient foundation. In the circumstances, granting an extension of time to make the application would not be the best way to promote the overarching purposes of the civil practice and procedure provisions. Nor would it be in the interests of the administration of justice to grant leave to do so. Leave to commence the proceeding should therefore be refused and the originating application dismissed. Costs should follow the event. There will be orders accordingly.