Fonua v Broken Hill Pty Co Ltd

[1997] HCATrans 197

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S104 of 1996

B e t w e e n -

LIUFAU FONUA

Applicant

and

BROKEN HILL PROPRIETARY COMPANY LIMITED

Respondent

Application for special leave to appeal

DAWSON J
GAUDRON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 4 AUGUST 1997, AT 10.42 AM

Copyright in the High Court of Australia

DAWSON J:   Mr Fonua, you appear in person, do you?

MR L. FONUA:   Yes, I appear for my own behalf, your Honour.

MR N.R. CARSON:   If the Court pleases, I appear for the respondent assisted by MR D.A. LLOYD.  (instructed by Blake Dawson Waldron)  (Mr Lloyd did not appear in Court)

DAWSON J:   There is one thing that I should inform the parties of before we begin, and that is that my wife holds a relatively small parcel of shares in the respondent, Broken Hill Proprietary Company Limited, should anyone want to object to my sitting in this matter.  Do you have any objection, Mr Fonua?

MR FONUA:   I am sorry?

DAWSON J:   Do you have any objection to my continuing to hear this application?

MR FONUA: No objection.

DAWSON J:   Very well, you may continue.

MR FONUA:   Your Honours, my submission, as I refer to the following:  (a) the judgment of Justice Dunford given on 17 October 1995; (b) a breach of the rules of natural justice has occurred in the investigation of complaints by the President of the Anti‑Discrimination Board and some of his officers.

GAUDRON J:   But that is not the issue before us, Mr Fonua.  The issue before us is the correctness of the decision of the Court of Appeal which in turn was concerned with the decision that your appeal was brought out of time.  That is the only issue before this Court.

MR FONUA:   Yes.  On 14 June 1995 I wrote to the tribunal requesting to state its reason regarding my complaints relating to the following appointments:  Mr Molina, Mr Gardiner, Mr Smith and Mr Want.  I refer to document 27.  This request was authorised by section 117 of the Anti‑Discrimination Act.

GAUDRON J:   Only if no reasons had been given was it authorised, is that not right?

MR FONUA:   There was no reason, your Honour, given to the appointment of Mr Smith.

GAUDRON J:   Was Mr Smith the subject of the complaint?

MR FONUA:   It was one of my complaints lodged with the Anti‑Discrimination Board in accordance with section 88 of the Act.  There was no such decision.

GAUDRON J:   It does not appear to have been one that was considered to be before the Tribunal, does it?

MR FONUA:   There was a complaint and it was attached to the report of the President of the Board.

GAUDRON J:   Does that appear from the papers?

MR FONUA:   Yes, it is in the record.  I lodged the complaint.  It was in the President’s report but ‑ ‑ ‑

GAUDRON J:   Where does it appear in the papers?

MR FONUA:   I refer to document 20 of the list of documents.

GAUDRON J:   Page 20?

MR FONUA: No 20, complaint lodged with the President dated 3 August 1993 relating to overtime issue and the appointment of Neville Smith.

GAUDRON J:   I cannot find that document.  You will have to be more specific about where it can be found, Mr Fonua.

MR FONUA:   Your Honour, I found the document ‑ ‑ ‑

GAUDRON J:   That was read as a refusal to allow you to work overtime.

MR FONUA:   Your Honour, towards about the second two last paragraphs I refer to the appointment of Neville Smith.

GAUDRON J:   Obviously nobody has treated that as a complaint.  I return the document.  That has not been treated as a complaint about Mr Smith, and indeed one would not ordinarily read it because you start off your letter saying that you wish to complain about the overtime situation, the refusal to allow you to work overtime.  There is reference certainly in the body of the letter to the appointment of Mr Smith.  However, you do not say you wish to complain about that.  All you say is:

I therefore ask the President.....to have Mr Downey transferred to another section ‑ ‑ ‑

MR FONUA:   Your Honour, there was a conciliation hearing on the 27th and I was instructed by the conciliation officer to lodge all outstanding complaints against the company as soon as possible.  I put the two complaints in one letter.  It was clearly indicated because a number of times we had discussed the appointment of Mr Smith, my concern at the secrecy surrounding the appointment of Mr Smith.

GAUDRON J:   That was not the subject of a specific - you did not say that you were complaining about that.  You did not ask for any alteration in that situation.  You asked for Mr Downey to be removed and the Tribunal proceeded as though the only complaint before it was with respect to the refusal of overtime.  So the Tribunal has not dealt with that question, has it?

MR FONUA:   Yes.  Another problem was the Anti‑Discrimination Board.  They failed to investigate my complaints according to law.

GAUDRON J:   Yes, but that is not a question before us.  What the Board did is not before us.  The question before us is the correctness of the Court of Appeal’s decision.

MR FONUA:   Yes, and ‑ ‑ ‑

DAWSON J:   Which is whether you were out of time in your appeal.

MR FONUA:   I lodged a letter with the registrar of the Tribunal under section 117 to state its reason for that someone appointment, including Mr Smith, and the registrar of the Tribunal took some 21 days to respond to my request while the law said you have to respond within 14 days, whether to give a further reason or to state their decision within time.  That is where the problems start, your Honour.  I write that the delay was used to deny me my right to appeal to the Court on a question of law, and that is my dissatisfaction with the decision of the Tribunal.  I rightly believe that I was entitled to further reason pursuant to section 117.

I also state Justice Dunford make an error of judgment when he said in his decision at page 3 in relation to Mr Smith there has never been any complaint in relation to Mr Smith. Under the Anti‑Discrimination Act we

have lodged a complaint in writing under section 88 of the Act.  I did that and I write to the Anti‑Discrimination Board President should investigate that complaint regardless of whether it was clear or not.  They should contact me but that particular complaint was never investigated.

I also take the opportunity to inform your Honours that I take legal action against the Attorney‑General of New South Wales and the people responsible for failing to investigate my complaint according to law.  That is only for the information.  I am not going to discuss that matter here.  I refer to this matter in my list of documents.  I think that is all, your Honours.

DAWSON J:   Thank you.I see that you do not wish to put any oral argument, Mr Carson?

MR CARSON:   No, your Honour.

DAWSON J:   This application raises only the question whether the applicant’s appeal to the Supreme Court was out of time.  That involves no point of principle which would warrant the grant of special leave.  We would add that we see no ground to doubt the decision of the court below.  Accordingly, special leave to appeal is refused.

MR CARSON:   We would seek costs, your Honour.

DAWSON J:   Yes.  What do you say about that, Mr Fonua?

MR FONUA:   Your Honour, I rightly agree this is not a matter to order costs the applicant.

DAWSON J:   Why not?  The rule is normally in this Court that if you lose you have to bear an order for costs unless you can show some reason why that should not be the case.

MR FONUA:   Yes.  I am in financial hardship.  My only employment was with the respondent and they dismissed me three years ago.  I have been looking for work.  You know, your Honour, how difficult a man with - over 50 looking for work and you find out that you have been dismissed.  I am on unemployment benefits since I was dismissed.  I have other matters to refer to the law court.  I might take legal action against the respondent for wrongful dismissal.

DAWSON J:   Yes.  Do you have anything to say to that, Mr Carson?

MR CARSON:    No, if it please your Honour.

DAWSON J:   The application is dismissed with costs.

AT 10.56 AM THE MATTER WAS CONCLUDED