Kaszyckyj v Australian Taxation Office
[2019] FCCA 3381
•8 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KASZYCKYJ v AUSTRALIAN TAXATION OFFICE | [2019] FCCA 3381 |
| Catchwords: PRACTICE & PROCEDURE – Application for leave for an extension of time to bring a proceeding – relevant considerations. |
| Legislation: Age Discrimination Act 2004 |
| Cases cited: Reurich v Sureway Employment and Training Pty Ltd [2018] FCA 680 |
| Applicant: | PAUL KASZYCKYJ |
| Respondent: | AUSTRALIAN TAXATION OFFICE |
| File Number: | SYG 1079 of 2019 |
| Judgment of: | Judge Cameron |
| Hearing date: | 8 October 2019 |
| Date of Last Submission: | 8 October 2019 |
| Delivered at: | Sydney |
| Delivered on: | 8 October 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr E White |
| Solicitors for the Applicant: | Adams Wilson |
| Counsel for the Respondent: | Mr Y Shariff |
| Solicitors for the Respondent: | Sparke Helmore |
THE COURT ORDERS THAT:
The applicant’s application filed on 1 May 2019 be dismissed.
The respondent file and serve written submissions on the question of costs on or before 11 October 2019.
The applicant file and serve written submissions on the question of costs on or before 17 October 2019.
THE COURT NOTES THAT:
The parties agree that the question of costs is to be determined without an oral hearing.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1079 of 2019
| PAUL KASZYCKYJ |
Applicant
And
| AUSTRALIAN TAXATION OFFICE |
Respondent
REASONS FOR JUDGMENT
The applicant in this proceeding, Mr Kaszyckyj was formerly employed in the Australian Taxation Office (“ATO”). He has had two periods of employment, and on both occasions the employment was terminated by resignation. Since his more recent resignation, Mr Kaszyckyj has sought to re-join the Australian Public Service and, in particular, the ATO, but has been unsuccessful.
Mr Kaszyckyj’s most recent departure from the public service arose out of his failure to secure a voluntary redundancy when redundancies were being offered by the ATO. Subsequent to that, and before he made the job applications to which I have referred, he also sought to have his more recent resignation reversed.
Mr Kaszyckyj has brought a proceeding in this Court alleging breaches of the Age Discrimination Act2004 consequent upon the termination of a complaint which he made to the Australian Human Rights Commission (“Commission”). The complaint to the Commission was terminated on 15 October 2018, and as part of the advice of that termination,
Mr Kaszyckyj was advised that he had 60 days within which to bring a proceeding in this Court or the Federal Court of Australia, pursuing whatever rights he might believe he had based on contravention of the Age Discrimination Act.
However, rather than bring his case within 60 days of 15 October 2018, Mr Kaszyckyj instead filed this proceeding on 1 May 2019. He therefore needs leave, pursuant to section 46PO(2) of the Australian Human Rights Commission Act 1986 to bring this proceeding out of time. The test relevant to be applied in the circumstances such as this is reasonably well-settled, most recently referred to by Markovic J in Reurich v Sureway Employment and Training Pty Ltd [2018] FCA 680. Those considerations are:
a)whether there is a satisfactory explanation for the delay;
b)whether there is any prejudice to the respondent arising out of the delay; and
c)whether the applicant has an arguable case.
However, as discussed with the parties during the course of this interlocutory hearing, given amendments in recent years to the Federal Circuit Court Act 1999 and to its rules relating to the ability to dismiss proceedings summarily on the basis that they lack reasonable prospects of success, it appears to me that the test appropriate to be applied today is whether the application would have reasonable prospects of success. After all, if it did not, then it would be liable to dismissal.
Mr Kaszyckyj relied on two affidavits which he swore, one of 27 August 2019 and another of 12 September 2019, while the ATO relied on the affidavits of Elyse Maree Galvin affirmed 6 September 2019 and Roland Marchmont Hassall affirmed 11 September 2019.
I turn first to whether Mr Kaszyckyj has provided a satisfactory explanation for his delay in commencing the proceeding. In his affidavit sworn on 27 August 2019, Mr Kaszyckyj referred to having received the notice of termination from the Commission on 15 October 2018 and to having, on 26 October 2018, sent an email to his solicitor requesting an advice on prospects. It seems that he received a reply by email on
31 October 2018 in which his solicitor invited the provision of information, so that an advice might be given. Later that day,
Mr Kaszyckyj replied, providing his solicitor with certain documents. On 31 October 2018, Mr Kaszyckyj’s solicitors wrote again and advised him that they needed some personal details in order to open a file. It is unclear what happened as a consequence of that but, on 16 November 2018, Mr Kaszyckyj wrote by email stating that he was keenly awaiting the advice he had requested and inquiring whether or not a payment into trust was necessary.
On 21 November 2018, it seems that some advice was tendered to
Mr Kaszyckyj and, on 3 December 2018, he wrote to his solicitors following a conversation by telephone a few days earlier, setting out information in relation to his claim. On 11 December 2018,
Mr Kaszyckyj’s solicitor wrote to him saying that the information he had provided strengthened his claim and on 20 December 2018
Mr Kaszyckyj sent a further email to his solicitors providing more information. It might be noted at this point that in between those two emails, the limitation period expired.
Correspondence then ensued between Mr Kaszyckyj and his solicitors on 15 January 2019, 17 January 2019, 31 January 2019, 19 February 2019, more than once on 22 February 2019, 30 March 2019 when Mr Kaszyckyj requested an update on progress, and again on 8 April 2019 when he wrote to his solicitors again inquiring about progress. As I said, this proceeding was filed shortly afterwards, on 1 May 2019.
That evidence does show real activity on the part of Mr Kaszyckyj to bring the matter to court but it is important to note that none of that correspondence evidenced any focus on the limitation period and appears to have treated it as irrelevant, which is an attitude to be condemned. One wonders how long Mr Kaszyckyj might have delayed further if he felt it had been appropriate for the preparation of his case. It does not appear that he was attempting to file within the time allowed; or was even slightly concerned to.
In relation specifically to the present application for leave, Mr Kaszyckyj has not referred in his evidence to any awareness of or respect for the time limit which was advised to him in the Commission’s letter of
15 October 2018. On balance, I am not persuaded that the delay in bringing the proceeding has been satisfactorily explained, in that although Mr Kaszyckyj has shown what he did generally, he has not shown what he did to meet the limitation period.
Turning to questions of prejudice, the ATO’s written submissions argued that prejudice caused outside the period of delay in the bringing of this proceeding ought to be taken into account in present considerations. In that regard reference was made to the period between the occurrence of the alleged acts of discrimination and the commencement of the proceeding and to asserted delays in Mr Kaszyckyj making his complaint to the Commission and in notifying the ATO of his allegations.
However, at the hearing the ATO accepted, correctly, that for present purposes, questions of prejudice are limited to such prejudice as might be caused by the delay in bringing this case. The prejudice which the ATO might suffer, were the Court to grant leave to commence out of time, can only sensibly be measured by any relevant deterioration in its position since the expiry of the limitation period.
Mr Kaszyckyj was entitled to bring the proceeding without leave within 60 days of the Commission’s decision and, if he had, the ATO would have just had to deal with difficulties with witnesses. In that connection, in its written submissions the ATO spoke of difficulties finding witnesses but, apart from noting that relevant witnesses have retired, it has said little about this issue. In particular, it has not been contended that relevant witnesses were unavailable or could not be located. I accept, as one must, that recollections will fade with time, but I think a little more than the retirement of witnesses from one’s employ is needed to make out material prejudice in the circumstances.
The ATO also submitted that a review of its records and of the job application assessments in which Mr Kaszyckyj participated could be very burdensome. I accept that. However, the ATO would have had to carry that burden even if the application had been filed in time and so it is not a matter which carries a lot of weight.
Turning to the strength of the case, as I said, although the authorities speak of the need for an arguable case, given that the proceeding is liable to be dismissed if it lacks reasonable prospects of success, as that expression has been explained in the authorities, that seems to me to be the appropriate test in this case. Mr Kaszyckyj’s claim has three elements: (1) voluntary redundancy, (2) withdrawal of resignation, (3) applications for employment. The latter two sets of allegations do not, on present indications, seem to me to have reasonable prospects of success. The evidence on which the ATO has relied and to which it has referred in its written submissions – and in this regard see paragraphs 86, 87, 88 and 95[1], indicates that Mr Kaszyckyj is unlikely to be able to mount a successful case on these issues.
[1] Those paragraphs are reproduced in the annexure to these reasons
The first issue, voluntary redundancy, is somewhat different. Although it is sparingly pleaded and lacks proper particulars, it does plead a cognisable claim and could be made out if there was necessary evidence supporting it. However, although Mr Kaszyckyj has been on notice for some time that an extension of time would be required and that this issue was listed for argument today, the pleading in question remains, as I said, spare. It is apparent from Mr Kaszyckyj’s evidence that he has worked over a number of years – and I will return to this shortly in the context of the ATO’s submission that the present application was an abuse of process – to research the matters associated with his separation from the ATO. Notwithstanding all that work, he has done little more than present a mere skeleton of an allegation of age discrimination in relation to his voluntary redundancy.
Turning to abuse of process, the relevant but brief chronology is that
Mr Kaszyckyj was denied voluntary redundancy in 2014 whereupon he resigned. In 2015 and 2016, he applied for jobs with the ATO; some of which were not offered to him, one of which was and two more in respect of which he was invited to attend interviews. In 2016 and 2017, he made freedom of information requests. Not long after those concluded – in fact on 18 December 2017 – Mr Kaszyckyj lodged his complaint with the Commission. He explained to the Commission the reason for the delay in lodging his complaint in the following terms:
I have sought to resolve this matter with the ATO through a protracted exchange of emails which commenced in April 2014 and ceased on 27 April 2017. I have included the emails in the “supporting information” section of this complaint form. I have made a number of applications under the Freedom of Information Act for the release of documents held by the ATO which may evidence my claim of discrimination. This included an application for IC review …
and I interpolate here, “IC” would be the Information Commissioner,
… of a decision of the ATO made on 26 October 2016 under the Freedom of Information Act (IC review MR16/00496). It took the Information Commissioner 12 months to complete the IC review; it was completed on 7 November 2017.
As I said, Mr Kaszyckyj filed his complaint with the Commission little more than a month later. In the circumstances, although the length of time between the relevant events and the filing of this proceeding were not insubstantial, I do not find that it amounts to an abuse of process in the sense that it is apparent that Mr Kaszyckyj was, even if in his own time and at his own pace, progressing the matter.
Putting aside for the ultimate determination of this matter the question of abuse of process and returning to the three considerations identified by Markovic J, I do not consider it appropriate, in the exercise of discretion, to extend time on this occasion. In circumstances where
Mr Kaszyckyj has failed to provide a satisfactory explanation for his delay in bringing the case, where two of the three grounds of his application lack reasonable prospects of success, and where the third and more arguable ground is, notwithstanding Mr Kaszyckyj’s efforts over many years to substantiate and make his claim, still no more than a skeleton, it seems, on balance, that the appropriate course is to not grant leave under section 46PO(2).
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 21 November 2019
Annexure A
Respondent’s outline of submissions
…
The Applicant appears to form the view that his request to withdraw his resignation was declined due to his age based on a statement from
Ms Briony Andrew on 8 September 2016 that she would not re-hire the Applicant in a leadership capacity.The decisions not to allow the Applicant to withdraw his resignation were made by Ms Jacqui Curtis, First Assistant Commissioner, on 4 June 2014, 29 July 2014 and 15 January 2015, and affirmed by Ms Margaret Jamieson, Assistant Commissioner ATO, on 2 November 2015.
The Applicant has failed to explain how a statement from Ms Briony Andrew made on 8 September 2016 – which post dates the decisions made by very senior officers of the Respondent - is evidence of, or even relevant to, the Applicant’s claim that he was not entitled to withdraw his resignation due to his age. This is no more than mere conjecture.
…
Again, the Respondent submits that the allegations are based on mere speculation and conjecture and cannot be made out on the facts because:
a)While the job applications contained an optional question as to the age of the Applicant, the question was not mandatory and the Applicant did not choose to include his age on any of his applications.
b)Of the 13 positions the Applicant applied for, he was in fact:
i)offered one of those positions but declined that offer; and
ii)invited to interview for two of those positions, however he did not accept these invitations.
c)The Applicant has failed to show, even on an arguable basis, that the reason he was not successful in obtaining re-employment with the Respondent was due to his age. ...
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