Ingram-Nader v Brinks Australia Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Ingram-Nader v Brinks Australia Pty Ltd [2006] FCA 624

INTERPRETATION – alleged unlawful discrimination in workplace – vicarious liability of employer – effect of s 106 of the Sex Discrimination Act 1984 (Cth)

PRACTICE AND PROCEDURE – application for leave to file application out of time – principles to be applied – prejudice – whether prejudice relating to events occurring before the commencement of time to file application may be taken into account

PRACTICE AND PROCEDURE – alleged unlawful discrimination in workplace – proceedings against employer on the basis of vicarious liability – whether joinder required of employees engaging in unlawful discrimination – whether employer severally liable

Administrative Decisions (Judicial Review) Act 1977 (Cth)
Human Rights and Equal Opportunity Commission Act 1986 (Cth) ss 46P, 46PH, 46PO
Sex Discrimination Act 1984 (Cth) ss 3, 28A, 28B, 106

Federal Court Rules O 6 r 5

Australian Coal and Shale Employees’ Federation and Anor v The Commonwealth and Ors (1953) 94 CLR 621 cited
Duff and Ors v Freijah and Ors (1982) 62 FLR 280 considered
Gilroy v Angelov (2000) 181 ALR 57 followed
Hickey and Ors v Australian Telecommunications Commission (1983) 47 ALR 517 considered
House v The King (1936) 55 CLR 499 cited
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 followed
Lovett v Le Gall (1975) 10 SASR 479 considered
Pham v Commonwealth of Australia [2002] FCA 669 cited
Pinecot Pty Ltd v Anti-Discrimination Commissioner [2001] NTSC 107 referred to
Phillips v Aust Girls’ Choir & Anor [2001] FMCA 109 approved
The Koursk [1924] P 140 considered
Thompson v Australian Capital Television Pty Ltd and Ors (1996) 141 ALR 1 considered
Wedesweiller and Ors v Cole and Ors (1983) 47 ALR 528 considered

NEHME INGRAM-NADER v BRINKS AUSTRALIA PTY LTD
NSD 1812 of 2005

COWDROY J
26 MAY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1812 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

NEHME INGRAM-NADER
Appellant

AND:

BRINKS AUSTRALIA PTY LTD
Respondent

JUDGE:

COWDROY J

DATE OF ORDER:

26 MAY 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.   The appeal be allowed.

2.   The decision of Federal Magistrate Driver delivered on 19 September 2005 be set aside.

3.   The time for the appellant to file the application be extended to 26 August 2005.

4.   The application be remitted to the Federal Magistrates Court for directions and determination.

5.   The respondent pay the appellant’s costs of the appeal.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1812 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

NEHME INGRAM-NADER
Appellant

AND:

BRINKS AUSTRALIA PTY LTD
Respondent

JUDGE:

COWDROY J

DATE:

26 MAY 2006

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. These proceedings concern a claim of sexual harassment made by the appellant against the respondent, his former employer. On 20 December 2004 the appellant made a complaint to the Human Rights and Equal Opportunity…

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Details
Case
[2006] FCA 624
Decision Date

CaseChat Overview and Summary

Ingram-Nader v Brinks Australia Pty Ltd is an appeal against the decision of Driver FM, who refused the appellant's application for an extension of time to file proceedings in the Federal Magistrates Court. The appellant had lodged a complaint of sexual harassment with HREOC on 20 December 2004, and HREOC terminated the complaint on 1 June 2005. The appellant applied for an extension of time to bring proceedings against the respondent, the employer, but Driver FM refused the application, finding that the delay was significant, the explanation for the delay was only partially convincing, and the respondent would suffer real and substantial prejudice if the proceeding continued.

The legal issues in this case are whether the learned Federal Magistrate erred in his consideration of the test of whether the respondent was prejudiced by delay, and whether the learned Federal Magistrate erred in his consideration of whether the respondent was liable for the actions of its employees, having regard to s 106 of the SDA. The court considered the principles in Phillips v Aust Girls’ Choir & Anor [2001] FMCA 109, which were approved by this Court in Pham v Commonwealth of Australia [2002] FCA 669. The court found that Driver FM had applied those principles correctly, but the appellant had not established that the delay caused no or negligible prejudice to the respondent. The court found that the delay caused real and substantial prejudice to the respondent because the individuals allegedly responsible for the harassment were no longer employed by the respondent and one relevant witness was no longer in Australia.

The court allowed the appeal, set aside the decision of Driver FM, extended the time for the appellant to file the application to 26 August 2005, remitted the application to the Federal Magistrates Court for directions and determination, and ordered the respondent to pay the appellant’s costs of the appeal. The court held that the appellant had made out a strong case for an extension of time, but the respondent had made out a strong case for refusing an extension of time. The court balanced the competing considerations and found that the appellant’s delay was not justified and the respondent’s prejudice was real and substantial.

Orders

Orders of the court

1. The appeal be allowed.

2. The decision of Federal Magistrate Driver delivered on 19 September 2005 be set aside.

3. The time for the appellant to file the application be extended to 26 August 2005.

4. The application be remitted to the Federal Magistrates Court for directions and determination.

5. The respondent pay the appellant’s costs of the appeal.

Background

Background to the litigation

The appellant appealed the judgment of Driver FM to this Court. Because Driver FM’s decision was interlocutory, the appellant required leave to appeal. On 3 November 2005, Jacobson J granted leave to appeal confined to two questions, namely:1)whether the learned Federal Magistrate erred in his consideration of the test of whether the respondent was prejudiced by delay; and 2)whether the learned Federal Magistrate erred in his consideration of whether the respondent was liable for the actions of its employees, having regard to s 106 of the SDA. FACTS The appellant commenced employment with the respondent in July 1998. The alleged sexual harassment commenced in December 1998. In approximately September 2003 the appellant ceased attending the workplace due to an employment-related injury. He alleges that a further incident of harassment occurred on 30 August 2004 when he returned to the workplace to provide documentation to the respondent. In approximately September 2005 the appellant’s contract of employment with the respondent was terminated. On 20 December 2004 the appellant lodged his complaint with HREOC. HREOC notified the respondent of the appellant’s complaint on 3 March 2005. Section 46PH(1) of the HREOC Act relevantly provides: ‘(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)the President is satisfied that there is no reasonable prospect of the matter being settled by conciliation.’ The President of HREOC terminated the complaint against the respondent by notice of termination dated 1 June 2005. In his reasons for termination, the President referred to the fact that the respondent was unwilling to attend a conciliation conference to attempt to resolve the matter. For various reasons the appellant did not apply for legal aid until 27 June 2005, two days before the prescribed period was due to expire. Legal Aid was unable to lodge his application with the Federal Magistrates Court until 26 August 2005 due to the time required to process his application and the absence on leave of the solicitor handling the matter,.THE DECISION OF DRIVER FM In refusing the leave application Driver FM considered the principles in Phillips v Aust Girls’ Choir & Anor [2001] FMCA 109 (‘Phillips’), which were approved by this Court in Pham v Commonwealth of Australia [2002] FCA 669. There is no dispute between the parties concerning the applicability of those principles; rather the dispute relates to the application by Driver FM of those principles. The paragraphs of his Honour’s reasons which relate to the issues in the current appeal are as follows:‘The issues arising in the matter date from around 1998, although they extended through to 2004. Mr Gurran, for the respondent, put to me that the allegations made to HREOC came as a surprise to the respondent and the respondent rather thought that the issues might have been resolved at the termination of the complaint. A fourth relevant consideration is any prejudice in defending the proceedings occasioned by the delay.This is a material factor against the grant of an extension, see Doyle at page 287. I regard the issue of prejudice in this case as a significant factor. The complaint to HREOC was against the employer only even though it was a complaint of sexual harassment by reason of the applicant’s sexual preference. No complaint having been made against the alleged harassers, no proceeding can now be brought in this court against those persons. The jurisdiction of the court is limited to considering the claim against the harasser’s employer and would be based on asserted vicarious liability. For its part, the respondent asserted before HREOC that the allegations of harassment came as a surprise.…The events complained of go back up to seven years. The respondent asserts that the individuals allegedly responsible for the harassment are no longer employed by the respondent and one relevant witness is no longer in Australia. There would be real difficulty facing the respondent in dealing with the allegations in this Court. … The sixth consideration is that the merits of the substantive application are properly to be taken into account in considering whether an extension of time should be granted. The material put before HREOC and before the court to this point is sufficient to establish a prima facie case of sexual harassment against the persons allegedly responsible for that harassment. That is not the same thing as establishing a prima facie case against the single respondent, the employer, which would depend upon proof of vicarious liability. At this stage and particularly if the only evidence available is that of the applicant I would have to say that the prospects of success of the application against the respondent are uncertain. …… He [the applicant] could have brought that complaint forward rather earlier than he did. He certainly could and in my view should have pursued his rights in this court more promptly than he did. Having regard to the length of the delay in this matter which in my view is significant, the explanation for the delay which in my view is only partially convincing, the prejudice to the respondent if the proceeding continues, which in my view is real and substantial, and the interests of the administration of justice, I have come to the view that the application for an extension of time should be refused and I will so order.’PRINCIPLES RELATING TO AN APPLICATION FOR LEAVE

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

COWDROY J
For various reasons the appellant did not apply for legal aid until 27 June 2005, two days before the prescribed period was due to expire. Legal Aid was unable to lodge his application with the Federal Magistrates Court until 26 August 2005 due to the time required to process his application and the absence on leave of the solicitor handling the matter,.THE DECISION OF DRIVER FM In refusing the leave application Driver FM considered the principles in Phillips v Aust Girls’ Choir & Anor [2001] FMCA 109 (‘Phillips’), which were approved by this Court in Pham v Commonwealth of Australia [2002] FCA 669. There is no dispute between the parties concerning the applicability of those principles; rather the dispute relates to the application by Driver FM of those principles. The paragraphs of his Honour’s reasons which relate to the issues in the current appeal are as follows:‘The issues arising in the matter date from around 1998, although they extended through to 2004. Mr Gurran, for the respondent, put to me that the allegations made to HREOC came as a surprise to the respondent and the respondent rather thought that the issues might have been resolved at the termination of the complaint. A fourth relevant consideration is any prejudice in defending the proceedings occasioned by the delay.This is a material factor against the grant of an extension, see Doyle at page 287. I regard the issue of prejudice in this case as a significant factor. The complaint to HREOC was against the employer only even though it was a complaint of sexual harassment by reason of the applicant’s sexual preference. No complaint having been made against the alleged harassers, no proceeding can now be brought in this court against those persons. The jurisdiction of the court is limited to considering the claim against the harasser’s employer and would be based on asserted vicarious liability. For its part, the respondent asserted before HREOC that the allegations of harassment came as a surprise.…The events complained of go back up to seven years. The respondent asserts that the individuals allegedly responsible for the harassment are no longer employed by the respondent and one relevant witness is no longer in Australia. There would be real difficulty facing the respondent in dealing with the allegations in this Court. … The sixth consideration is that the merits of the substantive application are properly to be taken into account in considering whether an extension of time should be granted. The material put before HREOC and before the court to this point is sufficient to establish a prima facie case of sexual harassment against the persons allegedly responsible for that harassment. That is not the same thing as establishing a prima facie case against the single respondent, the employer, which would depend upon proof of vicarious liability. At this stage and particularly if the only evidence available is that of the applicant I would have to say that the prospects of success of the application against the respondent are uncertain. …… He [the applicant] could have brought that complaint forward rather earlier than he did. He certainly could and in my view should have pursued his rights in this court more promptly than he did. Having regard to the length of the delay in this matter which in my view is significant, the explanation for the delay which in my view is only partially convincing, the prejudice to the respondent if the proceeding continues, which in my view is real and substantial, and the interests of the administration of justice, I have come to the view that the application for an extension of time should be refused and I will so order.’PRINCIPLES RELATING TO AN APPLICATION FOR LEAVE

Ratio Decidendi

Legal Principle Established

Established by: COWDROY J

Full text does not contain this section.