Howells v Owners Corporation Strata Plan 33149
[2015] FCCA 1920
•17 July 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HOWELLS v OWNERS CORPORATION STRATA PLAN 33149 | [2015] FCCA 1920 |
| Catchwords: HUMAN RIGHTS – Extension of time required to commence proceedings pursuant to s.46PO of Australian Human Rights Commission Act 1986 (Cth) – whether delay adequately explained – whether prejudice to the respondent – merits of application – arguable case – extension of time granted. |
| Legislation: Australian Human Rights Commission Act 1986 (Cth), ss.46PH, 46PO Disability Discrimination Act 1992 (Cth), ss.5, 6, 11, 24, 25, 27, 29A, 42 |
| Amponsem v Laundy (Exhibition) Pty Ltd [2014] FCA 94 Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344 Laganis v Roberts Unreported, SASC 4043 15 July 1993 McKenna v McKenna [1984] VicRp 58; [1984] VR 665 Phillips v Australian Girls' Choir & Anor [2001] FMCA 109 SZQBT v Minister for Immigration and Citizenship [2011] FCA 1281 Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178 Vaenuku v Terrigal Trojans Rugby Club Inc & Anor [2010] FMCA 701 |
| Applicant: | PETER DAVID HOWELLS |
| Respondent: | OWNERS CORPORATION STRATA PLAN 33149 |
| File Number: | SYG 2548 of 2014 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 29 April 2015 |
| Date of Last Submission: | 29 April 2015 |
| Delivered at: | Sydney |
| Delivered on: | 17 July 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Mr H Simons of Remington & Co Solicitors |
| Solicitors for the Respondent: | Mr A Cairns of Burke & Mead Lawyers |
ORDERS
The time for making the application is extended to 15 September 2014 pursuant to s.46PO(2) of the Australian Human Rights Commission Act 1986 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2548 of 2014
| PETER DAVID HOWELLS |
Applicant
And
| OWNERS CORPORATION STRATA PLAN 33149 |
Respondent
REASONS FOR JUDGMENT
On 15 September 2014, Peter David Howells (“the applicant”) filed the application commencing these proceedings. The substantive application was said to be made pursuant to s.46PO of the Australian Human Rights Commission Act 1986 (Cth) (“the Act”) alleging unlawful discrimination under the Disability Discrimination Act 1992 (Cth) (“the DDA”) by Owners Corporation Strata Plan 33149 (“the respondent”). Annexed to the application was a Notice of Termination (“the Termination Notice”) issued by the Australian Human Rights Commission (“the Commission”), pursuant to s.46PH(1)(i) of the Act, concerning a complaint of unlawful discrimination under the DDA, which the applicant had made against the respondent. The date of the notice of termination is 27 May 2014.
The applicant also sought an order to extend the time within which to file his substantive application to the Court. This was in the following terms:
“The applicant asks for an extension of time to lodge this application because of the reasons stated in the attached affidavits of Peter David Howells and Howard Norman Simons namely non-receipt of the Termination of Complaint and Notices of Termination.”
Section 46PO(2) of the Act provides that such applications must be made within sixty days of the date of the issue of a notice under s.46PH(2) of the Act, or within such further time as the Court concerned allows. Noting that the date of termination was 27 May 2014, the applicant had until 26 July 2014 to file the application commencing these proceedings. The application was filed on 15 September 2014, that is, some 49 days out of time [I note that this date has been adjusted to allow for relevant filing time after a weekend period – see s.36(2) of the Acts Interpretation Act 1901 (Cth)].
The respondent, in their response of 29 September 2014 opposed the granting of an extension of time for the filing of the application claiming that the applicant had failed to provide an “adequate” explanation for the delay ([6] of annexure A to the respondent’s response). The application for an extension of time was set down for hearing on 10 June 2015.
Background
The applicant had previously lodged a complaint with the Commission against the respondent (“the previous proceedings”). The previous proceedings before the Commission were resolved by way of a Deed of Release signed on, or around, 11 December 2012 by the applicant, and by the respondent on 16 January 2013. The release was limited to events in the period up until 15 December 2011.
The applicant lodged a second complaint with the Commission against the respondent on or around 8 October 2013 (see attachment “A” of the Complaint attached to the application). The Commission terminated this complaint on 27 May 2014. The application concerning this second complaint is the subject of the current proceedings.
Explanation for the Delay
In providing an explanation for the delay in making his application to the Court, the applicant relied on his affidavit of 9 September 2014, the affidavit of his solicitor Howard Norman Simons of 15 September 2014 and the affidavit of Nerida Jean Harvey, solicitor, of 24 October 2014. The respondent did not object to the late filing and service of this affidavit. Written submissions have been filed by both parties in these proceedings.
The applicant claims that due to “non-receipt of the Termination of Complaint and Notices of Termination” by the applicant’s solicitor within time, the application was not able to be made within the limitation period provided under the relevant statutory scheme.
The applicant relies on the affidavits set out above (at [7]) to further explain and make good this claim (see [A] of the applicant’s written submissions). Relevantly, they are in the following terms.
The applicants affidavit of 9 September 2014:
“[6] … I received a Termination Notice dated 27 May 2014 signed by Merrilyn Aylett a delegate of the president, I received this on or about the 29 May 2014.
[7] In March 2014 I contacted the Law Society of NSW and in April 2014 I formalised my application with them for pro bono assistance as I could not afford legal assistance and was refused legal aid and I was retired and not working.
[8] I understand and I am advised that several attempts were made on my behalf to have a solicitor accept a referral for my matter but that several firms of solicitors refused to take the matter on (I am not sure of the reasons for such refusal).
[9] Eventually I was advised on or about 31 July 2014 that Remington & Co Solicitors would be appointed advising that Remington and Co Solicitors had accepted my case.
[10] To the best of my knowledge and belief I did email to the Law Society of New South Wales a copy of the Termination of my Complaint and a Notice of Termination on 2 June 2014 however I am advised by Howard Norman Simons at Remington & Co Solicitors that these two documents were not received by him but as I have said, the Law Society did receive them.
[11] In particular I had a lengthy a telephone conference with him on 7 August 2014 in which he informed me he had not received these documents, I then emailed these to him on the same day.
[12] This is when I first became aware that he had not received the Notice of Termination and the reasons for termination.
[13] Given that it was decided there was no reasonable prospect of the matter being settled by conciliation and that itself was the reason for the termination of the Complaint, I say there is no prejudice suffered by the respondent if the Application for the Extension of Time is granted and in the alternative I say that I am prejudiced if the application is not granted.”
The affidavit of Howard Norman Simons which states:
“[2] I received instructions via the Law Society of New South Wales Pro Bono Scheme on 24 July 2014 and opened my file on 28 July 2014.
[3] I definitely did not receive from the Law Society of New South Wales the Termination of the Application's Complaint dated 27 May 2014 and Notice of Termination dated 27 May 2014.
[4] I received these documents from Mr Howells on 7 August 2014 following a telephone conference I had with him on 7 August 2014.
[5] Following that, I did prepare a draft affidavit to be executed by Mr Howells. Mr Howells required some amendment to that affidavit and it was eventually hand delivered to our office on, I believe, 11 September 2014.”
[Errors in the original.]
The affidavit of Nerida Jean Harvey which relevantly states:
“[4] The Law Society Pro Bono Scheme did try to obtain legal assistance for Mr. Peter Howells and prior to Remington & Co Solicitors, two firms of solicitors were approached but for various reasons the referral to the first two solicitors could not continue. The date of the first referral was 1 May 2014 and the date of the second referral was 17 June 2014. Remington & Co Solicitors were instructed by the Law Society Pro Bono Scheme in late July 2014.
[5] On 23 July 2014 a third referral was made to Remington and Co Solicitors. It was at this referral stage that I believe Mr. H. N. Simons was not forwarded all of the documentation pertaining to this matter. In particular, Mr H. N. Simons was not sent the Notice of Termination dated 27 May 2014 and the attachment headed Termination of your Complaint also dated 27 May 2014, due to an oversight at our office.
[6] Regrettably due to the previous referrals it appears that not all documentation had been returned to the Scheme and a result it was not forwarded on to Mr. H. N. Simons. Although this is not an excuse it is the reason why all documentation wasn’t provided. The Scheme is extremely busy and from time to time documents do regrettably get lost.”
In written submissions, the respondent relies on the principles enunciated in Phillips v Australian Girls' Choir & Anor [2001] FMCA 109 (“Phillips”) and approved in Vaenuku v Terrigal Trojans Rugby Club Inc & Anor [2010] FMCA 701 (“Vaenuku”), and see also Amponsem v Laundy (Exhibition) Pty Ltd [2014] FCA 94 (“Amponsem”), to submit that the applicant has failed to provide an adequate reason as to the delay.
The respondent refers to Vaenuku per Cameron FM at [16] to claim that there are three relevant matters to be considered in whether an application for an extension of time should be granted. They are in the following terms ([8] of the respondent’s written submissions):
“a) explanation for delay;
b) any prejudice to the Respondent.
c) whether the applicant has an arguable case.”
Explanation for the Delay
In Amponsem, Farrell J set out the relevant factors to be considered in whether an application for an extension of time should be granted. They are in the following terms (Amponsem at [7]):
“The principles relevant to the grant of an application for extension of time are set out by Collier J in SZQBT v Minister for Immigration and Citizenship [2011] FCA 1281 at [15] relying on Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; [1984] FCA 176 per Wilcox J at [15]. In summary the relevant factors are:
(a) Whether the applicant has provided an acceptable explanation for the delay in lodging the application;
(b) Whether the respondent would suffer prejudice in light of the delay should an extension of time to lodge the application be granted; and
(c) The merits of the substantive application.”
It is the case that a relevant consideration in the grant of an extension of time is whether the applicant can provide an acceptable explanation for the delay in making his application to the Court. I note that it is not an essential pre-condition (Amponsem at [7], SZQBT v Minister for Immigration and Citizenship [2011] FCA 1281 at [15] (“SZQBT”); Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344 (“Hunter Valley Developments”), Phillips at [10] and Vaenuku at [16]).
The explanation provided by the applicant through his affidavit evidence is that he attended conciliation before the Commission in April 2014 and received a Termination Notice dated 27 May 2014. Within this period he had applied for pro bono assistance with the Law Society of NSW and had provided all the relevant documents on 2 June 2014 to the Society. He was advised on 31 July 2014 that the solicitors, now on the record for the applicant, had been appointed. The applicant claims that his solicitors did not receive a copy of the Termination Notice from the society “due to an oversight” at their office as the documentation had not been returned to the Society by relevant lawyers in the referral scheme. The applicant claims that as the Termination Notice had not been provided to his solicitor “on time”, he was unable to lodge his application. The applicant provided a copy of the relevant documents to his solicitor on 7 August 2014.
The respondent made a number of claims as to the delay in written submissions. The respondent claims that the affidavits provided by the applicant were deficient and did not provide an “adequate explanation for the Applicant’s delay in commencing proceedings” ([15] of respondent’s written submissions).
The respondent contended that there is no evidence before the Court to indicate that the applicant did not understand the effect of the termination or its contents ([11] of the respondent’s written submissions). Further, that there was no evidence before the Court to support the applicant’s claim that he had provided the Termination Notice to the Law Society, that he had provided an explanation as to his failure to approach the Law Society between June 2014 and 26 July 2014, or that he had taken further steps or sought legal advice between 2 June 2014 and 26 July 2014, eight days after the expiration of the limitation period.
The respondent relies on Amponsem to argue that there is no evidence before the Court to suggest that the applicant did not understand the effect of the Termination Notice, and the applicable limitation period. Further, the respondent submitted that the applicant is an “experienced litigant” who has previously instigated proceedings before the Commission and would have understood the relevant limitation period imposed by s.46PO of the Act ([14] of respondent’s written submissions).
Prejudice
Whether the respondent would suffer any prejudice in light of the delay should an extension of time be granted is another relevant factor in considering whether such an application should be granted (Amponsem at [7], SZQBT at [15]; Hunter Valley Developments, Phillips at [10] and Vaenuku at [16]).
The applicant claims at [13] of his affidavit that “there is no prejudice suffered by the respondent”, given that it was decided there was “no reasonable prospect of the matter being settled by conciliation and that itself was the reason for the termination of the Complaint”. The applicant’s written submissions assert that the respondent would suffer no prejudice ([B] of the applicant’s written submissions).
The respondent claimed, without further explanation, that it is “not enough” for the applicant to allege that the respondent will not suffer prejudice by the delay ([21] of the respondent’s written submissions). The respondent claimed that the delay prejudices the respondent, and the affected Executive Committee members of the respondent, by exposing them to further victimisation and harassment in “their management of these proceedings” ([20] of the respondent’s written submissions).
This was said to be due to the fact that the applicant’s allegations were centred on the actions of the Executive Committee during the period 23 August 2012 to 11 September 2013. The respondent submits that the membership of the Executive Committee has been substantially changed due to “the applicant’s harassment and victimisation” during meetings and in relation to his complaint, the previous, and current, proceedings ([18] of the respondent’s written submissions). Further, that former Executive Committee members are concerned with providing further evidence due to concerns about their own safety.
The respondent submits that it, and the Executive Committee, was entitled to believe that the applicant was not pursuing any further claim from 26 July 2014 (the relevant date an application was due).
The Merits of the Substantive Application
An important factor in the consideration of the grant of an extension of time is whether at law the applicant has an arguable case for the orders that he seeks from the Court (Amponsem at [7], SZQBT at [15], Hunter Valley Developments, Phillips at [10] and Vaenuku at [16]).
The following background is relevant to the consideration of the merits of the substantive application.
Applicant’s Claims and Evidence Before the Commission
On or about 8 October 2013, the applicant lodged a complaint with the Commission alleging disability discrimination in clubs or incorporated associations and the provisions of goods, services and facilities and victimisation under the DDA against the respondent. A copy of the complaint form and the response to the complaint were provided with the originating application to this Court.
The applicant alleges that ss.5, 6, 11, 24, 27, 29A and 42 of the DDA were breached by the respondent.
The complaint sets out the circumstances within which the discrimination was said to have occurred in the period from 23 August 2012 to 11 September 2013. The applicant is “profoundly deaf” and the owner-occupier of an apartment in a strata-titled building which has an Owners Corporation and an Executive Committee. The applicant is a member of this Corporation and alleges that he has been discriminated against by this Committee in regard to an incident in 2011, where he a requested a steno-captioning facility so that he could participate at the Annual General Meeting (“AGM”) which was to be held at a “club venue”. The applicant claims discrimination by the respondent following this request.
This complaint was brought to, and finalised by, the Commission in 27 May 2014. The applicant claims that the Owners’ Corporation continues to discriminate against him on an ongoing basis, and that he continues to be victimised and harassed ([1] of the complaint attached to the originating application).
The applicant claims that he was discriminated, harassed and victimised at a number of events. The first of these was said to occur at the Owners Corporation general meeting on 23 August 2012 where the applicant requested steno-captioning ([1] of the complaint attached to the originating application). The applicant claims that when he attended the meeting he was prevented from reading captions on the laptop provided for his use, and that he was advised that he would have to read the captions projected on the meeting room wall.
He advised the Executive Committee that he was unable to read the projected captions due to his disability. However, they “ignored” his objection and proceeded with the meeting. He claimed that on two occasions it said to the audience that “steno-captioning is expensive”. He was singled out by the Executive Committee to prevent him from taking notes. It is alleged that the Executive Committee did not consider how their refusal of reading the laptop would affect the applicant, and his ability to effectively participate in the meeting. The applicant claims that the respondent’s actions were done to cause him difficulty, embarrass him and deter him from attending future meetings ([1] of the complaint attached to the originating application).
The applicant claims that he was discriminated against by the Owners Corporation in regard to the AGM on 29 October 2012 ([2] of the complaint attached to the originating application). The applicant claims that he was “blamed” for incurring unnecessary costs for the Owners Corporation in the organisation of, and in the hiring of, a venue for the AGM.
This was said to be due to the fact that the venue had been hired for the purpose of providing steno-captioning and that the applicant had not attended, nor had he, allegedly, provided notice of his non-attendance within a period which allowed the Owners Corporation to cancel the venue and save itself the money ([2] of the complaint attached to the originating application). The applicant claims that the Executive Committee deliberately avoided asking him about his non-attendance until it was too late to cancel the venue, and he was blamed for incurring unnecessary costs.
The applicant claims that the respondent intentionally breached the terms of the Deed of Settlement and Release signed on 16 January 2013 by failing to pay the settlement sum within the 14 day period ([3] of the complaint attached to the originating application).
Complaint number four is said to be the “[o]wners corporation refusal to consider disability and reimburse accommodation expenses”. This was said to be due to a decision made at the general meeting on 23 August 2012 which meant that works would be carried out on the lift, rendering the lift, the applicant’s only mode of access to his apartment due to his disability, unavailable for a three week period. The applicant claims that over five general meetings the issue of providing assistance to those with a disability during the lift shut down period was not discussed. Further, the letter advising of the lift shut down stated that the event was an “inconvenience that we will all have to endure”. The applicant was “forced” to organise outside accommodation for the period and the Owners Corporation refused his request for reimbursement ([4] of the complaint attached to the originating application).
The applicant further claims that he was discriminated against in the Owners Corporation general meeting of 11 September 2013 when the Owners Corporation refused to again allow a reasonable adjustment to accommodate the applicant’s disability by not allowing him to have acceptable access to read the steno-captioning of the meeting ([5] of the complaint attached to the originating application). He was, allegedly, refused access to the laptop and told to sit in the audience and read the captions projected on the wall. The applicant was unable to participate in the meeting due to his inability to read the captions on the wall. He felt hurt, humiliated, intimidated and victimised by the Executive Committee. He went home “immediately” ([5] of the complaint attached to the originating application).
The applicant claims that the actions of the Owners Corporation have made him feel isolated and unwelcome in his apartment building. He claims that the behaviour of the Owners Corporation has “incited resentment, animosity and anger” towards him by others in the building. The applicant claims that he feels intimidated, humiliated and generally unhappy due to the actions of the Corporation (“Part C” at page 11-12 of the complaint attached to the originating application).
The Respondent’s Claims and Evidence Before the Commission
The response to the applicant’s complaint to the Commission is attached to the originating application that was submitted to this Court. The respondent submits that it was a party to previous proceedings before the Commission, and that those proceedings were subject to a Deed of Release. The “release” of the respondent was said to be for the period up to 15 December 2011.
The respondent submitted to the Commission that any aspects of the applicant’s complaint which relates to the general meeting of 23 August 2012 should be terminated pursuant to s.46PH(1)(b) of the Act as they were lodged more than 12 months after the event of the unlawful discrimination.
Section 46PH(1)(b) of the Act is in the following terms:
“46PH - Termination of complaint
(1) The President may terminate a complaint on any of the following grounds:
(b) the complaint was lodged more than 12 months after the alleged unlawful discrimination took place;”
In the alternative, the respondent denies the conduct alleged by the applicant. The respondent submitted that steno-captioning was arranged for the meeting and that the applicant’s conduct towards the chairperson was “hostile and intimidating”. The applicant had no regard for her needs and welfare ([1] of the respondent’s response to complaint).
Further, the respondent submits that it was never made aware of the applicant having any condition which would affect his vision, or any vision impairment. Once the respondent was made aware of the “impediment”, they took “immediate steps” to rectify the situation, and made no objections to this action ([1] of the respondent’s response to complaint, see at Annexure “B”).
The respondent submitted that the statement alleged by the applicant to have been said at the meeting, that “steno-captioning is expensive”, was taken out of context and that “any such statement was made to allow the meeting to run efficiently and as expeditiously as possible”. The respondent denies that the Chairperson at the meeting deliberately prohibited the applicant from taking notes and sought advice as to whether notes could be taken by anyone in the meeting ([1] of the response to complaint, see at Annexure “B”).
The respondent stated that the allegations in the applicant’s complaint at number two appear to relate to a meeting on 20 October 2012, not 2013. This was at a time when the terms of the Deed of Release in the previous proceedings before the Commission were still the subject of negotiation. The respondent states that the applicant would have been provided with the minutes of the 26 September 2012 meeting on, or around, 3 October 2012 in accordance with Schedule 3 of the Strata Schemes Management Act 1996 (NSW), which identified the date and location of the 29 October 2012 meeting.
The respondent denies making any statements which were to the effect of blaming the applicant for incurring unnecessary costs by not attending the meeting, or that any such statements were made at the meeting. The respondent denied that it delayed asking the applicant if he was attending the meeting, and submits that it was under no requirement to do so ([2] of the respondent’s response to complaint, see at Annexure “B”).
The respondent further denied that it made statements giving the applicant a date within which to respond to the matter of his attendance at the meeting, or that the Executive Committee told the Owners Corporation that they were unable to cancel the venue within time because the applicant had not given notice of his non-attendance. The respondent submitted that it arranged the venue to accommodate the applicant’s needs, and that at no time was he put in a “difficult position” ([2] of the respondent’s response to complaint, see at Annexure “B”).
In relation to complaint number three (see above at [36]), the respondent denies that the delay in payment of the settlement sum under the Deed of Release was a deliberate act “designed” to be in “retribution” towards the applicant, and submits that the delay in paying the monies owed was due to an “administrative oversight” ([3] of the respondent’s response to complaint, see at Annexure “B”).
In relation to complaint number four above (at [36] above), that it was allegedly aware of the applicant having a disability or medical reason which prevented and/or restricted the applicant’s use of the stairs during the lift shut down period, the respondent denies that residents were forced to obtain external accommodation during this period. The respondent submits that it “adequately addressed” the applicant’s request for accommodation reimbursement, and provided options to accommodate his needs during this period. The respondent submits that it was “not unreasonable” to shut down the lift for maintenance and that there was “no requirement” on members of the Corporation to reimburse accommodation requests when all residents were subject to compliance with a particular condition imposed on residents of the building. Any such requirement would be an “unjustifiable hardship for all members” ([4] of the respondent’s response to complaint, see at Annexure “B”).
The respondent denies that it had any knowledge of the applicant’s medical condition at the Owners Corporation AGM on 11 September 2013, that caused him difficulty from reading the steno-captioning on the projected screen ([5] of the respondent’s response to complaint, see at Annexure “B”).
The respondent claimed before the Commission that the applicant had failed to provide any evidence in support of his claims. The respondent submits that the complaints currently at issue were “live” at a time when the parties were negotiating a resolution of the previous proceedings. Further, that the applicant “deliberately” left them out of those proceedings so as to bring a fresh application to make further complaints, and seek further compensation. Additionally, the respondent claims that parts of the applicant’s case are “vexatious”, specifically those in parts 1, 2, and 3 of the applicant’s complaint to the Commission. The respondent denies breaching its obligations under the DDA.
The applicant’s complaints and the respondent’s reply were before the Commission. The parties attended a conciliation conference on 28 April 2014, however, the matter remained unresolved. A delegate of the President of the Commission issued a Notice of Termination of the complaint on 27 May 2014 pursuant to s.46PH(1)(i) of the Act. That is in the following terms:
“46PH Termination of complaint
…
(i) the President is satisfied that there is no reasonable prospect of the matter being settled by conciliation.”
Applicant’s Claims Before the Court
The applicant applied to this Court pursuant to s.46PO of the Act on 15 September 2014.
The grounds of the substantive application to the Court were in the following terms:
“The applicant claims that
1. The applicant alleges discrimination against him by the Respondent who has made him feel unwelcome or humiliated at meetings of the Respondent.
2. The Applicant alleges the Respondent failed to provide for his mobility issues during building maintenance.”
The applicant seeks the following relief:
“1. The Applicant asks the Court for an apology from the Respondent and Compensation of $10,000.00.
2. The amount of $10,000.00 is an unliquidated amount for hurt, distress and humiliation due to the actions of the Respondent.”
The applicant’s written submissions provide an “outline of applicant’s case”. These submissions largely repeat the claims that were set out in his “Complaint Form” before the Commission (see [28] to [39] above). Relevantly, these were that the respondent held a general meeting where steno-captioning was actually provided for the applicant. The applicant alleges that the respondent “intimidated and humiliated him” as he was prevented from reading the captions on a laptop, and had to read them off the wall and no explanation was provided for this. He was told that steno-captioning was expensive and told not to take notes (C.[a] of the applicant’s written submissions).
Respondent’s Claims Before the Court
In reply, the respondent denies that it has discriminated against the applicant as alleged, or at all ([1] of the response to application). Further, that it has not breached or acted in contravention of ss. 5,6, 11, 24, 29A, and 42 of the DDA. The respondent’s written submissions and response are similar to those submissions that were before the Commission.
The respondent claims that some aspects of the applicant’s claims should have been terminated by the Commission, as they are statute barred pursuant to s.46PH(1)(b) of the Act, as they occurred more than 12 months prior to the complaint being made ([2] ‑ [3] of the second part of the response).
The respondent claims it has always made reasonable accommodation and adjustments for the applicant’s disabilities and denies causing him distress, deliberately breaching the terms of the Deed of Release of the previous proceedings before the Commission, or preventing him from taking notes at a meeting. ([4] ‑ [8] of the second part of the response).
While the response seems directed to the grounds of the substantive application, in written submissions, the respondent submitted that the applicant’s complaints do not amount to an arguable case such that an extension of time should be granted ([26] of the respondent’s written submissions).
The respondent submitted that the applicant relies on his complaints as they were articulated before the Commission, but has failed to provide any evidence in support of these complaints ([26] of the respondent’s written submissions).
Further, that the complaints raised by the applicant arose during the time of the previous proceedings before the Commission, and were subject to a Deed of Settlement and Release, or are complaints about the conduct of the respondent in carrying out the terms of the Deed of Release ([24] of the respondent’s written submissions).
The respondent claims that the applicant has failed to raise any new complaints that were not subject to the previous proceedings, or to refer to any situations, or occasions, in which the applicant was treated differently, and to his detriment, when compared to other members of the Owners Corporation ([24] of the respondent’s written submissions).
The respondent asserts that the claim is vexatious in that issues raised by the applicant were subject to a Deed of Settlement or Release or were “live and known” to both parties leading up to the execution of the Deed. The respondent claims that the applicant “deliberately and vexatiously refused to include them in the deed” so as to commence further proceedings against the respondent ([25] of the respondent’s written submissions).
Consideration
The parties generally agreed that in the consideration to extend time the Court should have regard to the following elements:
(1)The length of the delay in making the application to the Court and whether a satisfactory explanation for the delay has been made.
(2)Whether there was any prejudice to the respondent in extending time.
(3)The merits of the claims against the respondent.
The respondent drew attention to what was relevantly said by Judge Cameron in Vaenuku at [15] – [16]:
“[15] In Phillips v Australian Girls’ Choir & Anor [2001] FMCA 109 at [10], McInnis FM set out the principles to be applied in exercising the Court’s discretion whether to grant an extension of time in a human rights application. The principles as summarised by his Honour were 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] FCA 153; (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] FCA 498; (1993) 45 FCR 441 and Dix v Client Compensation Tribunal [1993] VicRp 21; (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] FCA 124; (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] FCA 94; (1983) 47 ALR 528).
[16] In Ferrus v Qantas Airways Ltd at [19] and [20], Collier J quoted the judgment of McInnis FM in Phillips v Australian Girls’ Choir with approval and her Honour also agreed with Phipps FM’s distillation of those seven principles (in Drew v Bates [2005] FMCA 1221) into three matters, namely:
a. explanation for delay;
b. any prejudice to the respondent; and
c. whether the applicant has an arguable case.”
I note what was relevantly said by Farrell J in Amponsen at [7] (see above at [15]).
As stated above, the delay in this case is 49 days. The Termination Notice by the delegate of the President of the Commission was dated 27 May 2014. Section 46PO(2) of the Act requires that applications to this Court be made within 60 days of that date. In the current circumstances, this means the application should have been made on, or before, 28 July 2014 (noting that the sixtieth day, 26 July, is a Saturday). The application was not made until 15 September 2014.
As stated above, the applicant submitted that the reason for the delay was that he had sought pro bono assistance from the Law Society, through its Pro Bono Scheme, on 11 March 2014. It is to be noted that this predates the date of the Notice of Termination from the Commission.
In these circumstances it is not clear, nor does the evidence explain whether the assistance was sought for the purposes of the complaint to the Commission, or in expectation that the Commission would terminate the complaint, or otherwise.
As set out above, that termination was made on 27 May 2014. On the evidence, the Law Society sought assistance from two other firms, prior to approaching the firm currently representing the applicant (1 May 2014 and 17 June 2014). The third and successful referral was made on 23 July 2014.
The applicant’s evidence is that he received the Commission’s notice on or about 29 May 2014. He also gives evidence that he was advised on or about 31 July 2014 that the firm now representing him had “accepted” his case.
The Notice from the Commission makes plain that any application to this Court in relation to the complaint made to the Commission must be made within 60 days of the date of the notice:
“You must apply to the FCCA or the FCA within sixty (60) days of the date on the Notice of Termination.”
[Emphasis in the original.]
In his evidence, the applicant states he is not familiar with “the legal procedure”. That may well be the case. However, the understanding of the simple point in the Notice, relating to the relevant time limit, does not, in my view, require any such knowledge or understanding. The advice to the applicant speaks for itself. Further, there is no evidence from the applicant that he pursued the offer from the Commission in its letter to ask questions about the letter. Nor is there any evidence from the applicant that he did not understand the simple terms of this part of the letter.
On the applicant’s own evidence, therefore, it appears he was content, notwithstanding the relevant time limit, to allow time to elapse while the Law Society sought legal assistance for him. There is no evidence from the applicant that he pursued, or pressed, the Law Society in light of the time limit. Nor is there any evidence that he took any other steps to facilitate the application to the Court by seeking legal advice elsewhere (for example, from any community legal centre). Nor was there any direct evidence as to why he may have been unable to do so.
Further, as set out above, the applicant relies on the evidence of Ms Harvey to submit that the delay from 23 July 2014 (when the referral was made to the applicant’s current solicitors) to 7 August 2014, when he was informed by the solicitors that the complaint to the Commission and the Notice of Termination had not been received by his solicitors from the Law Society, was occasioned by this “oversight” by the Law Society.
What is not explained on the evidence is that having received and accepted a referral in a Human Rights matter (which, on the evidence, was on 23 July 2014) the solicitors took no timely action to obtain what are, after all, basic documents in such matters.
The evidence is that the solicitors “received instructions” from the Law Society on 24 July 2014. The applicant’s evidence is that he did not know of this until 31 July 2014. Even in these circumstances, there is no evidence to show that either the solicitors, or the applicant, sought to communicate earlier that 7 August 2014. No satisfactory explanation is available therefore as to why, on receiving, and accepting, the referral on 24 July 2014, no action was relevantly taken until 7 August 2014.
Having received the relevant documents on 7 August 2014, the application was still not made until 15 September 2014. There is some evidence to say that the solicitors took some action. That is, the preparation and dispatch of a draft affidavit for the applicant to execute. However, the evidence does not give a precise time for this. In any event, that document was not returned to the solicitors until 11 September 2014. There is no satisfactory explanation for this delay in relation to this period of time. A period of time when the application to the Court was out of time.
Before the Court the applicant argued that the delay in making the application can also be explained when regard is had to his physical and medical condition, and the difficulties this presented to him in making his application.
There is the applicant’s own evidence that he suffers “from deafness, eye issues and mobility issues.” The respondent did not seek to test or challenge this evidence. On what is before the Court, therefore, that evidence must be accepted.
However, what is missing from the applicant’s evidence is how these medical and physical conditions affected his capacity to pursue the making of his application in a timely fashion. In the absence of any such evidence it is not open to the Court to make assumptions as to how that may have affected the applicant’s capacity to pursue matters with his lawyers.
I note that Mr Simons, in his affidavit, gives evidence that if he wishes to speak to the applicant by “…telephone, it can only be via a special telephone service for which [the applicant] has to travel about one hour to get to…” ([7] of the affidavit of Mr Simon). However, even if this were generally the case it does not reasonably explain how this prevented the applicant from pursuing the preparation of the application in the actual time available to him.
In any event, it was the applicant’s own evidence that he communicated with the Law Society by email (see [10] of the Mr Howell’s affidavit). There is no evidence that such a means of communication presented difficulties for the applicant, or why it was not used to communicate with his solicitor once the matter had been referred to him. The applicant’s written submissions to this Court were filed in a document containing the letterhead of the firm of solicitors which included an email address. The applicant, on his own evidence did otherwise communicate with his solicitor on 7 August 2014 by this means ([11] of the applicant’s affidavit of 15 September 2014).
During the hearing of the application for the extension of time the applicant handed up a number of cases. These were Laganis v Roberts Unreported, SASC 4043 15 July 1993 (“Laganis”), Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178 (“Tyler”) and McKenna v McKenna [1984] VicRp 58; [1984] VR 665. The applicant sought to make a number of submissions in light of these authorities.
In particular, the submission was that these cases all dealt with the delay in the prosecution of various matters before different Courts. The “applicants” were “successful” in overcoming the “consequences” of the delay, even though the period of delay was far greater than the current case (for example in Tyler, some 15 months, see at [37]).
I agree with the respondent that these cases were, respectfully of, at least, limited assistance in the current case. Each case arose from a context markedly different to the current situation in at least one important respect. Each case involved an appeal from a lower Court in which delays had occurred in the prosecution, or defence, during the lower Court proceedings. In the current case the relevant context is one of an extension of time to make a competent application under the relevant statute, not delay during Court proceedings.
I understood the applicant to submit that the Court should derive from these cases elements relevant to the current consideration, in addition to those elements set out in Amponsem and Vaenuku and the authorities referred to in that case.
However, other than the matter of “substantial injustice” (see further below), the applicant did not satisfactorily identify what these relevant elements were. I should note that the matter of the length of the delay (greater in some cases) does not assist the applicant now, as each case must be assessed in the circumstances presented in that case. A delay of some weeks in some circumstances may be reasonably explained, and not so in other circumstances.
As set out above, the cases to which the applicant referred all concerned delay in the context of pursuing matters already before a Court. This was due to conduct, or lack of action, by a solicitor involved in the proceedings.
The submission now is that the delay in making the application was due to the failure of the Law Society to forward the relevant documents to the applicant’s solicitors in a timely fashion. Two things may be said here.
First, even if this were the case that would only explain the delay for a part of the period (23 July 2014 when the “referral” to the applicant’s solicitors was made to 7 August 2014 when the documents were emailed to the solicitors by the applicant).
Second, and of greater import, there is no evidence of negligence in the current case. In submissions, the applicant pointed to Ms Harvey’s affidavit to submit she was a solicitor. That may be the case, but there was no evidence that she acted in the capacity of, or as part of a solicitor/client relationship, as was the case in the authorities on which the applicant relies, and in which the impugned conduct was considered by those Courts.
In any event, at its highest, the evidence before the Court is that the documents were not sent to the solicitors from the Law Society in a timely fashion because of an “oversight”. There is no evidence that there was negligent conduct.
In all therefore, I find that the applicant has not provided a satisfactory, or reasonable, explanation for the delay.
The second relevant element in the consideration of the question of the extension of time is whether the respondent would be prejudiced if time were to be extended. The applicant says it would not. However, he does not explain why that is the case.
The respondent has provided no evidence to support the proposition that it would suffer prejudice. The respondent did make submissions on this issue. Even if these submissions where to have been made based in some evidentiary context (they were not), they would not assist the respondent.
In essence, the respondent says that during the period of the “alleged” complaints (23 August 2012 to 11 September 2013), the respondent’s Executive Committee, against which the applicant’s allegations are focussed, changed substantially because of concerns about their own safety, and welfare, due to victimisation and harassment by the applicant. The submission was that these persons would be reluctant to give evidence because of this, and that they would have to be subpoenaed to do so.
Even if that were the case (there is no evidence before the Court), it must be remembered that prejudice to the respondent, to be relevant to the consideration, must flow from the delay. Any fear claimed by those potential members would, on the explanation proffered by the respondent now, exist even if the application had been made within time. As to changes in the Committee’s membership there was nothing from the respondent to say that the delay would cause prejudice because of this.
I find that the respondent would not be prejudiced if time were to be extended.
The third element for consideration in the exercise of the discretion pursuant to s.46PO(2) of the Act is whether there is merit in the claims in the application, such that it can be said the applicant has an arguable case that would press for the extension of time so that the arguments can be heard.
The applicant has not filed any points of claim in these proceedings. His submissions directed attention to the “complaint” raised in the documents submitted to the Commission, which is attached to the application form lodged in this Court.
These are:
“1. Owners' corporation general meeting of 23 August 2012.
2. Owners' corporation annual general meeting of 29 October 2012.
3. Breach of contract in discrimination Deed of Settlement and Release.
4. Owners' corporation refusal to consider disability and reimburse accommodation expenses.
5. Owners' corporation annual general meeting of 11 September 2013.”
These were each briefly addressed in written submissions.
The applicant submitted that each of those matters goes to the question of direct discrimination under the Act (s.5 of the DDA) and as that term, in part, is understood in light of s.25 of the DDA.
As set out above it is to be noted that the complaint which is the subject of the current proceedings is the second complaint made by the applicant against the respondent to the Commission. The first complaint was finalised by a Deed of Release said to have been signed by the applicant on 11 December 2012 and by the respondent on 16 January 2013. The parties agreed that the Deed relates to conduct and events up to mid-December 2011.
The applicant’s second complaint to the Commission was made on 8 October 2013 and terminated by the President’s delegate on 27 May 2014. The incidents involving the alleged conduct on which the applicant now relies occurred on :
1. 23 August 2012.
2. 29 August 2013.
3. At a time following the signing of the Deed of Release.
4. First raised August 2012 and then discussed at all meetings including the event of June 2013.
5. 11 September 2013.
All of these matters were raised in the second complaint to the Commission.
In its response, the respondent stated that “…aspects of the complaint are statute barred pursuant to Section 46PH(1)(b)” of the Act (at [3] of Part 2 if Annexure “A” of the response).
In addition, at Part C, question “4”, of the response, the respondent claimed that “[t]he Applicant is statute barred” pursuant to 46PO(2) of the Act”. I note that the power set out in s.46PO(2) of the Act is a discretionary power for this Court to extend the time for the making of a substantive application. The parties have agreed to the relevant principles for the exercise of the discretion.
In submissions before the Court, the respondent submitted that in relation to whether the application raised an arguable case “…there is still a live argument with respect to the limitation period of …s.46PH” (in context, a reference to s.46PH(1)(b) of the Act). That section is in the following terms:
“46PH - Termination of complaint
(1) The President may terminate a complaint on any of the following grounds:
(b) the complaint was lodged more than 12 months after the alleged unlawful discrimination took place;”
I do not agree with the respondent that this remains a live issue for current purposes. The section provides a discretion to the President (or the delegate) of the Commission to terminate a complaint on any of the grounds set out in that section.
The respondent submits now that events occurring more than 12 months before the complaint to the Commission was made are “statute barred” (presumably from action in this Court) because of s.46PH(1)(b) of the Act. This argument must be rejected. This section gives relevant discretion to the President. Events which do fall outside the 12 month period are not mandatorily barred, if that is what the respondent’s submission seeks to argue.
In the current case, the President’s delegate elected to terminate the complaint on the basis of s.46PH(1)(i) of the Act, not s.46PH(1)(b) of the Act. On this basis this argument cannot assist the respondent.
The respondent also argues that the “current” allegations arose during ([23] of the respondent’s written submissions):
“previous proceedings before the AHRC and were the subject of a deed of settlement and release, or in respect of conduct carried out by the Respondent in accordance with the terms of the deed of settlement and release.”
That must be rejected, certainly, in relation to items 4 and 5 ([113] above) which related to conduct said to have occurred after the signing of the Deed. Further, items 1, and 2, while said to have occurred before the making of the Deed, occurred after the date to which the parties agreed was the relevant date for the operation of the Deed. In that light they cannot be said to have been the “subject” of the Deed, or conduct carried out in accordance with the terms of the Deed. That is, after the making of the Deed.
The respondent further argues, in relation to items 1 and 2, that the applicant “vexatiously” refused to include them in the Deed so that he could pursue a second complaint. There is no evidence before the Court from which such an inference may be reasonably drawn, let alone supported at present.
It must be said there was no satisfactory argument by the respondent before the Court as to why items 1, 2, 4, 5 (as set out at [111] above) do not raise any arguable case (beyond the assertion that they do not). Therefore, I can only have regard to these matters as they arise from the (second) complaint to the Commission. I am satisfied on the applicant’s submissions that an arguable case does exist. Although, I note that the matters alleged would still be required to be proved, such that any, or all, could be said to amount to contraventions of the DDA and therefore could sound in damages and relevant orders.
As to item 3, the respondent raised the issue of whether this Court had jurisdiction to consider that item given it relates to allegations of breaches of the Deed.
I note that this Court’s jurisdiction arises from s.46PO(1) of the Act, in relation to complaints terminated by the President, relevantly, pursuant to s.46PH of the Act. Item 3 was part of the complaint terminated by the President’s delegate pursuant to s.46PH of the Act. There may be other arguments in support of the respondent’s proposition now, but none were raised at the hearing before the Court. In any event, it is not necessary to determine this point, at this time, given what is set out below.
Drawing on the relevant elements to the exercise of the Court’s discretion, it is necessary to balance the lack of a reasonable explanation for the delay in making the application by the applicant, with the lack of prejudice to the respondent, and with the finding that in relation to four separate items there is, at least, an arguable case to raised.
In my view, the arguable allegations are of such character that they attract greater weight than the failure to provide a satisfactory explanation for a delay of 49 days in making the application. The respondent asserted there was no arguable case raised, but beyond such assertions did not satisfactorily engage with the question of whether there was an arguable case.
Conclusion
In these circumstances, and in circumstances where I have found that the respondent is not prejudiced by the delay, I am satisfied that it is appropriate to extend the time for the making of the initiating application to the date of its filing with the Courts’ Registry. I will make such an order.
I certify that the preceding one hundred and twenty-three (123) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 17 July 2015
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