Creek v Cairns Post Pty Ltd

[2001] FCA 293

FEDERAL COURT OF AUSTRALIA

Creek v Cairns Post Pty Ltd [2001] FCA 293

PATRICIA DONNA CREEK v CAIRNS POST PTY LTD

Q 4 of 2001

KIEFEL J
BRISBANE
19 MARCH 2001

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 4  OF 2001

BETWEEN:	PATRICIA DONNA CREEK APPLICANT
AND:	CAIRNS POST PTY LTD RESPONDENT
JUDGE:	KIEFEL J
DATE OF ORDER:	19 MARCH 2001
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The applicant be granted an extension of time to 10 January 2001 within which to bring this application.

2.The costs of the extension of time application be reserved.

THE COURT DIRECTS THAT:

3.The respondent file and serve a request for further and better particulars of the application on or before 26 March 2001.

4.The applicant file and serve answers to the request for further and better particulars by 2 April 2001.

5.The applicant provide a list of documents relating to her employment history by 9 April 2001.

6.The respondent file and serve a defence and accompanying affidavit on or before 23 April 2001.

7. The applicant file and serve a reply on or before 30 April 2001.

8.The applicant file and serve any further affidavit material constituting the evidence in-chief of witnesses to be called by the applicant on or before 14 May 2001.

9.The respondent file and serve any further affidavit material constituting the evidence in-chief of witnesses to be called by the respondent on or before 28 May 2001.

10.The applicant file and serve any affidavits in reply by 4 June 2001.

11.The applicant file and serve her outline of submissions by 2 July 2001.

12. The respondent file and serve its outline of submissions by 5 July 2001.

13.The matter be set down for trial on Monday 9 July 2001 at 10.15 am for half a day.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 4  OF 2001

BETWEEN:	PATRICIA DONNA CREEK APPLICANT
AND:	CAIRNS POST PTY LTD RESPONDENT

JUDGE:	KIEFEL J
DATE:	19 MARCH 2001
PLACE:	BRISBANE

REASONS FOR JUDGMENT
EX TEMPORE

1. On 30 July 1997 the article and the photographs about which the complainant complains were published.  Defamation proceedings were filed on 21 July in the following year.  Although they have not been proceeded with they would appear to be still on foot.  They are now  subject to a procedural requirement for leave to continue with them.  A complaint was also filed with Human Rights and Equal Opportunity Commission in early 1999, as best I can estimate.  An extension of time was allowed by the Commission subsequent to the complaint being filed.

2. It seems to me that the focus of the present application for an extension of time for the filing of the application in this Court is the period following the automatic termination of the matter in the Commission.  That date was 13 April 2000.  The applicant then had until 11 May 2000 to bring her application in this Court under the provisions of the Human Rights and Equal Opportunity Commission Act 1986. The delays which had been encountered and the matters considered with respect to the extension already granted would now seem to me to be relevant only to the question of possible prejudice to the respondent by reason of the time which has passed.

3. The applicant has offered some explanation of the delays in having the matter filed.  Mr Bradshaw, a family friend and lawyer in Townsville, had organised for the material to be filed by her in support of the application within time, but it was not.  The applicant says she received the material in early May 2000 but did not have the documents witnessed until 15 May 2000. There are indications of problems in having them witnessed.  It must be said that at that point, whilst there was some delay, it could not have been regarded as great.

4. From 15 May 2000 the applicant says there were difficulties encountered with respect to having the material put in order and the Registry requiring an application for an extension of time to be filed.  There was some confusion about what needed to be done with the documents and this, combined with a lack of a legal support service in the remote town of Coen, produced further delays.  The applicant was required to re-file the material and seek an extension of time.  The applicant attempted to do so on 22 May and again in June.  Mr Bradshaw refers to the difficulties in explaining problems with the material over the telephone with the applicant. 

5. When the first attempt to file in this Court was undertaken, it could not have been said that the delay was great, and this is of course, strongly indicative of the applicant’s consistent approach to have the matter litigated.  It is also correct, however, to observe that the respondent knew nothing of this.  Perhaps the last communication the respondent had was the letter from Mr Bradshaw of 25 February 2000 in which he advised that the applicant would be pursuing her remedies in the Court. 

6. After the difficulties with the material in May and June, the applicant said that she waited to see Mr Bradshaw, her understanding being that he would be physically present in Coen in September.  For one reason or another she did not in fact see him until November 2000.  After that time the necessary material was put together and filed on 10 January 2001.  I think there is much in what counsel for the respondent says with respect to the limited extent of the explanation concerning the events in the latter part of last year, but it would seem to me that there is probably little else the applicant can say.  After she experienced difficulties in having the material put together, she determined to wait until she could see Mr Bradshaw to have the matter put in order.

7. It is difficult to appreciate the problems created by remote distance and the lack of real assistance both to the applicant and to those who were required to witness the material.  On the other hand it has been said by the applicant that she had made it plain to the respondent throughout the negotiation period in the Commission that she would be pursuing her rights and her actions are consistent with this.  It has been said that the respondent, when it received the final letter from the Commission, might well have believed that if the applicant did not file her material by 11 May 2000, that would be an end to the matter.  That was certainly the tone of the letter from the Commission but it would have been inaccurate.  The provisions of the Human Rights and Equal Opportunity Commission Act 1986 itself provide that the time limit is subject to any further extension being granted by this Court.

8. There are two other matters which need to be considered.  The respondent has raised the prospect that it will in any event be relying upon an exemption under the Racial Discrimination Act 1975 which relies upon its good faith in publishing the photographs and articles in question.  It is not however abundantly clear to me that such an exemption will necessarily be granted to the respondent or that it even has strong prospects in that regard.  It is also relevant in considering this application that the applicant’s application could not be said to lack any merit.  The photographs, in conjunction with the tenor of the article might be said to convey some of the matters of which she complains.  That is at least my provisional view. 

9. Lastly it may be said that no direct prejudice has been occasioned to the respondent, nor will it be, by the grant of an extension of time.  That is not itself conclusive on the question of an extension of time but it seems to me to be most relevant in a case such as this, where the requirement for witnesses on the part of the respondent is not likely to be great. The article and the photographs would appear to be the central factors in relation to any liability under the Racial Discrimination Act 1975.

10. The order will then be that the applicant be granted an extension of time within which to bring this application until 10 January 2001, the period within which she did in fact bring the application.  The respondent points to important questions arising to the question of the availability of the exemptions sought and I have accepted that this provides sufficient reason for the matter to remain in this Court and not be transferred to the Magistrates’ Court. 

11. The parties will incorporate directions towards a trial date I have now given, 9 July 2001 in the minutes of order.  They agree that costs are reserved.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

Associate:

Dated:             19 March 2001

Counsel for the Applicant:	Mr B Mumford
Solicitor for the Applicant:	James Bradshaw
Counsel for the Respondent:	Ms M Brennan
Solicitor for the Respondent:	Miller Harris
Date of Hearing:	19 March 2001
Date of Judgment:	19 March 2001