Ingram-Nader v Brinks Australia Pty Limited

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FEDERAL COURT OF AUSTRALIA

Ingram-Nader v Brinks Australia Pty Limited [2005] FCA 1541

PRACTICE AND PROCEDURE – leave to appeal – matter of practice and procedure – interlocutory judgment – interference with exercise of discretion - sufficient doubt to warrant reconsideration

HUMAN RIGHTS – extension of time – principles to be applied – prejudice – merits of application – evidence from bar table - procedural fairness

Human Rights and Equal Opportunity Commission Act 1986 (Cth) - ss 46PH and 46PO
Sexual Discrimination Act 1984 (Cth) – ss 27 and 106

Australian Coal and Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621 referred to
Comcare v A'Hearn (1993) 45 FCR 441 cited
Décor Pty Limited v Dart Industries Inc (1991) 33 FRC 397 applied
Dix v Crimes Compensation Tribunal (1993) 1 VR 297 cited
Doyle v Chief of Staff (1982) 42 ALR 283 cited
Drew v Bates & Anor [2005] FMCA 1221 referred to
House v R (1936) 55 CLR 419 applied
Kioa v West (1985) 159 CLR 550 referred to
Minogue v Williams (2000) 60 ALD 366 referred to

Pham v Commonwealth of Australia [2002] FCA 669 referred to

Phillips v Australian Girls Choir Pty Limited [2001] FMCA 109 referred to
Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 cited
Wedesweiller v Cole (1983) 47 ALR 528 cited

NEHME INGRAM-NADER v BRINKS AUSTRALIA PTY LIMITED

NSD 1812 of 2005

JACOBSON J
3 NOVEMBER 2005
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1812 of 2005

BETWEEN:

NEHME INGRAM-NADER
APPLICANT

AND:

BRINKS AUSTRALIA PTY LIMITED
RESPONDENT

JUDGE:

JACOBSON J

DATE OF ORDER:

3 NOVEMBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.     Leave be granted to the applicant to appeal from the decision of Federal Magistrate Driver dismissing an application for an extension of time.

2.     The grounds of appeal be limited to whether the Federal Magistrate erred in his consideration of:

(a)   the test of whether  the respondent was prejudiced by the delay; and

(b)   whether the respondent was liable for the actions of its employees in light of s106 of the Sexual Discrimination Act 1984 (Cth).

3.     The applicant file and serve a notice of appeal identifying the grounds of appeal in or to the effect of the terms contained in order 2 above.

4.     Costs of the application be costs in the appeal.

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


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1812 of 2005

BETWEEN:

NEHME INGRAM-NADER
APPLICANT

AND:

BRINKS AUSTRALIA PTY LIMITED
RESPONDENT

JUDGE:

JACOBSON J

DATE:

3 NOVEMBER 2005

PLACE:

SYDNEY

REASONS FOR JUDGMENT

Introduction

  1. This is an application for leave to appeal against the interlocutory orders and judgment of Federal Magistrate Driver dated 19 September 2005. On that date the learned magistrate dismissed an application to extend time to apply to the Federal Magistrates Court (“FMC”) for relief under s 46PO(2) of the Human Rights…

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Details
Case
[2005] FCA 1541
Decision Date

CaseChat Overview and Summary

Ingram-Nader brought proceedings against Brinks Australia Pty Limited, alleging sexual harassment and discrimination during his employment from 1998 to 2004. Ingram-Nader claims that he was subjected to ridicule, discrimination, and abuse on a daily basis, including verbal and physical harassment, and that the respondent is vicariously liable for these actions under the Sexual Discrimination Act 1984 (Cth). Ingram-Nader filed his complaint with the Human Rights and Equal Opportunity Commission (HREOC) on 20 December 2004, but it was terminated on 1 June 2005 for lack of reasonable prospects of conciliation. He subsequently applied to the Federal Magistrates Court for an extension of time to file his proceedings, which was denied by Federal Magistrate Driver. The central legal issues in this case were whether the applicant had a valid explanation for the delay in filing his application and whether the delay caused any prejudice to the respondent. Ingram-Nader argued that his delay was due to his mental and physical disabilities, which were exacerbated by the termination of his HREOC complaint. The court considered the principles established in Phillips and found that while the applicant's explanation for the delay was not unreasonable, the termination of the HREOC complaint provided an opportunity for him to institute proceedings, which he failed to do. The court ultimately denied the application for an extension of time. The court's decision was based on a careful consideration of the principles governing the grant of leave to appeal and the specific circumstances of the case. It found that the applicant's explanation for the delay, while not unreasonable, did not sufficiently justify the delay given the opportunity to proceed with the complaint after the HREOC termination. The court also noted that the applicant had not demonstrated any prejudice to the respondent due to the delay. The appeal was limited to specific grounds, focusing on whether the Federal Magistrate erred in considering the respondent's potential prejudice and the vicarious liability of the respondent under the SDA. The court granted leave for the applicant to appeal, limited the grounds of appeal, and ordered the applicant to file a notice of appeal within the specified terms. The costs of the application were to be borne by the applicant in the appeal.

Orders

Orders of the court

1. Leave be granted to the applicant to appeal from the decision of Federal Magistrate Driver dismissing an application for an extension of time.

2. The grounds of appeal be limited to whether the Federal Magistrate erred in his consideration of:

(a) the test of whether the respondent was prejudiced by the delay; and

(b) whether the respondent was liable for the actions of its employees in light of s106 of the Sexual Discrimination Act 1984 (Cth).

3. The applicant file and serve a notice of appeal identifying the grounds of appeal in or to the effect of the terms contained in order 2 above.

4. Costs of the application be costs in the appeal.

Background

Background to the litigation

There was no real dispute about the principles which apply to the grant of leave to appeal. The applicant accepted that it was necessary to demonstrate that his Honour’s decision was attended by sufficient doubt to warrant reconsideration and that substantial injustice would result; Décor Pty Limited v Dart Industries Inc (1991) 33 FRC 397 (“Décor”). However, the learned magistrate’s decision was made in the exercise of his discretion on a matter of practice and procedure, as to which the courts ordinarily show caution in the grant of leave. It is true that the decision has the practical effect of finally determining the applicant’s rights in relation to his complaint of discrimination; nevertheless, an appellate court will not lightly interfere with the exercise of the discretion; Minogue v Williams (2000) 60 ALD 366 at [18] – [19] per Ryan, Merkel and Goldberg JJ; Australian Coal and Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621 at 627 per Kitto J. Background The substantive proceedings concern allegations of sexual harassment as defined in s 28A of the Sexual Discrimination Act 1984 (Cth) (“SDA”). The applicant claims that over a period of several years spanning 19 December 1998 to 31 August 2004, whilst in the employment of the respondent, he was subject to sexual harassment consisting of ridicule, discrimination and abuse. The applicant claims that respondent is vicariously liable for the actions of its employees, pursuant to s106 of the SDA. The applicant commenced employment with the respondent as a Despatch Officer (Security Guard) in 1998. In his written complaint to HREOC, dated 20 December 2004, the applicant states that at a work Christmas party in December 1998 he told his colleagues that he was bi-sexual. From this point onwards, he was the subject of continued sexual harassment in the form of verbal and physical abuse, including “stares, whispers and sexual and lewd comments from other staff and crew members”. The applicant claims the abuse was daily and nightly, from both supervisors and road crews. Attached to his complaint was evidence of harassment which took written and pictoral form, and statements from other employees of the respondent describing the harassment of the applicant. The applicant injured his lower back during the course of his normal duties on in November 2001 and again in December 2002. As a result of these injuries, there were periods when the applicant was unable to work or was only able to perform restricted duties. The applicant claims that he continued to be the subject of harassment when he attended the workplace to provide medical certificates. Attached to the applicant’s complaint are copies of medical certificates dated 1 November 2002, 11 April 2003, 9 September 2003 and 2 October 2003 which diagnose the applicant as suffering “anxiety depression” and “depression and chronic pain secondary to back injury”. The applicant’s complaint to HREOC was terminated on 1 June 2005 on the grounds that there were no reasonable prospects of the matter being settled by conciliation. Application to the Federal Magistrates Court

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

JACOBSON J
As Federal Magistrate Phipps observed in Drew v Bates & Anor [2005] FMCA 1221 at [14], the principles in Phillips fall into three categories; firstly, whether there is an explanation for the delay, although there is no onus to establish this; secondly, whether the applicant has an arguable case; and finally, whether there is any prejudice to the respondent occasioned by the delay.Decision of Federal Magistrate Driver The applicant relied on an affidavit sworn on 26 August 2005 setting out the basis upon which he made his complaint to HREOC. The applicant provided a statement of reasons for seeking an extension of time in an attachment to his application. In this statement, there is reference to a report of Ms Stern, Rehabilitation Psychologist, dated 24 January 2005, which diagnoses the applicant as suffering “depression with comorbid anxiety symptoms and a major adjustment disorder”. The applicant stated that he “reacted badly” to the decision of HREOC to terminate his complaint and “became very depressed”. He states that he has suffered from depression and chronic pain since his back injury in November 2001, and concludes that:-“Since the HREOC decision I have been unable to face the physical and emotional barrier of attending court and filling out and filing forms.” The applicant also relied upon an affidavit of his solicitor, Mr Grosart, dated 16 September 2005. Mr Grosart deposes that the applicant informed him that after the HREOC termination on 1 June 2005, the applicant took no further steps until 27 June 2005 when he applied to Legal Aid; the applicant stated that he was suffered from a serious depressive illness and chronic back pain during this period. The applicant also informed him that upon applying to Legal Aid, he took no further steps in relation to the court proceedings as he was waiting determination of his Legal Aid application. Mr Grosart noted that the application to Legal Aid made no reference to HREOC terminating the complaint, and so at the time the application was made, Mr Grosart was not alive to the fact that a time limit for filing proceedings would shortly expire. Mr Grosart gave evidence that he was on leave and then out of the office between 27 June and 12 August 2005. The applicant’s application for Legal Aid came to his attention on 15 August 2005, but he still had not appreciated a time limitation issue that needed to be addressed. He telephoned the applicant on 25 August 2005 to make an appointment to obtain instructions and during this conversation he ascertained the true status of the matter. Upon obtaining instructions on 26 August 2005, he attended to filing the appropriate documents in the Federal Magistrates Court on that date. In his reasons for decision, Federal Magistrate Driver referred to the principles in Phillips and turned first to consider the applicant’s explanation for the delay. He noted the applicant’s explanation that he suffers from both mental and physical disabilities. He observed that the applicant relied on the report of Ms Stern, which was issued approximately six months before HREOC terminated the complaint. He also noted the applicant’s contention that his depression was exacerbated by the termination by HREOC. In the reasons for his decision, the learned magistrate observed that he found this explanation:-“a little difficult to understand, given that the outcome was not a defeat for the applicant.It opened up the opportunity for him to institute proceedings in this court and he was so advised in the letter from the delegate of the President of the Commission accompanying the notice of termination.”

Ratio Decidendi

Legal Principle Established

Established by: JACOBSON J

Full text does not contain this section.