Drew v Bates

[2005] FMCA 1221

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DREW v BATES & ANOR [2005] FMCA 1221

PRACTICE & PROCEDURE – Human rights – extending time for application.

Human Rights and Equal Opportunity Commission Act1986
Sex Discrimination Act 1984 (Cth)

Beling v Stapels [2001] FMCA 135
Leslie v Graham (2002) FCA 32
Phillips v Australian Girls Choir [2001] FMCA 109

Applicant: SUSAN GAY DREW

Respondents: ANTHONY BATES & ANOR

File Number: MLG 921 of 2005

Judgment of: Phipps FM

Hearing date: 17 August 2005

Date of Last Submission: N/A

Delivered at: Melbourne

Delivered on: 17 August 2005

REPRESENTATION

Counsel for the Applicant: Mr O'Bryan

Solicitors for the Applicant: Galbally & O’Bryan

Counsel for the Respondents: Mr Harrington

Solicitors for the Respondent: Kempsons Lawyers

ORDERS

1. The applicant be allowed pursuant to s.46PO of the Human Rights and Equal Opportunity Commission Act1986 further time to make an application against the respondents pursuant to the Sex Discrimination Act until 29 July 2001.

2. The applicant file and serve points of claim including particulars of any loss and damage she claims by 4.00pm on 7 September 2005.

3. The respondents file and serve points of defence by 4.00pm on 21 September 2005.

4. The Court declares that it is in the interests of justice that there be discovery.

5. Each party file and serve a list of discoverable documents by 4.00pm on 5 October 2005.

6. The proceedings be the subject of mediation by a person agreed within 14 days and if not agreed, by a Registrar of the Court, to be completed by 21 October 2005.

7. The applicant file and serve any affidavits upon which she relies by 4.00pm on 4 November 2005.

8. The respondents file and serve any affidavits upon which they rely by 4.00pm on 16 November 2005.

9. The application be fixed for hearing on 24 November 2005.

10. Reserve costs.

11. Pursuant to Rule 21.15 of the Federal Magistrates Court Rules 2001, the Court certifies that it was reasonable for each party to employ an advocate.

12. That the parties be granted liberty to apply.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 921 of 2005

SUSAN GAY DREW

Applicant

And

ANTHONY BATES & ANOR

Respondents

REASONS FOR JUDGMENT

1. This is an application for an extension of time pursuant to s.46PO(2) of the Human Rights and Equal Opportunity Commission Act1986.  That section provides:

   The application must be made within 28 days after the date of issue of the notice under subsection 46PH(2) or within such further time as the court concerned allows.

2. The applicant made a complaint to the Human Rights and Equal Opportunity Commission on 8 March 2005 in which she alleged sexual harassment in the course of her employment.  The affidavit filed by the applicant exhibits the documents constituting the complaint she made to the Commission and the Commission's Notice of Termination.

3. The Notice of Termination pursuant to sub-s.46PH(2) of the HREOC Act was issued by the Commission on 21 June 2005.  The 28 day time limit for an application to the Court expired on 19 July 2005.  The application was filed on 29 July 2005.

4. In the Statement of Complaint to the Human Rights and Equal Opportunity Commission, the applicant says that she commenced her employment with the second respondent on or about 28 October 1998.  She was employed in various positions and was administration manager from June 2004.  She was off work for a time from

   
   

   29 November 2004 with depression.  She then says that a meeting was arranged between her and the first respondent, who is the managing director of the second respondent, on Sunday 16 January 2005.  It was dinner at the Stokehouse Restaurant in St Kilda.  That particular date, it seems, was the only date that the first respondent had available because of other commitments and he was going overseas.

5. The applicant says that during the course of the dinner she and the first respondent discussed when she would return to work and the role she would have upon her return.  She then says that after the dinner, the two of them went for a walk along The Esplanade discussing work-related and other matters.  Upon arriving back at the restaurant, the first respondent asked her if she would like to come on a short drive with him so that he could show her the new Porsche he was purchasing.  They drove to Richmond where they looked at the new Porsche.  The applicant then says that on the return from Richmond to St Kilda, there were things said to her by the first respondent and actions carried out by the first respondent which constituted sexual harassment. 

6. Mr Harrington, who appears for the respondents, accepts that for the purpose of this application, what the applicant alleges occurred during the drive from Richmond to St Kilda is arguably sexual harassment. 

7. The applicant says that when she returned to work on Tuesday, 25 January 2005, she had a meeting with the first respondent at about 8.30 am and she says at the start of this meeting the first respondent told her she looked sensational.  That is a second matter of sexual harassment which is alleged by the applicant.  Mr Harrington's position in relation to that allegation is the same.

8. In the reply which the respondents sent to the Human Rights and Equal Opportunity Commission, the matters which the applicant complains about are denied.  The dinner meeting on 16 January is acknowledged, but the incidents which are alleged to have happened on the return trip from Richmond to St Kilda are denied. 

9. Sexual harassment is defined in s.28A of the Sex Discrimination Act. Section 106 is concerned with vicarious liability. The applicant alleges that there was sexual harassment in the course of her employment within the meaning of s.26A by the first respondent and she alleges that the second respondent is vicariously liable as that is described in s.106 of the Sex Discrimination Act.

10. The reason which is put forward for the delay is described in the affidavit of the applicant's solicitor, Mr Andrew Peter O'Bryan.  He says that his firm was instructed on 10 February 2005 in respect of an alleged sex discrimination and sexual harassment case.  The solicitor responsible for the file was Mr Nicholas Dunston.  On 8 March 2005, he filed the statement of complaint I have referred to.  On 21 June 2005, the Human Rights and Equal Opportunity Commission issued the Notice of Termination.  Mr O'Bryan says that he is the partner within the firm's employment law section. Mr Nicholas Dunston and an articled clerk work within the section.  Both he and Mr Dunston have a substantial case load. 

11. Mr Dunston was injured in a cycle accident on Tuesday 12 July 2005.  He was in hospital for a week, he had a broken hip.  The 12 July is seven days prior to the expiry of the 28 days during which the Court application needed to be lodged.  Mr O'Bryan says that during that week due to other substantial commitments, he was unable to review any of the files other than checking Mr Dunston's hearing sheet and diary to enable cancellation of appointments. He said there were no other solicitors available to assist.

12. He then says on 15 July 2005 when the extent of Mr Dunston's injuries and period of recovery became clearer, he resolved to review all the files.  During the week commencing 18 July he reviewed a substantial number of the files, but not the applicant's.  During the week commencing 25 July 2005, the applicant's file was reviewed and action was taken.  That is the material which is relied on as an explanation for the delay.

13. The principles to be applied in dealing with an application for an extension of time under sub-s.46PO(2) have been described in some detail by McInnis FM in Phillips v Australian Girls Choir [2001] FMCA 109 at [10] and referred to in Beling v Stapels (2001) FMCA 135:

    In the light of A'Hearn's case, it is clear that at least one of the principles referred to by Wilcox J in the Hunter Valley decision needs to be modified namely that it should not be any longer regarded as law that the inexcusable delay on the part of a solicitor should be visited upon the client and nor should it be a principle that there is in fact a pre-condition to the exercise of discretion in favour of the applicant for extension to show an acceptable explanation for delay or that it's fair and equitable in the circumstances to extend time. In the light of the decision in Ahearn's case it is useful to set out in modified form the relevant principles in relation to the exercise of the Court's discretion when considering an extension of time in a human rights application based upon those principles distilled by Wilcox J in Hunter Valley as follows:

    1. There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The "prescribed period" of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 550).

    2. It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential pre-condition (Comcare v A'Hearn (1993) 45 FCR 441 and Dix v Client Compensation Tribunal (1993) 1 VR 297 at 302).

    3. Action taken by the applicant other than by making an application to the court is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised. (See Doyle v Chief of Staff (1982) 42 ALR 283 at 287)

    4. Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension. (See Doyle at p 287)

    5. The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic at p 416)

    6. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. (See Lucic at p 417)

    7. Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion (Wedesweiller v Cole (1983) 47 ALR 528).

14. There are seven principles set out.  They can be summarised as three matters:  (1) explanation for delay (2) any prejudice to the respondent, and (3) whether the applicant has an arguable case.

15. One of the matters which McInnis FM refers to is this: 

    The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted.

16. Mr Harrington raises no issue concerning prejudice.  His argument is in relation to whether there is an explanation for the delay and whether there is an arguable case.

17. So far as the explanation for the delay is concerned, Mr Harrington argues that there is not an adequate explanation for the period of delay.  Mr Dunston left hospital on 19 July 2005 but there is no explanation of whether or not he was able or attempting to communicate concern about any particular files or any particular time limits.  It is also submitted that there was ample time prior to the actual date of filing of the application on 29 July 2005 for the solicitors to have discovered that there was a time limit to be met.  It could have been met, it is submitted, by the date of 19 July 2005 and it could have been met earlier than it was.

18. Generally, an error by a solicitor is not to be attributed to the client in the absence of prejudice or other circumstances.  There is reasonable explanation for the delay of 10 days given in this case.  Serious and unexpected injury in a cycle accident to the solicitor dealing with a file in a section of a firm where there are three people working, and one of them an articled clerk, is understandably a disruption to the practice.  Mr O'Bryan has described what he did.  No doubt, it could be said that there could be other processes or notations in place to ensure that if something unexpected happens, there is a system for alerting others in the firm to crucial dates.  However, criticisms such as this are not sufficient in this case to say that the delay has not been explained. 

19. As to whether the applicant has a case which has sufficient merit to justify an extension of time, or for the merit to be part of the reason for allowing the extension of time, Mr Harrington argues that any connection with the applicant's employment had ceased prior to the time at which the offending conduct is alleged to have taken place.  What Mr Harrington submits, and what he accepts for the purpose of the argument in this application, is that the dinner meeting on 16 January 2005 was in the course of employment or sufficiently related to employment for the purpose of this application.  But he submits that it had finished by the time the applicant and the first respondent were travelling in the first respondent's car to Richmond to look at the first respondent's new motor vehicle; it had finished at least at that time, if not earlier.

20. Mr Harrington referred to Leslie v Graham (2002) FCA 32, a decision of Branson J which was an application alleging sexual harassment under s.26A of the Sex Discrimination Act and vicarious liability under s.106. There, the applicant and a fellow employee were sent to a conference concerned with the type of work they were engaged in. The employer's business was in the transport industry and the applicant and the other employee attended the bus and coach association’s regional conference. The accommodation for the applicant and the other employee was a serviced apartment which had two bedrooms. On the Friday night, the applicant and the other respondent attended social functions away from the apartment and away from the conference facilities. It was alleged, and was accepted by her Honour, that the other employee, who had a significant amount to drink, came into the applicant's room wearing only a towel. The towel came off and he was struggling with the applicant, attempting to kiss her, but eventually he fell asleep. Her Honour found that that was related to the employment and that the employer was vicariously liable.

21. Mr Harrington submits that this case is different.  Any discussion of work-related matters had ceased by the time they were in the car.  Her return to employment and the role she was to perform were discussed at the dinner.  When they went for a walk along The Esplanade after dinner they discussed some work‑related matters.  She was then invited by the first respondent to go for a drive in his car to see his new motor vehicle and at that point any discussion of work-related matters ceased.

22. Mr Harrington accepts that the one comment on 25 January 2005 when the applicant returned to work is arguably sexual harassment.  He submits that if the extension of time is granted, it should be conditional upon the application being only concerned with that incident. 

23. What is alleged by the applicant to have happened on 16 January 2005 in the first applicant's car on the return from Richmond to St Kilda is arguably connected with employment.  Arguably, the evening’s events cannot be divided up as Mr Harrington submits.  It is only necessary to decide whether it is arguable for the purpose of deciding whether to grant an extension of time and I consider it is.

24. There is adequate explanation given for the delay and sufficient merit in what the applicant alleges about 16 January 2005 to justify exercising the discretion in favour of extending time for the application generally. 

25. I will therefore order that the applicant be allowed, pursuant to s.46PO of the Human Rights and Equal Opportunity Commission Act further time to make an application against the respondents pursuant to the Sex Discrimination Act until 29 July 2001.

I certify that the preceding Twenty-five (25) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate: 

Date: