Giniotis v Human Rights and Equal Opportunity Commission

[2000] FCA 334

FEDERAL COURT OF AUSTRALIA

Giniotis v Human Rights & Equal Opportunity Commission [2000] FCA 334

Disability Discrimination Act 1992 (Cth)
Race Discrimination Act 1975 (Cth)
Administrative Decisions (Judicial Review) Act 1977 (Cth)

Lucic v Nolan (1982) 45 ALR 411 at 416
Hunter Valley Development Pty Ltd v Cohen (1984) 3 FCR 344

STELLA STASE GINIOTIS v HUMAN RIGHTS & EQUAL OPPORTUNITY COMMISSION
N 139 of 2000

BRANSON J
SYDNEY
15 MARCH 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 139 of 2000

BETWEEN:	STELLA STASE GINIOTIS Applicant
AND:	HUMAN RIGHTS & EQUAL OPPORTUNITY COMMISSION Respondent
JUDGE:	BRANSON J
DATE OF ORDER:	15 MARCH 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The application for an extension of time be refused.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 139 of 2000

BETWEEN:	STELLA STASE GINIOTIS Applicant
AND:	HUMAN RIGHTS & EQUAL OPPORTUNITY COMMISSION Respondent

JUDGE:	BRANSON J
DATE:	15 MARCH 2000
PLACE:	SYDNEY

EX-TEMPORE REASONS FOR DECISION

1. By an application filed on 22 February 2000 the applicant (“Mrs Giniotis”) has sought review of three decisions of the President of the Human Rights and Equal Opportunity Commission (the “Commission”) dated 29 September 1999.  The decisions of the President are as follows:

   (a)A decision to dismiss a complaint made by Mrs Giniotis against Symthe & Mallam, Solicitors, Nicola Valcic & Associates, Solicitors, Ken Gilson & Associates, Solicitors, pursuant to section 101(1) of the Disability Discrimination Act 1992 (Cth) (“the DDA”). The Acting Disability Discrimination Commissioner and delegate of the Race Discrimination Commissioner (the “Commissioner”) had earlier decided not to inquire into Mrs Giniotis' allegations because the complaint was lacking in substance and because more than 12 months had elapsed between the date of the act complained of and the making of the complaint. Mrs Giniotis had requested the Commissioner to refer her complaint to the President.

   (b)A decision to dismiss a complaint made by Mrs Giniotis against the New South Wales Legal Aid Commission and J. Mulder pursuant to section 101(1) of the DDA, and to confirm the decision of the Commissioner not to inquire further into Mrs Giniotis’ complaint in accordance with section 24AA(2)(b)(i) of the Race Discrimination Act 1975 (Cth) (the “RDA”).  Earlier the Commissioner had decided not to continue to inquire into Mrs Giniotis' allegations because the complaint was lacking in substance and because more than 12 months had elapsed between the date of the act complained of and the making of the complaint.  Mrs Giniotis had requested the Commissioner to refer her complaint to the President.

   (c)A decision to dismiss a complaint made by Mrs Giniotis against the Office of the Legal Services Commissioner pursuant to section 101(1) of the DDA, and to confirm the decision of the Commissioner not to inquire further into the complaint in accordance with section 24AA(2)(b)(i) of the RDA. The Commissioner had decided earlier not to continue to inquire into allegations made by Mrs Giniotis because her complaint lacked substance and because more than 12 months had elapsed between the date of the act complained of and the making of the complaint. Mrs Giniotis had requested the Commissioner to refer her complaint to the President.

2. Under section 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the “ADJR Act”) Mrs Giniotis was required to lodge with the registry of this Court her application within 28 days after the date on which the documents setting out the terms of the President’s decisions were furnished to her. Mrs Giniotis received the documents setting out the decisions of the President under cover of a letter to her dated 29 September 1999. By notice of motion dated 22 February 2000 Mrs Giniotis has sought an extension of time within which to lodge her application.

3. The prima facie rule is that proceedings under the ADJR Act which are not lodged in time should not be entertained. (Lucic v Nolan (1982) 45 ALR 411 at 416). In Hunter Valley Development Pty Ltd v Cohen (1984) 3 FCR 344 Wilcox J identified principles which guide the exercise of the Court's discretion in this area. The principles identified by his Honour have subsequently been adopted in a number of cases in this Court. The first of the principles identified by his Honour is as follows:

   “Although the section does not, in terms, place any onus of proof upon an applicant for extension an application has to be made.  Special circumstances need not be shown but the Court will not grant the application unless positively satisfied that it is proper so to do.  The ‘prescribed period’ of twenty-eight days is not to be ignored.  Indeed, it is the prima facie rule that proceedings commenced outside that period will not be entertained.  It is a precondition to the exercise of discretion in his favour that the applicant for extension show an ‘acceptable explanation of the delay’ and that it is ‘fair and equitable in the circumstances’ to extend time.”  (references to authorities omitted)

4. Ms Giniotis accepts that she was advised by the Commission orally on 22 October 1999 of the time period for approaching this Court and that she received confirmation of that information by letter dated 22 November 1999.  Mrs Giniotis did approach the Commission for assistance, however she was advised that the Commission would not assist her in this matter but that she should seek help from the Federal Court.

5. When this matter came before me on the last occasion, I sought to explain to Mrs Giniotis the sort of material that she needed to place before the Court to justify her application for an extension of time.  It was my impression at the time that Mrs Giniotis understood what I was putting to her and she has acknowledged today, for what that is worth, that she did understand what I said.  On the last occasion I adjourned the matter to allow Mrs Giniotis to file a further affidavit indicating when she was first told that she could make an application to this Court, who she sought help from, when she sought that help and what she did as a consequence of being advised of the 28 day time limit to approach the Court.

6. The further affidavit filed by Mrs Giniotis gives little, if any, particulars of the precise steps taken by her to invoke the jurisdiction of this Court as opposed to the general steps taken by her to deal with the numerous problems which she has faced over recent years.  In response to questions from me, Mrs Giniotis has made it clear that the approaches to various authorities and agencies referred to in paragraph 4 of her affidavit of 10 March 2000 had little to do with any attempt by her to lodge an application with the Registry of this Court.  None of the affidavits filed by Mrs Giniotis gives any evidence about her seeking advice from the registry of this Court as advised by the Commission.  Nor do the affidavits explain the circumstances in which the application ultimately made by Mrs Giniotis came to be made.

7. In this case Mr Armstrong, appearing for the respondent, does not suggest any prejudice to his client and I see no reason to think that the Commission would be prejudiced were I to grant an extension of time.  However, as Wilcox J pointed out in the Hunter Valley case, the mere absence of prejudice is not enough to justify the grant of an extension.

8. Wilcox J also indicated in the Hunter Valley case that the merits of the substantial application are a relevant consideration on an application for an extension of time.  I have limited material before me upon which I could reach a concluded view on the merits of the substantial application.  However, I observe that in each of the three decisions of the President reliance is placed on the fact that the complaint made by Mrs Giniotis was made more than 12 months after the acts of which she complained took place.  Such delay is a proper ground for refusing to continue to inquire further into a complaint.

9. I have found this matter troubling because I am aware that Mrs Giniotis is acting with limited, if any, assistance with respect to complex matters which have caused her distress.  Nonetheless, I must act in accordance with the law.  The limited information placed before me by Mrs Giniotis does not provide an “acceptable explanation for the delay”.  Indeed, I remain unaware of any attempts made by Mrs Giniotis to act promptly after she was advised by the Commissioner of the time period for approaching this Court.

10. In all of the circumstances I am not satisfied that would it be an appropriate exercise of my discretion to extend the time within which Mrs Giniotis may lodge her application in this matter.  The application for an extension of time is refused.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:   15 March 2000

Ms Giniotis represented herself
Solicitor for the Respondent:	Human Rights & Equal Opportunity Commission
Date of Hearing:	7 & 15 March 2000
Date of Judgment:	15 March 2000