Gordon v Greenup; Gordon v WAG Earthmoving Pty Ltd and Gordon v Drew Marsden and Anor
[2012] FMCA 1042
•16 November 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GORDON v GREENUP; GORDON v WAG EARTHMOVING PTY LTD and GORDON v DREW MARSDEN & ANOR | [2012] FMCA 1042 |
| HUMAN RIGHTS – Sex discrimination – sexual harassment. |
| PRACTICE AND PROCEDURE – Application for an extension of time in which to file originating application – factors for consideration – whether solicitor error. |
| Australian Human Rights Commission Act 1986 (Cth), s.46PO(1) and (2), 46PH(1)(i) Sex Discrimination Act 1984 (Cth), ss.28A, 28B(6), 94, 105, 106 |
| Christie v Harvey & Hayward (1900) 2 WALR 146 Clark v Ringwood Private Hospital (1997) 74 IR 413 Comcare v A’Hearn (1993) 45 FCR 441 Transport Workers Union v School Bus Contractors Pty Ltd (2011) 201 IR 327; [2011] FMCA 28 |
| Applicant: | KYLIE GORDON |
| Respondent: | WARREN ALLAN GREENUP |
| File Number: | PEG 43 of 2011 |
| Applicant: | KYLIE GORDON |
| Respondent: | WAG EARTHMOVING PTY LTD (ACN 120 331 035) |
| File Number: | PEG 44 of 2011 |
| Applicant: | KYLIE GORDON |
| First Respondent: | DREW MARSDEN |
| Second Respondent: | NORTH ROCK PTY LTD |
| File Number: | PEG 45 of 2011 |
| Judgment of: | Lucev FM |
| Hearing date: | Written submissions |
| Date of Last Submission: | 20 March 2012 |
| Delivered at: | Perth |
| Delivered on: | 16 November 2012 |
REPRESENTATION
| Solicitors for the Applicant in PEG 43 of 2011, PEG 44 of 2011 and PEG 45 of 2011: | Sparke Helmore |
| For the Respondents in PEG 43 of 2011 and PEG 44 of 2011: | No appearance |
| For the Respondents in PEG 45 of 2011: | Clement & Co Lawyers |
ORDERS
That the applicant’s application for an extension of time in which to file the originating applications be granted, with time extended, under s.46PO(2) of the Australian Human Rights Commission Act 1986 (Cth), to the time of actual filing.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 43 of 2011
| KYLIE GORDON |
Applicant
And
| WARREN ALLAN GREENUP |
Respondent
PEG 44 of 2011
| KYLIE GORDON |
Applicant
And
| WAG EARTHMOVING PTY LTD (ACN 120 331 035) |
Respondent
PEG 45 of 2011
| KYLIE GORDON |
Applicant
And
| DREW MARSDEN |
First Respondent
| NORTH ROCK PTY LTD |
Second Respondent
REASONS FOR JUDGMENT
The applications
In each of these matters there is an application under s.46PO(2) of the Australian Human Rights Commission Act 1986 (Cth)[1] for an extension of time in which to file an originating application. Relevantly, s.46PO(1) and (2) of the AHRC Act provide that:
(1) If:
(a) a complaint has been terminated by the President under section 46PE or 46PH; and
(b) the President has given a notice to any person under subsection 46PH(2) in relation to the termination;
any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Magistrates Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.
(2) The application must be made within 60 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows.
[1] “AHRC Act”.
The parties
In each matter the applicant is Kylie Gordon.
In PEG 43 of 2011 the respondent is Warren Allan Greenup. Mr Greenup is or was the managing director of WAG Earthmoving Pty Ltd (ACN 120 331 035)[2], a company which employed Ms Gordon as a general rouseabout on a mine site. It would appear that Mr Greenup is a bankrupt, having been entered on the National Personal Insolvency Index on 19 January 2011 consequent upon the filing of a debtor’s petition.[3] The Official Trustee in Bankruptcy is the trustee in bankruptcy of Mr Greenup’s bankrupt estate, and has been notified of, but taken no part in, these proceedings.
[2] “WAG Earthmoving”.
[3] Exhibit 1.
In PEG 44 of 2011 the respondent is WAG Earthmoving.
In PEG 45 of 2011 the respondents are Drew Marsden and North Rock Pty Ltd.[4] North Rock is a company which subcontracted WAG Earthmoving to provide services to Citic Pacific Mining on the Sino Iron Project at Cape Preston, in Karratha, in the north-west of Western Australia.[5] Mr Marsden was employed as the operations manager of North Rock.
[4] “North Rock”.
[5] “Workplace”.
The substantive subject matter
Ms Gordon’s primary complaint is that during the course of her employment with WAG Earthmoving she was sexually harassed by Mr Marsden. Ms Gordon alleges that he made lewd comments to her, requested her to have sex with him, and that he grabbed his penis and said “come and sit on this baby”. Ms Gordon says that she reported this conduct, and that after she reported the conduct, her employment with WAG Earthmoving was terminated.
The matter was the subject of an application to the Australian Human Rights Commission,[6] but the AHRC was unable to conciliate the complaint, and it was therefore terminated.[7] Ms Gordon was advised of the termination of the complaint by letter from a delegate of the President of the AHRC dated 16 December 2010. From that time Ms Gordon had 60 days, or such further time as allowed by this Court, in which to make an application to this Court alleging unlawful discrimination by one or more of the respondents to the terminated complaint.[8]
[6] “AHRC”.
[7] AHRC Act, s.46PH(1)(i).
[8] AHRC Act, s.46PO(1) and (2).
In PEG 43 of 2011 Ms Gordon asserts that Mr Greenup was aware of the risk to which Ms Gordon was subject at the Workplace, and had knowledge of the conduct that constituted discrimination on the grounds of sex. Ms Gordon alleges that on or about 6 April 2010 she complained to Mr Greenup of sexual harassment and exposure to discomforting sexually explicit language within the Workplace. Ms Gordon alleges that Mr Greenup knowingly continued to place her in a position where there was a real, and something more than remote, possibility that the conduct complained of, would continue to occur. Ms Gordon alleges that Mr Greenup thereby contravened s.105 of the Sex Discrimination Act 1984 (Cth)[9] by permitted an unlawful act.
[9] “SD Act”.
In PEG 44 of 2011 Ms Gordon makes the same complaint against WAG Earthmoving as is made against Mr Greenup, in terms of the factual matrix. Ms Gordon asserts that she was subjected to a detriment, namely that her employment with WAG Earthmoving was terminated because she had raised allegations of an unlawful act of discrimination on the grounds of sex involving sexual harassment, and that WAG Earthmoving therefore contravened ss.94 and 106 of the SD Act.
In PEG 45 of 2011 Ms Gordon again relies upon the same factual matrix, and says that she was discriminated against on the grounds of sex and sexually harassed by Mr Marsden during her employment, and that North Rock is liable for Mr Marsden’s conduct by way of vicarious liability and agency. Ms Gordon asserts that Mr Marsden and North Rock have discriminated against her on the grounds of sex, contrary to ss.28A and 28B(6) of the SD Act, and that North Rock is vicariously liable for Mr Marsden’s conduct under s.106(1) of the SD Act.
The extension of time – basis and grounds
Each of the applications was filed by the applicant’s lawyers on 23 February 2011. Each application is out of time by 9 days.
The grounds for the extension of time are the same in relation to each application, and are as follows:
1.The Notice of Termination is dated 16 December 2010.
2.A Representative error occurred. The solicitor with carriage of the matter, having received instructions on 8 February 2011 miscalculated the number of days from the Notice of Termination.
3.There exists strong public policy reasons, that the court, if possible, entertain the Applicant’s claim.
4.The application is only a short time out of time and the delay is not great.
5.The Applicant’s claim against the Respondent has considerable merit.
6.The short delay is not a sufficient length of time entitling the Respondent to regard the claim as being finalised.
7.The Respondents have not suffered any prejudice, including any prejudice in defending the proceeding occasioned by the delay.
8.Considerations of fairness favour the granting of an extension of time.
In relation to each application there is an affidavit sworn by Kate Rebecca Walawski, a lawyer employed by the applicant’s lawyers, in support of the application for an extension of time. The affidavits in each application are, relevantly, in the same terms (save for the Court application number), as follows:
4.On Monday 31 January 2011 the applicant delivered documents to Sparke Helmore Lawyers’ Perth office (Spark Helmore Perth) to progress her instructions to bring these proceedings.
5.My principal, Steven Heathcote (Mr Heathocte) assigned this matter to me.
6.I reviewed the applicant’s delivered docucumentary records. Amongst them was a Notice of Termination dated 16 December 2010 (Notice) attached and marked ‘GOR-1’.
7.I was aware that, pursuant to s 46PO(2) of the Act, any application to the Federal Court or the Federal Magistrates Court had to be made within 60 days after the date of issue of the Notice.
8.I mistakenly calculated the number of days from the Notice and believed the correct filing date for any application to be Monday 21 February 2011, when in fact the 60 days ended on 14 February 2011 (Mistake).
9.I became aware of my Mistake on Wednesday 16 February 2011. Accordingly, a prepared application was redrafted to include Part E – Extension of time.
10The completed and amended application was filed in the Federal Magistrates Court against the Respondent, being application number PEG43/2011 (Application) on 23 February 2011.
11.I do not believe that the Respondent has suffered any prejudice, including any prejudice in defending the proceedings occasioned by the delay.
12.I further believe, on the basis of the material I have reviewed, that the applicant’s claim against the Respondent has merit.[10]
[10] Affidavit of Kate Rebecca Walawski, sworn 6 May 2011, paras.4-12. Transcribed from the original without amendment.
In each of the applications Ms Walawski swore a further affidavit dated 20 May 2011 in identical terms indicating that at the hearing of the proceedings the applicant would assert the same facts as were outlined in:
a)the AHRC Termination Letter; and
b)the applicant’s complaint to the AHRC.[11]
[11] Affidavit of Kate Rebecca Walawski, sworn 20 May 2011, para.4
The statement of events provided by Ms Gordon to the AHRC on 3 May 2010 was in the following terms (with minor explanatory interpolations):
Here is my statement of events in relation to Drew [Marsden]
On 17 March 2010, at 5.45pm I drove back to site and I parked beside a drill rig near the workshop where Drew and Squid where standing. I asked Drew to make sure he brought the air gun back from town tomorrow. While I was there Jeffrey [Ms Gordon’s son] came over to me to get a lift home with me.
As I went to drive off Drew grabbed his penis from the drive side of the car and said to me “Come and sit on this baby.” I said “Fuck off Drew and drove away.”
On the way back to camp Jeffrey said to me “What is going on mum?” I replied, “I don’t know, he is just sick.”
On 18th March 2010 around 6am after the toolbox meeting I was walking pasted the table where Drew, Jeffrey, Brett and Anthony was standing near the step beside Drew’s office. The boys were talking about work today. Drew just said to me “Come and be mine because Mick wouldn’t care.”
Then Drew said to Jeffrey “Can I have your mother you don’t care hey?” Jeffery replied, “You wanna pull your head in a bit cunt.” And then Anthony said to Drew, “That is enough you are playing with fire.” Drew just laughed about it. I then said, “Drew I have had enough of this can you please stop it!” Then everyone walked off.
Jeffrey walked over to the back of Brett’s service vehicle where Drew walked up to him and said, “You and your old man wouldn’t care if I fucked your old girl.” Jeffrey said to Drew, “This is a little beyond a joke brother. I have had enough of you talking shit!” then Jeffrey just walked off.
Jeffery said to me, “What is going on?” I said, ‘I don’t know?” Jeffery replied “What is dad going to think about this?”
During the day while I was cleaning the crib hut and offices, Drew was coming up to me and saying how he wanted me to be his and saying things like he was saying this morning. So I just walked out and didn’t finish cleaning.
On 22nd March 2010 I was upset when I started work and Mick was about to starting the shift off. Mick said, “What is wrong?” I didn’t tell him. Mick went to Jeffery and said, “What is wrong with mum?” Jeffery then told Mick what was going on.
Mick came and saw me and told me to tell Drew, to stop this shit. I went and told Drew straight away. In the afternoon I told Mick that I had talked to Drew and I thought the shit was over.
On Friday morning 26th March 2010 – Mick drove me to site to get my phone charger. When I got out of the car Drew once again Drew came out of his office and said, “I thought you were on break.” I replied “I am!” Drew turned around and said, “Or did you come down here to fuck me?” You are a sick man and I ran in and got my phone charger. Clay was in the room and I said hello. When I went back to the car, Mick said to me, “What did Drew say?” Nothing I replied. Mick said “Why did you run?” I was trying to hurry so we could get on the road. Mick said, “That is bullshit!” Mick got the shits and just drove back to the camp. While we were on break I told Mick everything that had been going on. We got back from R&R and a few days later there was 5 or 6 boys sitting outside of one of the boys rooms. When Anthony said to Jeffery in front of the boys which one was Brett, “Do you know that Drew loves your mother?” Jeffery fired up and said, “I have had enough!” Jeffery told Mick what was said that night.
Mick said to me, “See now it is getting around everywhere! You have to go and talk to Boppa!” Mick said, “Boppa will act on this as he has been a father figure to us. We have known Boppa more than 25 years. He will go to Drew and stop this, so it is kept quite.”
On 6th April 2010 – In the morning I went up to the camp to get water and ice for the men and I saw Mick and Jeffery at the camp. I was crying and Mick said, “What is wrong?” I replied “I can’t do my work because people are talking about me.” So Mick said go now and see Boppa. Jeffery said, “I want to come!”
Jeffery and I went and told Boppa what was going on. Boppa said, “So what! That is mining! You should grow up! You and Jeffery are trying to stir trouble!” I told Boppa, “There is people that have heard Drew talk to me like this!” Boppa said, “Alright I will go and see them.”
Boppa rang Mick and said, “Mick we have a problem, can you come down and see me.” Mick went so see Boppa and Boppa had said he had seen Anthony about it. All Anthony did was laugh about it. Anthony said, “Kylie and Jeffery are full of shit!” Mick said, “What about the other boys?” Boppa said, “Mick I think your family is going to get you into trouble!” Mick said, “Is that right?” and drove off.
I went back to work with the water and ice and kept cleaning. About 12pm Boppa came to me about driving a truck. I went to the car and looked at him and started crying. I went to my car and drove back to camp. The next day I had off.
Mick talked to Jamie about this. Jamie just said, “Come back and do what Boppa says and I will fix this up and talk to Drew when he gets back.”
The next morning I came to work and Boppa said, “You are sacked! You should grow up and stop making trouble! All you have done is shit on me!” I replied, “I know who shit on who?”[12]
[12] Affidavit of Kate Rebecca Walawski, sworn 20 May 2011, Annexure GOR-1.
Ms Gordon’s submissions
Ms Gordon submits that:
a)in relation to delay:
i)the period of delay, being nine days, is not a significant one;
ii)the delay was due to an error on the part of Ms Gordon’s legal representative, being a mistake in calculation on the part of the lawyer, Ms Walawski;
iii)the mistake in calculation occurred in circumstances where, six days before the expiry of time for making an application, the lawyer was given the task of preparing an application to the Court;
iv)due to the miscalculation, the application was filed nine days late; and
v)it would be wrong to treat the lawyer’s error as the direct fault of Ms Gordon. Ms Gordon is not responsible for the delay;
b)in relation to prejudice to the respondents in circumstances where the application was out of time by nine days, it is difficult to conceive of any substantial prejudice which the respondent might suffer if the Court were to grant the leave sought;
c)in relation to an arguable case:
i)the determination of whether or not Ms Gordon has an arguable case in discrimination applications under the AHRC Act is rendered more difficult by the fact that there is no requirement to file either an affidavit or a statement of points of claim with the application;[13]
[13] Citing Matthews v Hargreaves [2010] FMCA 840.
ii)given that Ms Gordon intends to assert facts, the same or similar to those outlined in the AHRC complaint and contained within the AHRC letter, it is, however, possible to draw a conclusion with respect to whether or not there is an arguable case in relation to the alleged sex discrimination; and
iii)in relation to PEG 43 of 2011:
(A)Ms Gordon claims that she was subjected to acts of discrimination on the grounds of sex involving sexual harassment, and that Mr Greenup was aware of the risk to which Ms Gordon was subjected at the Workplace and had knowledge of the conduct that constituted discrimination on the grounds of sex. Ms Gordon complained of sexual harassment, and of exposure to discomforting sexually explicit language, within the Workplace to Mr Greenup. Mr Greenup knowingly continued to place Ms Gordon in a position where there was a real possibility that the unlawful conduct complained of would occur;
(B)Ms Gordon relies on the provisions of s.105 of the SD ACT to allege aiding or permitting of an unlawful act by Mr Greenup;
(C)in order to succeed on her claim under s.105 of the SD Act Ms Gordon must establish that Mr Greenup permitted acts of discrimination on the grounds of sex involving sexual harassment; and
(D)if the matters of fact set out in the AHRC complaint are proved at hearing, they would satisfy the requirements for Ms Gordon to establish the elements necessary to succeed on her claims under s.105 of the SD Act;
iv)in relation to PEG 44 of 2011:
(A)Ms Gordon claims that she was subjected to acts of discrimination on the grounds of sex involving sexual harassment, and that WAG Earthmoving was aware of the risk to which Ms Gordon was subjected at the Workplace, and had knowledge of the conduct that constituted discrimination on the grounds of sex. Mr Gordon complained to WAG Earthmoving of sexual harassment and of exposure to discomforting sexually explicit language within the Workplace. Ms Gordon was subsequently subjected to a detriment, namely that her employment was terminated, because she had raised allegations of discrimination on the grounds of sex involving sexual harassment;
(B)Ms Gordon relies on the provisions of ss.94 and 106(1) of the SD Act to allege victimisation and vicarious liability;
(C)in order to succeed on her claim under s.94 of the SD Act Ms Gordon must establish that WAG Earthmoving subjected her, or threatened to subject her, to a detriment, and that the detriment was on the ground that Ms Gordon had done or proposed to make an allegation that a person had done an unlawful act; and
(D)in order to succeed on her claim under s.106 of the SD Act, Ms Gordon must establish that there was a relationship of employment between WAG Earthmoving and Ms Gordon, and that the alleged act of victimisation occurred in connection with that employment;
v)in relation to PEG 45 of 2011:
(A)Ms Gordon’s claims that she was discriminated against on the grounds of sex, and sexually harassed, have as their bases allegations that Mr Marsden made derogatory sexual comments to and about her during her employment, and that North Rock is vicariously liable for Mr Marsden’s acts;
(B)Ms Gordon relies on the provisions of ss.28A, 28B(6) and 106(1) of the SD Act to allege discrimination on the grounds of sex;
(C)in order to succeed on her claim under s.28A of the SD Act Ms Gordon must establish that the conduct of Mr Marsden was of a sexual nature, that the conduct or advance was unwelcome, and that the conduct occurred in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated;
(D)in order to succeed on her claim under s.28B(6) of the SD Act Ms Gordon must establish that both she and Mr Marsden were Workplace participants, and that the conduct occurred at a place that is a Workplace of both Mr Marsden and herself; and
(E)in order to succeed on her claim under s.106 of the SD Act Ms Gordon must establish that there was a relationship of employment between Mr Marsden and North Rock and that the alleged act of discrimination occurred in connection with Mr Marsden’s employment by North Rock;
d)if the matters relied upon were proved at hearing, they would satisfy the requirements for Ms Gordon to establish all of the elements necessary to succeed on the application;
e)the application, on its face, is arguable and not so devoid of merit as to warrant a refusal to extend the time for filing; and
f)as a matter of fairness Ms Gordon should not be deprived of an opportunity to pursue her claim due to an error on the part of her legal representative.
PEG 45 of 2011 – submissions of Mr Marsden and North Rock
Only Mr Marsden and North Rock have filed submissions in opposition to Ms Gordon’s application. Mr Marsden and North Rock submit that:
a)the prima facie rule is that proceedings begun outside the relevant time period will not be entertained;[14]
[14] Citing Lucic v Nolan & Ors (1982) 45 ALR 411 at 416 per Fitzgerald J (“Lucic”).
b)whilst there is an explanation for the delay it is not an “acceptable explanation”;[15]
[15] Citing Pham v Commonwealth of Australia [2002] FCA 669 at para.11 per Gray J (“Pham”).
c)the extension of time application lacks the expected candour and concision of a solicitor representative seeking to avoid a client being fixed with the exclusionary delay;
d)the opportunity has been provided to inform the Court why the delay occurred;
e)no evidence is provided as to when the miscalculation mistake was done;
f)no explanation is provided as to how the miscalculation mistake was discovered;
g)no evidence is provided as to why nine days elapsed before any remedial action was taken;
h)the material in the submissions, but not on oath, reveals the supervising solicitor had responsibility for the matter from 31 January 2011 until at least 8 February 2011;
i)no explanation is given for why the supervising solicitor did not act to ensure the protection of the client’s rights;
j)there is no evidence of Ms Gordon’s own endeavours to protect her own rights;
k)the necessary evidence to satisfy the Court that the delay is acceptable has not been supplied;
l)the Court needs to be properly satisfied that it is proper to grant the extension;[16] and
m)the Court is not obliged to rectify remorseless indifference by solicitors even in the cause of the protection of an applicant’s rights.
[16] Citing Ralkon Agricultural Co Pty Ltdv Aboriginal Development Corporation (1982) 43 ALR 535 at 550 per Keely J (“Ralkon”).
Extension of time principles
The relevant principles with respect to extension of time applications can be summarised as follows:
a)the prima facie rule is that proceedings commenced outside an express time period will not be entertained;[17]
b)special circumstances do not need to be shown but a court will not grant an application unless positively satisfied that it is proper to do so,[18] but an acceptable reason for the delay is not an indispensable pre-requisite for an application for an extension of time being granted;[19]
c)whether any action has been taken by an applicant to make a respondent aware of the applicant’s dissatisfaction with the decision prior to the substantive application being lodged;[20]
d)whether of not there would be any prejudice to a respondent occasioned by any delay, noting that an absence of prejudice alone is not enough to justify granting an extension of time;[21]
e)the merits of the substantive application, which are properly to be taken into account in considering whether an extension of time should be granted;[22] and
f)considerations of fairness as between an applicant and other persons in a like position.[23]
[17] Lucic at 416 per Fitzgerald J; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 per Wilcox J (“Hunter Valley Developments”).
[18] Hunter Valley Developments at 348 per Wilcox J.
[19] Comcare v A’Hearn (1993) 45 FCR 441 at 444 per Black CJ, Gray and Burchett JJ (“A’Hearn”).
[20] Hunter Valley Developments at 348-349 per Wilcox J.
[21] Hunter Valley Developments at 349 per Wilcox J; Lucic at 416 per Fitzgerald J.
[22] Lucic at 417 per Fitzgerald J; Hunter Valley Developments at 349 per Wilcox J.
[23] Hunter Valley Developments at 349 per Wilcox J.
In matters pertaining to human rights and discrimination it is arguable that there exist strong public policy reasons that the Court should, if possible, entertain bona fide claims.[24]
[24] Lawton v Lawson & Ors [2002] FMCA 68 at para.31 per Brown FM (“Lawton”).
A matter which looms large in the consideration of this case is the issue of representative error by the applicant’s lawyer.
This Court, in Transport Workers Union v School Bus Contractors Pty Ltd[25] dealt with some of the authorities in relation to representative error, and observed as follows:
[25] (2011) 201 IR 327; [2011] FMCA 28 (“School Bus Contractors”).
59. As long ago as 1900 the Western Australian Supreme Court observed that:
“… it is very hard that a party should suffer because of the blunder of a solicitor, his clerk, or of counsel.”[26]
60. In 1984 in Hunter Valley Developments the Federal Court observed that “[i]t would be erroneous to treat the fault of the solicitors as if it were the direct default of the client”.[27]
61. More recently, in 2010, in Doyle v Gillespie,[28] the Supreme Court of the Australian Capital Territory suggested that the Federal Court has “embraced the views of the English courts”[29] as summed up in the following comment:
“We never like a litigant to suffer by the mistake of his lawyers.”[30]
[26] Christie v Harvey & Hayward (1900) 2 WALR 146 at 150 per Hensman J.
[27] Hunter Valley Developments at 351 per Wilcox J.
[28] (2010) 173 ACTR 66; [2010] ACTSC 21 (“Doyle”).
[29] Doyle ACTR at 74-75 per Refshauge J; ACTSC at para.53 per Refshauge J.
[30] Salter Rex & Co v Ghosh [1971] 2 QB 597 at 601 per Lord Denning MR (“Salter Rex”), and see the Australian cases cited in Doyle at ACTR 75; ACTSC at paras.54-60 per Refshauge J.
62. As recently as December 2010, this Court has observed that:
“… the failings of legal advisers should not necessarily be attributed to their clients who, as a result, find themselves needing an indulgence from the court or an exercise of a discretionary power to extend a time limit …”[31]
63. The principle that an affected person should not be disadvantaged by the error or oversight of their representative is well established in workplace relations law.[32]
64. In WorkCover and personal injuries claims, even dilatory inaction by solicitors has not prevented the granting of an extension of time to enable a claim to be pursued.[33]
65. The representative error principle has also been applied in corporations law when lawyers were, inadvertently, out of time in applying to the stock exchange for official quotation.[34]
66. The fact of representative error is therefore a matter which may favour the grant of an extension of time.[35]
[31] Stephens v Australian Postal Corporation [2010] FMCA 1012 at para.21 per Smith FM (“Stephens”), citing A’Hearn and Hunter Valley Developments.
[32] See Stephens at paras.12, 21 and 23 per Smith FM (citing both A’Hearn at 443 per Black CJ, Gray and Burchett JJ, and Hunter Valley Developments at 351 per Wilcox J); Tandoegoak & Anor v Margeurite Gerard Pty Ltd [2007] FMCA 621 at paras.21-23, 26 and 28-29 and 40(iii) per O’Sullivan FM; Clark v Ringwood Private Hospital (1997) 74 IR 413 at 418-420 at 418-420 per Ross VP, Drake DP and Deegan C.
[33] A’Hearn; Crompton v Buchanan & Ors [2010] QCA 250; Repco Corporation Ltd v Scardamaglia [1996] 1 VR 7.
[34] Re Insurance Australia Group Ltd (2003) 128 FCR 581; [2003] FCA 581.
[35] School Bus Contractors IR at 343-345 per Lucev FM; FMCA at paras.59-66 per Lucev FM (footnotes 26-34 above are from the quoted passage).
The Full Court of the Federal Court in A’Hearn dealt with an application for an extension of time as a consequence of what was “inexcusable delay” by the lawyers concerned,[36] where “gross inaction”[37] resulted in no application being lodged for 17 months, where the relevant time limitation was 60 days.[38] The Full Court of the Federal Court observed that:
A consistent thread thus revealed in the reasoning is that the Tribunal considered that delays by a solicitor were to be visited upon a client. Thus, despite the inexcusable delay on the solicitors’ part the Tribunal found, it was able to say that there was, “no acceptable explanation whatsoever” for the delay. This approach cannot stand in the light of modern authorities such as Jess v Scott (1986) 12 FCR 187: see also Lighthouse Philatelics Pty Ltd v Commissioner of Taxation (1991) 32 FCR 148 at 156.[39]
[36] A’Hearn at 443 per Black CJ, Gray and Burchett JJ.
[37] A’Hearn at 442 per Black CJ, Gray and Burchett JJ.
[38] A’Hearn at 441-442 per Black CJ, Gray and Burchett JJ.
[39] A’Hearn at 443 per Black CJ, Gray and Burchett JJ.
Consideration
In considering this matter the Court will determine all three applications having regard to the submissions made by the respondents in PEG 45 of 2011, notwithstanding that the respondents in PEG 43 of 2011 and PEG 44 of 2011 have made no submissions. The Court considers it appropriate to do so given that the relevant factual matrix for each matter is, for practical purposes, the same.
Was there an acceptable reason for the delay?
The respondents in PEG 45 of 2011 argue that there was not an acceptable reason for delay, but rather a simply unexplained mistake and “remorseless indifference” to delay by Ms Gordon’s lawyer. In the Court’s view it is wrong to say that there was no explanation, and exaggerated to say there was “remorseless indifference”. The explanation was that there was a mistake by the lawyer concerned in calculating the date. There was no challenge to that explanation (accepting that, although not unheard of, it is not necessarily usual to challenge the evidence in interlocutory proceedings of this type), and that evidence was on oath by a lawyer, that is, an officer of the Court. In the absence of any challenge, or any contrary evidence, there can be no doubt that there was a simple mistake by that lawyer. Where a lawyer makes a mistake the client, generally, ought not suffer adverse consequences arising from that mistake.[40]
[40] Salter Rex at 601 per Lord Denning MR; Doyle ACTR at 75 per Refshauge J; ACTSC at paras.54-60 per Refshauge J.
In this case, the delay was by the lawyers. That delay was twofold:
a)a delay of some eight days in the matter making its way from the partner of the firm of lawyers who took the original instructions from Ms Gordon, to the lawyer who made the mistake in calculating the date for filing of the application; and
b)a delay in preparing the application itself. The lawyer had calculated that the application was due to be filed on 21 February 2011, when in fact it was due to be filed on 14 February 2011. That mistake was realised on 16 February 2011, that is, two days after the time for filing of the application had expired. Curiously, and not explained in the evidence, is the fact that the application was then not filed on or before the date originally calculated in error, that is, 21 February 2011, but a further two days later on 23 February 2011.
On the evidence, the above delays are unexplained, not that an explanation is absolutely necessary.[41] The lawyer has not acted promptly, even when the failure to file on time was realised. Indeed, when it was realised, it took an additional two days beyond the time it was thought there was to file the application, to then file the application. That must, however, be counterbalanced against the fact that:
a)the further delay is, in itself, a further mistake by the lawyers, for which the client ought not necessarily bear the consequences;
b)in any event, the application was always going to be filed late, and the only question here was whether, the failure to file on time, having been discovered two days out of time, it then ought to have taken a further seven days to file the application; and
c)the delay of nine days in total is a comparatively short delay.
[41] A’Hearn at 444 per Black CJ, Gray and Burchett JJ.
In the circumstances, and bearing in mind that the explanation of miscalculation is not actually challenged by any of the respondents, and that the delay arises as a consequence of mistakes or inaction by Ms Gordon’s lawyers, and that the delay is in any event relatively short, the Court is of the view that there is a sufficient explanation for the delay, and an explanation, particularly as it relates to the lawyers’ mistakes, for which Ms Gordon ought not bear the adverse consequences.
There is no evidence of any action taken by Ms Gordon to make any of the respondents aware of her intention to make the application prior to it being made, but it must also be borne in mind that in federal human rights proceedings the application to this Court is not an application from a factual determination by the AHRC, but rather, at least in this case, an application arising from a termination of the complaint by reason of the AHRC being unable to conciliate a settlement. Issues associated with the finality of decision making per se do not therefore loom as large in these types of proceedings. Moreover, there may be a public interest in a bona fide claim proceeding.[42]
[42] Lawton at para.31 per Brown FM.
The Court observes that there is no evidence of any prejudice to any of the respondents, but that fact alone is not enough to justify granting the extension of time.
As to the merits of the substantive application it is, on its face, arguable, and, without any hint of pre-determination of the merits of the matter, if the facts as alleged in the application were to be made out at hearing, there would be a case for the respondents to answer. It is certainly not a case which, on its face, is so devoid of merit that it ought not proceed further, or which lacks sufficient substance to cause the Court to refuse to grant an extension of time.
Considerations of fairness as between Ms Gordon and other persons in a like position do not appear to arise on the evidence as it presently stands.
Conclusion and orders
In all of the circumstances, and in particular having regard for the fact that this is an extension of time which is necessary because of mistakes and inaction by Ms Gordon’s lawyers, and that the delay is comparatively short, and that there is a case which, on its face, is arguable, the Court has determined that the application for an extension of time in which to file the originating applications ought to be granted. There will be an order accordingly.
The Court will hear the parties as to costs, and as to further directions, or an adjournment to a further directions hearing.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Lucev FM
Date: 16 November 2012
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