Coombe v Bonney
[2015] FCCA 916
•17 April 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COOMBE v BONNEY & ANOR | [2015] FCCA 916 |
| Catchwords: HUMAN RIGHTS – Sex and disability discrimination – application relates to incidents alleged to have occurred in 2010/2011 – complaint made to Human Rights Commission in June 2014 – complaint terminated on basis of delay – proceedings commenced in this court approximately 3½ years after incidents complained of – consideration of time limits – first respondent seeks permanent stay of proceedings on basis delay prevents him from having a fair hearing – first respondent suffering serious cancer – matters to be considered in granting stay. |
| Legislation: Sex Discrimination Act 1984, ss.14; 28B; 106 Australian Human Rights Commission Act 1986 (Cth), s.46PH; 46PO; |
| Kujundzic v MAS National & Ors [2013] FMCA 8 Baird v Queensland [2005] FCA 1516 Groves v Commissioner of Taxation [2011] FCA 222 Dietrich v The Queen (1992) 177 CLR 292 McMahon v Gould (1982) 1ACLC 98 Hakim (1989) 41A Crim R372 |
| Applicant: | KATHRYN COOMBE |
| First Respondent: | LES BONNEY |
| Second Respondent: | BONNEY WELDING PTY LTD |
| File Number: | ADG 412 of 2014 |
| Judgment of: | Judge Brown |
| Hearing date: | 27 March 2015 |
| Date of Last Submission: | 27 March 2015 |
| Delivered at: | Adelaide |
| Delivered on: | 17 April 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Collett |
| Solicitors for the Applicant: | Johnston Withers |
| Counsel for the Respondents: | In person |
| Solicitors for the Respondents: | Not applicable |
ORDERS
The proceedings instituted on 30 October 2014 be permanently stayed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 412 of 2014
| KATHRYN COOMBE |
Applicant
And
| LES BONNEY |
First Respondent
And
| BONNEY WELDING PTY LTD |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Kathryn Coombe “the applicant” was employed by Bonney Welding Pty Ltd “the company” between 5 October 2010 and 17 May 2011. The first respondent to these proceedings, Les Bonney, is a director of the company.
During her period of employment with the company, the applicant claims that she was the subject of sexual harassment, by Mr Bonney, in contravention of section 28B of the Sex Discrimination Act 1984 (Cth) “the SDA”. In addition she claims that she suffered discrimination on account of her sex, whilst employed by the company, in contravention of section 14 of the SDA.
As Ms Coombe was employed by Bonney Welding Pty Ltd, it is her positon that the company is vicariously liable for the actions of Mr Bonney, pursuant to the provisions of section 106 of the SDA.
Ms Coombe’s application comes before this court as a consequence of the operation of section 46PO of the Australian Human Rights Commission Act 1986 (Cth) “the AHRCA”. This Act establishes the Australian Human Rights Commission, which is charged with inquiring into complaints of unlawful discrimination, on the basis of sex, race, disability and age, pursuant to Commonwealth human rights legislation and the duty to attempt to conciliate such complaints.
On 27 June 2014, Ms Coombe complained to the Australian Human Rights Commission in respect of her allegations that Mr Bonney had sexually harassed her and, on at least two occasions, subjected her to serious assaults of a sexual nature, which arose during the course of her employment with the company.
Pursuant to section 46PH of the AHRCA, the President of the Human Rights Commission has a discretion to terminate a complaint, if satisfied that it was lodged more than twelve months after the alleged incident of unlawful discrimination took place.
On this basis, pursuant to the provisions of section 46PH(1)(b), Ms Jodie Ball, the President’s Delegate, determined to terminate Ms Coombe’s complaint on 3 September 2014. In this context, Ms Ball wrote as follows:
“When considering whether to terminate a complaint under section 46PH(1)(b) of the AHRCA, the type of factors I consider include: the length of delay in lodging the complaint, the reasons for the delay and the impact of the delay on the Commission’s ability to inquire into the complaint.
The Commission received the complaint on 27 June 2014 and the complaint relates to alleged acts that occurred between October and December 2010. Accordingly, the alleged acts occurred at least three and a half years prior to lodgement of the complaint with the Commission. This is a significant delay in making the complaint.”[1]
[1] See letter dated 3 September 2014 from the Australian Human Rights Commission to the applicant’s representative attached to application filed 30 October 2014
Pursuant to section 46PO, upon the termination of a complaint to the Human Rights Commission, the relevant complainant is entitled to apply, to this court or the Federal Court, for a determination as to whether any unlawful discrimination has occurred. This is the course being pursued by the applicant in these proceedings.
As a consequence of the provisions contained in section 46PO(4) of AHRCA, if the court is satisfied that there has been unlawful discrimination, by any respondent named in a relevant application, it is empowered to make a declaration to this effect and make orders to redress any loss or damage suffered by the complainant concerned, including awarding damages.
On 30 October 2014, the applicant lodged such an application in this court against Mr Bonney and the company. She seeks a declaration that she has suffered unlawful discrimination by Mr Bonney and the company. It is her case that her employment with the company was unlawfully terminated and she was sexually harassed during her employment with it.
As a consequence of this alleged discrimination, she seeks financial compensation, in the sum of $123,500.00, for lost wages, as she asserts she has been unable to work for the past two and a half years. In addition, she seeks damages in an amount of $300,000.00 to compensate her for pain and suffering, occasioned to her, as a result of the termination of her employment and what occurred during it.
The grounds of her application are that she has been discriminated against because of her sex and disability, as well as having suffered significant sexual harassment. She has not specified the exact nature of her disability in her application but it would seem that it relates to a psychological disorder, within the definition of disability contained in section 4 of the Disability Discrimination Act 1992 (Cth).
In particular, it would appear to be Ms Coombe’s case that the actions of the first respondent either precipitated or prolonged a drug addiction suffered by her, which has had implications for the applicant’s ability to come to terms with what occurred to her, during the course of her employment with the company and act upon it appropriately and in a timely fashion.
Mr Bonney and the company responded to this claim on 6 February 2015. They have each denied that they have either discriminated against or sexually harassed Ms Coombe in any way whatsoever. As a consequence, they seek the dismissal of the claim against them.
In their response, both respondents seek further particulars of the alleged discrimination suffered by Ms Coombe and details of her alleged disability. Specifically, they seek particulars of Ms Coombe’s methamphetamine use and treatment, from 2007 onwards.
Since the institution of these proceedings, each party has filed a significant number of affidavits. These affidavits have not been subject to any rigorous process of scrutiny through cross-examination of the deponents concerned. In addition, Ms Coombe has prepared her own affidavit material, apparently with the assistance of her sister, Ms Linda Champion, who like the applicant herself, is not legally qualified.
In this context, it needs to be emphasised that nothing as yet has been proved by any of the parties concerned. Notwithstanding this state of affairs, it is necessary for me to outline some of the contested matters which bring the parties to the present point.
In her affidavit material, Ms Coombe has been remarkably candid about her personal difficulties, which she concedes are longstanding. The applicant acknowledges that she has used methamphetamines since she suffered a serious motor vehicle accident in 2007. She also concedes that she regularly self-administered methamphetamines during the period of her employment with the company.
It is Mr Bonney’s position that it will be difficult and prejudicial for him to defend the allegations of unlawful discrimination and harassment, in respect of Ms Coombe, some three and a half years after the incidents complained of are said to have occurred. In addition, Mr Bonney has provided medical evidence, which indicates that his current state of health is deplorable and his prognosis extremely poor.
On these main bases, and some others, Mr Bonney seeks that the court permanently stay Ms Coombe’s application as, in his submission, it is axiomatic in all the circumstances prevailing that he cannot be afforded a fair trial. These proceedings are directed towards the resolution of this preliminary issue.
The proceedings arise because Mr Bonney has sought to stay Ms Coombe’s application, either permanently or for a significant period of time to be specified by the court. Ms Coombe opposes this application. These reasons do not relate to the hearing of Ms Coombe’s principal application.
Background
Pursuant to section 15 of the Federal Circuit Court of Australia Act 1999 (Cth) this court has been conferred with wide powers. Pursuant to the section, the court is empowered to:
“(a) make orders of such kinds, including interlocutory orders, as the Federal Circuit Court of Australia thinks appropriate;
Mr Collet, counsel for the respondents submits that the court’s power to stay proceedings is an incident of its general powers arising under this section. It is his submission that the current proceedings represent an abuse of process.
The applicant vehemently opposes the stay on the basis that it would be an affront to justice to prevent her being able to pursue her legitimate claims of grievance against Mr Bonney and the company and so deny her an opportunity to receive financial redress according to the provisions of both the SDA and the AHRCA.
She concedes that the various matters, about which she currently complains, occurred some years ago. However, she explains the delay by reference to the alleged psychological sequellae of her having been sexually harassed and assaulted by Mr Bonney.
In her affidavit material, Ms Coombe deposes that she was left homeless as a result of the termination of her employment with the company, following which, her methamphetamine addiction became “completely out of control”.
In this state, she asserts she attempted suicide on at least two serious occasions and was hospitalised.[2] In this factual context, Ms Coombe asserts as follows:
“I attest that lodging my claim any sooner was impossible due to the state of my drug addiction, my hellish nightmare with being in the clutches of Rick Bonney, the resulting state of my mental health from the treatment I had to endure from both Les Bonney and Rick Bonney, and the time necessary to somewhat heal from my ordeals.”
[2] See affidavit of the applicant filed 18 March 2015 at paragraph 80
In support of her position, Ms Coombe relies on a brief psychiatric report, dated 5 June 2014, from Dr Blakemore. Dr Blakemore reports that he examined the applicant on two occasions, in April of 2013 and June of 2014. He opines as follows:
“Ms Coombe had suffered severe depression and a post-traumatic stress disorder as a result of a motor vehicle accident in which she had been involved in 2007, and, having been introduced to methamphetamine to help her depression, had become addicted to that drug, and has remained very unwell, as a result, almost up to the present. For the last 12 months Ms Coombe has been in a drug rehabilitation program, after having been very ill indeed, and for the last several years has been in no condition emotionally to pursue any litigation about wrongful dismissal.”[3]
[3] See Ms Coombe’s affidavit filed 18 March 2015 – Exhibit KCC-11
In support of her application, Ms Coombe relies on the following affidavits:
i)An affidavit of herself filed 18 March 2015;
ii)An affidavit of her daughter Kacee Coombe filed 18 March 2015;
iii)An affidavit of her former husband, Daniel Coombe filed 18 March 2015;
iv)An affidavit of her daughter, Marlee Coombe filed 18 March 2015;
v)An affidavit of her daughter Amber Coombe filed 18 March 2015;
vi)An affidavit of Alan Pfeiffer filed 18 March 2015;
vii)An affidavit of John James Stear filed 18 March 2015;
viii)An affidavit of Amanda Hughes filed 18 March 2015; and
ix)An affidavit of Timothy Coombe filed 20 March 2015.
The respondents rely on the following affidavits:
i)An affidavit of Les Bonney filed 6 February 2015;
ii)An affidavit of Richard Bonney, the brother of the first respondent and a director of the company, filed 6 February 2015;
iii)An affidavit of Cara Bonney, the daughter of the first respondent, filed 6 February 2015; and
iv)An affidavit of Graham Harbord, the respondent’s solicitor, filed 6 February 2015.
In addition, I have been provided with medical reports from Dr Tony Michele, who is described as a medical oncologist and Dr Wendy Barsdell, who is described as a clinical neuropsychologist.
From the affidavit material, it is possible to delineate the major factual issues in dispute between the applicant and the first respondent, Mr Bonney. It is accurate to describe the parties as having diametrically opposing views as to what occurred between them, both before and after Ms Coombe was employed by the company.
The applicant and first respondent are a similar age. The former being born on 1 March 1969 and the latter being born on 8 October 1970. The first issue of controversy concerns what happened on Ms Coombe’s fortieth birthday on 8 October 2010, which occurred very shortly after she had commenced employment with the company.
It is common ground between the applicant and the first respondent that they were neighbours in their late teenage years. They engaged in a brief sexual relationship with one another at this time, but both went on to form longstanding relationships with other people and to have children with their respective partners.
As previously indicated, the applicant sustained significant injuries, in a motor vehicle accident, which occurred in 2007. As a consequence of her injuries, Ms Coombe lost her employment and her marriage broke down.
As Dr Blakemore reports, in these circumstances, Ms Coombe was introduced to methamphetamines as a means of ameliorating depression and other significant stressors which arose, in her life, at the time of her accident and following. Ms Coombe and Mr Bonney agree that they met fortuitously at a hotel, at some time in 2010.
At the time, Mr Bonney was also confronting personal difficulties. He had been diagnosed with rectal cancer in 2008, which had metastasized to his liver in 2010. His relationship, with his partner, had also fallen into difficulties. Against this background, the parties resumed some form of relationship, although they currently dispute its actual nature.
What is however agreed is that on 2 October 2010, Mr Bonney offered Ms Coombe a position, as a bookkeeper, at the company. Ms Coombe asserts that Mr Bonney made it clear to her, at the time that he was strongly attracted to her. Mr Bonney asserts that Ms Coombe was flirting with him and requested a position at the company, to which he agreed because he felt sorry for her because of the difficult situation she faced as a consequence of her car accident.
Regardless of this controversy, it is clear that Ms Coombe commenced work at the company, as a bookkeeper, in early October of 2010, although she herself had little employment experience in this area.
The applicant acknowledges that she asked Mr Bonney to attend a social occasion to celebrate her fortieth birthday at the Brahma Lodge Hotel, as she was grateful to him for giving her the opportunity of a job. Mr Bonney accepted the invitation and attended the hotel.
What allegedly occurred at the hotel and afterwards is the subject of Ms Coombe’s first major allegation of sexual harassment. She acknowledges self-administering some methamphetamine prior to the party. She asserts that she did so to enhance her enjoyment of the occasion and because one of the effects of the drug was to reduce any desire, on her part, to consume alcohol. It is also her evidence that she had never previously experienced any loss of consciousness as a consequence of methamphetamine use.[4]
[4] See applicant’s affidavit at paragraphs 22
During the party, Ms Coombe asserts that she was subject to unwanted advances from Mr Bonney, who purchased her at least one drink. She deposes that she can remember a significant proportion of the evening but has no recollection of how she got home. She deposes that she woke up the next morning half naked in bed, at her home, and was told by others that she and Mr Bonney had been driven there together.
Against this background, Ms Coombe asserts that the only logical explanation for her condition is that Mr Bonney must have spiked her drink and thereafter subjected her to date rape. Several of the witnesses, relied upon by the applicant, were present at the fortieth birthday celebrations.
They confirm evidence that indicates Ms Coombe was apparently severely intoxicated, by some substance and was in a bad state but are not in a position to depose definitively as to why this was so and what specifically happened in Ms Coombe’s home afterwards.
Mr Bonney’s evidence, in respect of the Brahma Lodge Hotel allegation, is that Ms Coombe passed out through having too much to drink.[5] He asserts that he, with another person, Adrian Gibbs, took Ms Coombe home. As she was in no position to put herself to bed, he asserts that he and Mr Gibbs put Ms Coombe into her bed, after removing some of her clothing. Neither party has called evidence from Mr Gibbs in respect of this matter.
[5] See Mr Bonney’s affidavit filed 6 February 2015 at paragraph 25
If what Ms Coombe asserts is true, potentially she was the victim of a number of serious criminal offences as a consequence of what happened at her birthday celebrations. These include rape; indecent assault; and spiking of food or beverages.
These are all crimes proscribed by the Criminal Law Consolidation Act 1985 (SA) and attract penalties of up to life imprisonment. Ms Coombe concedes that she has not made any report to the police about her allegations and does not intend to do so.
This is because, as a child, she was subject to serious sexual abuse, which resulted in criminal proceedings against her abuser. The criminal proceedings were protracted and, from her perspective, the outcome unsatisfactory. In these circumstances, she has no confidence that the criminal justice system will bring her redress so far as her complaints against Mr Bonney are concerned.
Ms Coombe attended at work, at the company, the Monday following her birthday celebration. She asserts that thereafter she was subject to unwanted sexual advances from Mr Bonney. For his part, Mr Bonney asserts that he and Ms Coombe commenced a consensual sexual relationship from mid-October 2010 onwards. It is his position that this relationship ended at the beginning of January 2011, shortly after which Ms Coombe commenced a sexual relationship with his brother, Mr Richard Bonney.
Ms Coombe complains that she was the victim of a further drug spiking incident, which resulted in a further sexual assault upon her person, following the company Christmas party in December of 2010. On this occasion, Ms Coombe again confirms that she took some “meth as it was a party” but asserts that she was able to keep the effects of the drug hidden from those around her.
Once again, after having what she asserts is no more than three alcoholic drinks, Ms Coombe deposes that she lost consciousness and found herself late the next day awake and naked in Mr Les Bonney’s bed. As a consequence of this chain of events, Ms Coombe asserts that the only logical explanation for her loss of consciousness is that Mr Bonney tampered with her drink or food in order to sexually assault her.
It is the incidents of October and December 2010, which apparently formed the basis of the original complaint to the Australian Human Rights Commission.[6] Ms Coombe is not in a position to provide any corroborative evidence to support her assertion that Mr Bonney again spiked her drink or food in order to take sexual advantage of her. However, she asserts that an unknown person has contacted her via Facebook and indicated that Mr Bonney was continually sexually groping her.
[6] See Ms Ball’s termination letter of 3 September 2014
As with the allegation of October 2010, what occurred in December of that year, if true, is capable of sustaining a number of serious criminal charges. Ms Coombe has not made a complaint to the police in respect of this incident either and again has no intention of doing so.
Ms Coombe confirms that she continued to work at the company following the Christmas party but felt overborn emotionally there as a consequence of what had allegedly happened to her. As such, she asserts that she was not emotionally able to deal with what had occurred to her, because of her mental fragility.
She does concede that she formed a relationship with Mr Richard Bonney in the early part of 2011. Ms Coombe asserts that she agreed to Mr Richard Bonney’s advances in order to escape the attentions of Mr Les Bonney, at the suggestion of Richard Bonney.
She further alleges that Mr Richard Bonney supplied her with methamphetamines, including at the workplace. Again, these allegations have not been the subject of complaint to police. In addition they were not the subject of any formal complaint to the Australian Human Rights Commission. Although he is a director of the company concerned, Mr Richard Bonney is not a personal respondent in the current proceedings.
Mr Richard Bonney does not dispute that he had a sexual relationship with Ms Coombe but asserts that it occurred at her instigation. Cara Bonney was an employee of the business during much of the time Ms Coombe was employed there. It is her evidence that Ms Coombe struggled with her bookkeeping responsibilities. In this context, she asserts that in March or April of 2011, she examined the books of the company and discovered significant irregularities therein.
It is the evidence of Les and Richard Bonney that Ms Coombe expropriated the sum of approximately $55,000 from the company and a related entity Direct Connections Safety Pty Ltd. They assert that, as a consequence of the discovery of this misappropriation, Ms Coombe’s employment with the company was terminated summarily on 17 May 2011.
In a statement annexed to her affidavit, the applicant has asserted that she was given verbal permission by the first respondent to use the company credit card, if she ever found herself short of money. She also asserts that it was part of the culture of the company for the directors of the company and their partners to use company funds for their own use and, at relevant times, she was the love interest of either Les or Richard Bonney.[7] Accordingly, there seems to be a tacit admission that the applicant utilised company funds for her own purposes, albeit with the acquiescence of two of its directors.
[7] See Annexure KCC 5 to the applicant’s affidavit filed 18 March 2015
Ms Coombe agrees that she was escorted from the premises of the company, on 17 May 2011, but alleges that she continued to work for it from Mr Richard Bonney’s home. From this date until late 2012, Mr Richard Bonney accepts that some form of relationship continued between him and Ms Coombe. However, he denies that she continued to work for the company from his home. He asserts that he has had no direct dealings with Ms Coombe since late 2012.
It was anticipated by Ms Coombe that her personal injuries claim would be settled at some time in 2012/2013 and she would receive a significant sum of money. She has indicated to the court that members of her family were greatly concerned at the prospect of her coming into a large sum of money, given their perception that she continued to struggle with a methamphetamine addiction.
In these circumstances, some form of application was made to pay Ms Coombe’s award of damages into the suitor’s fund administered by the Master of the District Court of South Australia. I am uncertain who made the application and what was the extent of any award of damages made in Ms Coombe’s favour. It is clear however that monies were paid into court on Ms Coombe’s behalf.
In March of 2012, the solicitor for the company and Direct Connection Safety Pty Ltd prepared an irrevocable authority directed to Ms Coombe’s solicitors in her motor vehicle accident damages claim. The authority also contains an acknowledgement that Ms Coombe is indebted to the two companies in the sum of $55,000.00.
The authority appears to have been executed by the applicant and bears the date of 12 March 2012. It directs the solicitors to pay the sum in question from any settlement received by Ms Coombe as a consequence of her motor vehicle accident. The authority was presented to the Master of the District Court, who queried it in correspondence from his clerk directed to Ms Coombe in April 2014.
The applicant’s position is that the irrevocable authority is a forgery. It would appear to be the case that it has not been honoured. In these circumstances, it seems that the company has threatened proceedings against Ms Coombe to recover the monies alleged to be due to it and Direct Connections Safety Pty Ltd. It is the submission of Mr Collett that there is a connection between Ms Coombe’s institution of the current proceedings and the threat of the company to recover its alleged debt from her.
What is clear is that there is a tangled skein of allegation and counter allegation in the current matter in respect of events which occurred approximately three years ago and which are largely uncorroborated by documentary or independent sources. As such, any findings required to be made at final hearing will turn on findings of credit by the court. The central witnesses in the case being Ms Coombe on the one hand and Mr Les Bonney on the other.
The evidence regarding Mr Les Bonney’s health
Dr Michele, in a report dated 24 March 2015, indicates that Mr Les Bonney was diagnosed with rectal cancer in 2008. He relapsed with a liver metastasis in 2010 and later, in July 2011, with a metastatic adenocarcinoma of the right lower lobe of his lung.
More recently again, he has developed brain metastases. As a result of these various cancers, he has undergone surgery and chemo/radiotherapy. In his report, dated 24 March 2015, Dr Michele writes as follows:
“His prognosis from this point is now poor given recurrence within the brain and the fact that he has now developed an obstruction to the right upper lobe bronchus causing collapse of his right upper lobe”[8]
[8] See exhibit B
In his submissions to the court, Mr Collett advised that he had been instructed by relatives of Mr Bonney that it is the opinion of Dr Michele that Mr Bonney’s condition is terminal. However, I have been provided with no exact prognosis, in this regard and, indeed, have not been advised whether it is feasible for such an estimate to be given. I accept however Mr Bonney is extremely ill and his life expectancy limited.
In his somewhat terse report, Dr Michele characterises as Mr Bonney as currently suffering from memory impairment. In this context, it is Dr Michele’s opinion that Mr Bonney has difficulty in concentrating and would not be fit enough to attend a court case.[9] Given Mr Bonney’s poor prognosis, it seems unlikely that his memory difficulties will ever improve.
[9] See report of Dr Michele dated 2 February 2015 being exhibit A
Mr Bonney was admitted to the Royal Adelaide Hospital on 8 February 2015 as a consequence of suffering scalds to his upper body following a mishap in the shower. In this context, nursing staff noted that he had difficulty providing a history of his medical difficulties and it was considered necessary to obtain a full neuropsychological assessment.
This assessment was carried out by Dr Wendy Barsdell on 26 February 2015.[10] She considered that Mr Bonney presented with impaired executive functioning. She also considered that he had poor attentional control and any interlocutor should avoid putting abstract or complex questions to him. In this context, she opined that Mr Bonney would have difficulty retrieving information from his memory and will require prompting by others.
[10] See exhibit C
Clearly, in the context of a final hearing, counsel for Mr Bonney would not ordinarily be permitted to prompt Mr Bonney, whilst eliciting evidence from him. In my view, considerations of this kind are germane given the extreme dichotomy in the evidence of Mr Bonney on the one hand and Ms Coombe on the other.
If the case proceeds, necessarily the court will be called to rule on whether it prefers the evidence of Ms Coombe to that of Mr Bonney and vice and versa. On the evidence of Dr Michele and Dr Barsdell, Mr Bonney is likely to be at a significant disadvantage in such a process.
Mr Harbord, Mr Bonney’s solicitor, has deposed that he holds serious concerns about Mr Bonney’s capacity to take part in a court hearing in which he is a party. I appreciate that Mr Harbord is not qualified to provide any medical opinion, but, in my view, his view as to the capacity of Mr Bonney to instruct him adequately is a matter to which I can have regard.
Ms Coombe counters these submissions by pointing out that Mr Bonney has been able to prepare and depose a not insignificant affidavit setting out his perspective on what occurred whilst he and Ms Coombe were involved with one another. This is a valid point indeed.
The time limit
Ms Coombe commenced these proceedings on 30 October 2014. Although it is her case that she remained involved with the company, following her apparent dismissal on 17 May 2011, she does not appear to assert that she was subject to any unlawful discrimination following this latter date. Accordingly, a period of three years and five months has elapsed between her alleged cause of action and the institution of the proceedings concerned.
The legal considerations surrounding whether there is or is not an applicable time limit to applications of the current category are problematic. There is no specific time limit created by the AHRCA other than that the President has a discretion to terminate a complaint lodged more than twelve months after the alleged instant of unlawful discrimination took place. Thereafter, pursuant to section 46PO a more modest time limit of sixty days is stipulated for the issue of proceedings in this court, which may be extended if the court deems it appropriate.
Sections 79 and 80 of the Judiciary Act 1903 (Cth) deal with the application of state legislation to situations where there is a deficiency or lacunae regarding the application of any relevant Commonwealth provision. The provisions read as follows:
79 State or Territory laws to govern where applicable
(1) The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.
…
80 Common law to govern
So far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient to carry them into effect, or to provide adequate remedies or punishment, the common law in Australia as modified by the Constitution and by the statute law in force in the State or Territory in which the Court in which the jurisdiction is exercised is held shall, so far as it is applicable and not inconsistent with the Constitution and the laws of the Commonwealth, govern all Courts exercising federal jurisdiction in the exercise of their jurisdiction in civil and criminal matters.
Pursuant to section 36 of the Limitation of Actions Act 1936 (SA) any action in which damages are claimed in respect of personal injuries to the person must be commenced within three years after the cause of action claimed accrued. There are no time limits applicable to criminal prosecutions. It being the case that section 72A of the Criminal Law Consolidation Act 1985 (SA) has abolished any limitation period for sexual offences.
Mr Collett does not strongly advocate that the Limitations of Actions Act applies to the current situation. In this context, he drew my attention to what was said by Cameron FM (as he then was) in Kujundzic v MAS National & Ors.[11]
[11] See Kujundzic v MAS National & Ors [2013] FMCA 8
In that case Cameron FM considered that he was bound by what was said by Dowsett J in Baird v Queensland[12] where His Honour observed that although the Racial Discrimination Act made discriminatory conduct based on race unlawful, the right to redress for such conduct arose not in that Act itself, but rather as a consequence of section 46PO of what is now the AHRCA.
[12] See Baird v Queensland [2005] FCA 1516
Cameron FM noted that the other Commonwealth anti-discrimination acts were similar to the Racial Discrimination Act. In this context, Cameron FM noted as follows:
“As s.46PO sets out the elements of a cause of action based on unlawful discrimination there is no cause of action for unlawful discrimination except in accordance with its terms. Relevantly that means that if the present applicant has a cause of action based on alleged unlawful discrimination, it accrued when, according to s.46PO, the last fact necessary to make it out came into existence. That fact was the issuing by the Commission of the notice of termination on 12 April 2012.”[13]
[13] Ibid at paragraph 38
As a consequence of these matters, in my view, any application of the South Australian limitation periods, possibly arising out of the provisions of the Judiciary Act are relevant only from 3 September 2014, the date on which Ms Ball terminated Ms Coombe’s complaint to the Human Rights Commission. Accordingly, I find that Ms Coombe’s application is not statute barred as a consequence of any state based limitation.
However, notwithstanding this finding, it is the submission of the respondent that the discretion residing in the President of the Human Rights Commission to terminate a complaint made more than twelve months following the incident concerned and thereafter the limited time of sixty days in which to bring a complaint to the court are relevant to how I should exercise my inherent jurisdiction to stay proceedings in the overall interests of justice.
Considerations relevant to granting a stay
I accept Mr Collett’s submission that section 15 of the Federal Circuit Court Act confers the court with a wide general power to control its only proceedings. As such, I accept that the court has a discretion to grant either a permanent or defined stay of proceedings on the grounds of abuse of process.[14]
[14] See Groves v Commissioner of Taxation [2011] FCA 222 per Logan J at [22]
This discretion arises if a court considers that a person is not able to participate in court processes to an adequate degree or for some other salient reason a person is unable to be accorded a fair trial or hearing. In such circumstances, the overall interests of justice require that the proceedings concerned be stayed.
In Dietrich v The Queen [15] Gaudron J said as follows:
“The expression "fair trial according to law" is not a tautology. In most cases a trial is fair if conducted according to law, and unfair if not. If our legal processes were perfect that would be so in every case. But the law recognizes that sometimes, despite the best efforts of all concerned, a trial may be unfair even though conducted strictly in accordance with law. Thus, the overriding qualification and universal criterion of fairness…
The requirement of fairness is not only independent, it is intrinsic and inherent… the power to prevent injustice in legal proceedings is necessary and, for that reason, there inheres in the courts such powers as are necessary to ensure that justice is done in every case…
A trial is not necessarily unfair because it is less than perfect but it is unfair if it involves a risk of the accused being improperly convicted. If the only trial that can be had is one that involves a risk of that kind, there can be no trial at all…
[I]t is the duty of the courts to ensure that only fair trials are had, either by tempering the rules and practices to accommodate the case concerned or, if that not be adequate, by staying the prosecution.”
[15] Dietrich v The Queen (1992) 177 CLR 292 at 362 - 4
I appreciate that Dietrich arose in the context of criminal proceedings arising from a serious charge of drug importation. However, it is Mr Collett’s submission that the principles apply to proceedings of the current kind. Essentially, he asserts that Mr Bonney cannot fairly participate in the hearing as the principal defendant, as he is not in a position to contest the allegations made against him because of his illness, particularly because of its implications for his cognitive functioning.
In McMahon v Gould[16] Wootten J of the New South Wales Supreme Court considered that a discretion arose to stay proceedings, in both criminal and civil cases, if such a stay served the overall interests of justice. In the case, Wootten J proposed some guidelines, which were likely to be applicable to how this discretion was to be exercised. They can be summarised as follows:
[16] McMahon v Gould (1982) 1ACLC 98
·prima facie, a plaintiff is entitled to have his or her action tried in the ordinary course of the procedure and business of the court concerned;
·as a consequence, it is a grave matter to interfere with such an entitlement by a stay of proceedings. Such a stay can only be justified on proper grounds;
·the burden is on a defendant, in a civil action, to show that it is just and convenient that a plaintiff’s ordinary rights should be interfered with;
·neither an applicant nor a respondent is entitled, as of right, to have a civil proceedings stayed because of a pending or possible criminal prosecution;
·in considering a stay, the court’s task is one of the balancing of justice between the parties taking into account all relevant factors;
·in this context, each case must be judged on its own merits. As such, it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors;
·in cases where there pending or possible criminal proceedings, it may be relevant to take into account, in any relevant civil proceedings, the fact that an accused person has a right to silence in any later criminal proceedings;
·however, such a right to silence does not automatically give a respondent the same protection as in any contemporaneous civil proceeding;
·the court should consider whether there is a real and not merely notional danger of injustice in any criminal proceedings;
·the detrimental effects on the plaintiff, of either staying or not staying the proceedings, must be considered and weighed against the possible effects on the defendant;
·in appropriate cases, proceedings may be allowed to proceed to a certain stage.
The submissions of the first respondent
Mr Collett submits that there are several factors which justify a permanent stay of the applicant’s proceedings instituted by Ms Coombe. Firstly, as previously indicated, it is contended that the court needs to have regard to the time limit arising from section 46PH(1)(b) of the AHRCA. In this context, Ms Ball considered that she would not be able to undertake a fair inquiry into the allegations initiated by Ms Coombe.
As Mr Collett submits, necessarily over time, memories fade and relevant documents cannot be adduced. In his submissions, these are very relevant considerations when Mr Bonney’s current medical issues are considered. Mr Collett submits that Mr Bonney must be significantly prejudiced, as the Human Rights Commission considered itself to be, in having to confront a serious series of claims against him which occurred over three years ago.
Secondly, Mr Collett submits that two of Ms Coombe’s allegations, against Mr Bonney, relate to actions, which if true, amount to serious criminal offences. In confronting these allegations, in civil proceedings, Mr Bonney will be denied his entitlement to remain silent.
Mr Collett submits that it is fundamentally unfair to Mr Bonney to deprive him of this right, particularly given that Ms Coombe has indicated that she will not report the incidents to police for their investigation. In effect, therefore, Ms Coombe has launched quasi criminal proceedings, against Mr Bonney, but deprived him of essential protections, which would be afforded to him in any criminal process. In Mr Collett’s submission, this is inherently unfair to Mr Bonney.
Thirdly, Mr Collett submits that the evidence clearly indicates that Ms Coombe has been dilatory in bringing her claims against Mr Bonney to light. She has given no explanation for the delay other than her own drug addiction, which she acknowledges arose prior to the incidents complained of, although she does assert that the actions of Mr Bonney exacerbated her condition.
Fourthly, it is Mr Collett’s submission that the court can infer from all the circumstances prevailing that Ms Coombe is motivated by considerations other than personal redress for instituting the relevant proceedings against Mr Bonney. In particular, it is submitted that a more rational explanation for the proceedings is that the company wishes to recover the moneys allegedly expropriated from it by Ms Coombe.
Fifthly, and most significantly, Mr Collett submits that Mr Bonney’s deplorable medical condition renders it contrary to the interests of justice for the case to continue. Essentially, it is submitted that Mr Bonney’s impaired memory will mean that it will be impossible for him to have a fair hearing, particularly when he will be required to confront the allegations of his accuser, who herself is unable to call corroborating evidence in support of her allegations against him.
Mr Collett concedes that it will be a rare case that a respondent’s medical condition dictates that a stay should be granted. However, in his submission, the extent of Mr Bonney’s various ailments and their implications for his level of cognitive functioning are of such moment to justify such a stay, particularly when other considerations are taken into account.
These considerations include the fact that Ms Coombe herself concedes that she has long known that Mr Bonney was suffering from cancer of a significant kind. In addition, in a case involving the assessment of credit, she herself comes to court with a significant cloud hanging over her own credibility.
In this context, Mr Collett points to the fact that Ms Coombe has admitted a significant level of drug use over the course of her employment with the company and in particular on the two occasions when she alleges that she suffered a date rape.
In all these circumstances, Mr Collett submits that Ms Coombe cannot be regarded as a reliable witness and therefore the dangers of Mr Bonney not being accorded a fair hearing must be significantly extenuated.
The applicant’s submissions
Ms Coombe is not legally qualified and submitted that it was difficult for her to make submissions on her own behalf. She sought an order, from the court, which would have allowed her sister, Ms Linda Champion, to be a lay advocate on her behalf.
I declined this application on the basis that Ms Champion, being unqualified, was not covered by legislation governing the conduct of legal practitioners in court and may be at risk of not following her sister’s instructions and might take over the running of the case.
In addition, I did not consider that Ms Coombe was residing under any significant level of difficulty, which prevented her putting any necessary submissions personally to the court. She seemed to me to be reasonably articulate and to understand the relevant issues. I did however allow Ms Champion to sit beside her and to take notes. The two consulted, from time to time, during the course of the hearing.
Ms Coombe’s position can be simply put. It is her case that she has been occasioned great wrong because of the actions of Mr Bonney. As such, it would be gravely unfair to her, if she was not allowed to pursue her various claims against Mr Bonney and those associated with him, particularly the company of which he is a director.
It is her case that she has given a reasonable explanation as to the delay, which arose because of her spiral down into drug addiction, which was part of her reaction to being sexually assaulted. She denies that there is any connection between the current proceedings and the actions of the company to recover funds from her, which she asserts were legitimately obtained by her. As earlier indicated, it is her case that the irrevocable authority, relied on by Mr Bonney and the company, is a forgery.
Conclusions
Mr Bonney has tumours in his brain, bowel, liver, lung and windpipe. He suffers from epilepsy and has sustained multiple pulmonary emboli. His prognosis is extremely poor and will not improve barring medical miracle. On any view, his medical condition is deplorable.
As a consequence of his condition, he suffers memory loss and is likely to experience difficulty answering questions without prompting. In a case which turns on the assessment of credit, following a hiatus of over three and a half years since the events complained of, in my view, he must be at a significant disadvantage as a respondent in the current civil proceedings against him.
The Human Rights Commission, the Commonwealth body charged with overseeing the investigation of breaches of the Sexual Discrimination Act and the Disability Discrimination Act has declined to both investigate and conciliate the claims brought against Mr Bonney because it does not believe it can do so fairly, given the effluxion of time since Ms Coombe’s various complaints arose. In my view, this is a significant matter.
Ms Coombe has waited a significant period of time before bringing her case against Mr Bonney formally. During this period of time, Mr Bonney’s condition has significantly worsened. It will not get better. The only explanation for the delay, proffered by Ms Coombe, is that her pre-existing drug condition worsened.
The prejudice to be occasioned to Ms Coombe, on the one hand, and to Mr Bonney, on the other, by a stay of the proceedings, must be closely considered. In this context, I bear in mind that I am not considering an application for summary dismissal pursuant to the provisions of Rule 13.10 of the Federal Circuit Court Rules 2001. However, in my view, the nature and context of the claim for relief being brought by Ms Coombe, is relevant to the stay application.
The success of Ms Coombe’s claim relies on the court accepting her evidence, particularly the inferences, which she herself has drawn from what transpired at firstly her birthday celebration and then secondly at the Bonney Welding Christmas party of 2010. She herself cannot depose definitively as to why she lost consciousness and what specifically occurred as a consequence.
In addition, her claims of being the subject of unwanted sexual advances, from Mr Bonney, during the period of her employment by the company are uncorroborated and refuted by Mr Bonney. In my view, given the various admissions made by Ms Coombe, her case cannot be regarded as a strong one.
Against this background, in my view, Mr Bonney confronts very significant difficulties in defending the claims against him. These difficulties arise as a consequence of his medical condition and the significant cognitive dysfunction which have arisen as a result.
I accept that Mr Bonney has an impaired memory and will not be able to acquit himself well in either evidence in chief or in cross-examination. As such, in my assessment, there is a very significant risk that any proceedings, in which he is a respondent, cannot be conducted fairly.
Every care may be taken to modify the proceedings to accommodate Mr Bonney’s impairment and ill health but if he cannot take part in proceedings, to utilise Gaudron J’s terminology, there will be no hearing at all and, as such, it would not, in my view, be in the interests of justice to allow such an imperfect hearing to proceed.
I acknowledge that it is a significant thing to deprive Ms Coombe of her entitlement to litigate her claims against Mr Bonney. However, her interests are not the only germane consideration. I must also consider the overall interests of justice, which in my view, are not likely to be served by permitting an unfair trial, particularly given the extremely unusual circumstances of the current matter.
I acknowledge that it will be a rare case in which a respondent’s medical condition will be of such moment to justify a stay of proceedings.[17] The discretion to stay proceedings is an exceptional one, to be used sparingly.
[17] See Hakim (1989) 41A Crim R372
In my view, the parlous state of Mr Bonney’s health, together with the implications arising for his memory, are of sufficient moment to engage the discretion. In my view, this is an exceptional case.
In all the circumstances, I do not think that Mr Bonney will be able to receive a fair hearing, given the time which has elapsed since the complaints arose and given his medical condition and prognosis. In these circumstances, I propose to grant a permanent stay of the proceedings in question.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of Judge Brown
Associate:
Date: 17 April 2015
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