Kirunda v New South Wales Police
[2016] FCCA 1812
•2 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KIRUNDA v NEW SOUTH WALES POLICE | [2016] FCCA 1812 |
| Catchwords: PRACTICE AND PROCEDURE – Application in a Case for reinstatement – application to set aside costs order – application to extend time to object to costs assessment – application for adjournment ‑ applications refused. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), s.43 Federal Circuit Court Rules 2001 (Cth), rr.1.06, 3.05, 12.02, 13.03C, 16.01, 16.05 Racial Discrimination Act 1975 (Cth), ss.9, 10, 13, 15, 18, 18C, 27, 91 Police Act 1990 (NSW) |
| Cases cited: MZWQH v Minister for Immigration and Multicultural and Indigenous [2005] FCA 1491 Ibrahim v Australian Dental Council [2012] FMCA 612 Macedonian Teachers’ Association of Victoria Inc v Human Rights & Equal Opportunity Commission & Anor [1998] FCA 1650 |
| Applicant: | BILL WILLIAM KIRUNDA |
| Respondent: | NEW SOUTH WALES POLICE |
| File Number: | SYG 1281 of 2014 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 3 May 2016 |
| Date of Last Submission: | 3 May 2016 |
| Delivered at: | Sydney |
| Delivered on: | 2 August 2016 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Mr M Seck |
| Solicitors for the Respondent: | Minter Ellison |
ORDERS
The Application in a Case made by the applicant on 4 September 2015 is dismissed.
The Application in a Case made by the applicant on 18 November 2015 is dismissed.
The applicant’s request made on 20 July 2016 for leave to file further evidence in this matter is refused.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1281 of 2014
| BILL WILLIAM KIRUNDA |
Applicant
And
| NEW SOUTH WALES POLICE |
Respondent
REASONS FOR JUDGMENT
This is an Application in a Case made pursuant to r.16.05 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”) on 4 September 2015 seeking reinstatement of the substantive application made by Mr Bill William Kirunda (“the applicant”) on 13 May 2014 alleging unlawful discrimination pursuant to s.46PO of the Australian Human Rights Commission Act 1986 (Cth) (“AHRC Act”) against the New South Wales Police Force (“the respondent”). A further Application in a Case made on 18 November 2015 is also considered below.
The grounds of the substantive application were said to rely on the Racial Discrimination Act 1975 (Cth) (“the RDA”). In essence, the applicant claimed racial discrimination by the respondent during his employment with the respondent and as arising from a number of incidents after cessation of that employment.
Evidence Before the Court
In evidence before the Court are the following affidavits filed by the applicant:
1)His affidavit affirmed on 3 September 2015.
2)His affidavit of 13 January 2016.
3)His affidavit affirmed on 2 March 2016.
4)His affidavit affirmed on 29 April 2016.
The respondent did not object to the reading of the applicant’s evidence for current purposes, however reserved its position to object if the evidence were to be relied upon in the event of a final hearing. The respondent relied upon the following affidavits filed by it:
1)The affidavit of Kathleen Anne Plowman, solicitor, affirmed on 17 October 2014.
2)The affidavit of Kathleen Anne Plowman, solicitor, affirmed on 17 February 2015.
3)The affidavit of Thomas Michael Molan, solicitor, sworn on 17 February 2016.
Background to the Current Consideration
It is not in dispute that the applicant was employed by the respondent. On 13 August 2013 he made a complaint concerning the respondent to the Australian Human Rights Commission (“the AHRC”). The AHRC subsequently granted the applicant leave to amend his complaint on two occasions.
The complaint was terminated by the AHRC on 14 March 2014. On 13 May 2014 the applicant filed his application with this Court. Subsequently on 19 September 2014 the applicant filed a “Points of Claim” which was served on the respondent on 23 September 2014.
The applicant claimed that over the course of his employment with the respondent, a number of managers and colleagues employed by the respondent harassed and bullied him, and discriminated against him because of his race. This included conduct in managing his work and his applications for promotion for other internal positions. Further, the applicant claimed that an alleged assault in August 2012 (“the August 2012 incident”) was not properly addressed by the respondent in its professional capacity, and alleged that it had been instigated by it due to the applicant’s internal complaints.
The respondent filed an Application in a Case (“the respondent’s AIC”) on 17 October 2014. That application sought orders striking out or dismissing a substantial part of the proceedings. A directions hearing occurred on 31 October 2014 in relation to the respondent’s AIC. The applicant did not attend. Nevertheless, the AIC was set down for hearing on 18 February 2015.
It is relevant to note that in his substantive application, the applicant provided an address for service but also stated that an email address he had provided was “preferred”. That is, presumably, as a means of service of documents, and communication generally with him (see the footer at page 1 of the 13 May 2014 application).
I also note that the applicant has sought to conduct a large amount of correspondence with the Court with emails sent to the Court’s Registry and Chambers. It is not clear whether any or all of these communications were brought to the respondent’s notice. In any event, for the sake of clarity, I have not had any regard to any emails from the applicant other than those put into evidence as annexures to the various affidavits before the Court.
On 30 December 2014, by email communication, the applicant sought from the respondent consent to an adjournment of the hearing of the respondent’s AIC scheduled for hearing on 18 February 2015. He did not specify any period for the adjournment. However, he indicated that he sought time pending the resolution of a workers compensation claim that he had also initiated against the respondent in another jurisdiction.
The applicant also asserted that an adjournment would assist his “recovery”. He attached a letter provided by Ms Nita Hidalgo who described herself as a clinical psychologist. The letter was dated 23 December 2014. The terms of the letter were said to be directed to “an adjournment of the current legal matter” (see further below).
The respondent’s solicitors, also by email directed to the email address provided by the applicant, and sent on 7 January 2015, advised the applicant that the respondent did not consent to the adjournment. The evidence reveals there was no response by the applicant. Nor does the applicant now otherwise assert that he did respond to this email, or to a number of other emails sent to the applicant by the respondent’s solicitors between 21 January 2015 and 13 February 2015.
On 16 February 2015, apparently not accessed by the respondent until 17 February 2015, the applicant sent an email to the Registry of the Court, it would appear for the first time, seeking from the Court, adjournment of the hearing until the resolution of his workers compensation matter, and an application for legal aid that he had made in relation to that matter.
The applicant also claimed that he had left Australia because of anxiety, and that his “psychological” condition and injury had been exacerbated by the alleged intimidation and harassment by the respondent which he alleged continued to that time. The letter from Ms Hidalgo was attached.
The respondent’s solicitors wrote to the applicant and the Court’s Registry on 17 February 2015, by email, advising that they opposed the application for the adjournment and would press for the dismissal of his application on a number of bases, including his non-attendance, if he did not appear.
The applicant did not appear on 18 February 2015. The respondent sought dismissal for non-appearance. The Court made an order dismissing the substantive application pursuant to r.13.03C(1)(c) of the FCC Rules. The Court also made an order that the applicant pay the respondent’s costs as agreed or taxed.
On 4 September 2015 the applicant filed an Application in a Case seeking the following orders:
“1. An order under rule 16.05(2)(a) that order 1 made by Judge Nicholls on 18 February 2015 be set aside.
2. An order under rule 16.05(2)(a) that order 2 made by Judge Nicholls on 18 February 2015 be set aside.
3. An order under rule 1.06 and 3.05 that the time to lodge an application to review the registrars estimate of costs be extended to a date after the determination of this application.
4. An order that further hearing of the claim is stayed until the resolution of the Applicant’s ongoing workers compensation claim against the Respondent.
5. An order under rule 12.02 referring the Applicant to a lawyer for legal assistance in relation to his claim.”
On 18 November 2015 the applicant filed a second Application in a Case seeking the following order:
“1. An order under rules 1.06, 3.05(2) and (3) and 16.01that the time limit of 21 days to lodge a notice of objection to the Registrars notice of the estimate of costs dated 20 August 2015 be extended to a date to be fixed after the determination of the Application in a Case filed by the Applicant on 4 September 2015.”
[Errors in the original.]
The following background is relevant to understanding the issue involving these costs (see [20] – [27] of the respondent’s written submissions):
“[20] On 20 February 2015, the Respondent’s solicitors served the sealed orders on the Applicant by e-mail.
[21] On 23 March 2015, the Respondent’s solicitors sent a letter to the Applicant by e-mail offering to agree an amount for costs. No response was received.
[22] On 5 August 2015, the Respondent filed a draft Bill of Costs with the Court.
[23] On 6 August 2015, a copy of the Draft Bill of Costs was served on the Applicant by email.
[24] On 20 August 2015, the Court issued a notice of estimate to the Respondent’s solicitors and the Applicant, in which the Registrar estimated that, if the Bill of Costs were taxed, the certificate of taxation likely to issue was $50,100.00. The letter stated that the Applicant had 21 days to file a notice of objection.
[25] On 8 September 2015, the Applicant wrote to the Respondent’s solicitors by email requesting the Respondent's agreement to an extension of time to challenge the estimate of costs.
[26] On 14 September 2015, the Respondent’s solicitors wrote to the Applicant and informed him that the Respondent opposed the Applicant's request for an extension.
[27] On 18 September 2015, the Respondent’s solicitors filed a draft certificate of taxation with the Court. No certificate of taxation has been issued by the Court to date.”
The parties were given time to file further material in relation to the applicant’s two Applications in a Case. The matters were set down for hearing on 3 May 2016. The applicant appeared in person. Mr M Seck of counsel appeared for the respondent.
In essence, the applicant’s two Applications in a Case sought three matters. First, the reinstatement of the originating substantive application, dismissed for non-appearance (see chronology above). Second, the extension of time by which the applicant could make an application for review of the Registrar’s estimate of costs following the order made by the Court on 18 February 2015. Third, the setting aside of the costs order and an “adjournment” of the substantive proceedings.
One: Application to Reinstate Substantive Proceedings
I understood the applicant’s first AIC to seek to invoke the Court’s power as expressed in r.16.05(2)(a) of the FCC Rules to set aside the previous orders (that is dismissing the application, and costs).
In his submissions, the applicant made no reference to the relevant test for setting aside orders made in the applicant’s absence. However, it is clear from his submissions that the applicant understood the need to provide, at least, an explanation for his non-attendance, and the prospects of success of the grounds of his substantive application.
In its submissions, the respondent submits that the test has two limbs, both of which must be satisfied by the applicant to succeed on his first AIC for reinstatement. The first limb is the existence of a reasonable explanation for the applicant’s non-appearance. The second limb is whether the grounds of the application have any reasonable prospects of success if the matter were allowed to proceed.
The respondent referred to MZWQH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1491 at [29] per Kenny J:
“When considering the application for reinstatement, the Federal Magistrate required the applicant to demonstrate a satisfactory reason for failing to appear and that he had an arguable underlying case. This was the correct test: see eg MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1066 at [18] per North J. Moreover, his Honour correctly found that the applicant satisfied neither prong of this test.”
MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1066 at [18] per North J is as follows:
“The decision whether to reinstate the appeal depends, however, not only on the existence of a reasonable explanation for the need to adjourn the appeal, but also whether the appeal, if reinstated, has a reasonable chance of success. If not, there is no purpose in reinstatement. I will return to the question of the merits of the appeal shortly.”
There is no doubt that the Court has a discretion, to be exercised reasonably, to set aside orders made in the absence of the applicant. In the current case one party, the respondent, does not consent to the exercise of the discretion in the applicant’s favour, and opposes the making of any such order.
It is also the case that the Court’s power, and discretion, must be exercised with great caution given what is, after all, the summary nature of what occurred in the dismissal of the substantive application without a full hearing of the merits of the case.
It is necessary to achieve balance between the timely resolution of matters before the Court, having regard to the public interest in the finality of litigation, and the obligation to act judicially, in ensuring that an applicant has the opportunity to pursue a case where there is a real dispute to be tried. I note generally that the application to reinstate should be dismissed where there is no real question to be tried or the claims cannot succeed (General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, especially at [8] - [9], Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598, Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708 at [3] - [6], Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677 at [1]).
In the alternative, the application to reinstate should be allowed where “there is some matter calling for the Court’s review” (Smith v NSW Bar Association [1992] HCA 36; (1992) 176 CLR 256 at [27]) or “the interests of justice so require” (Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300; (1993) 111 ALR 385 at [1] and [18]) or that there exist material arguments that might reasonably lead to a different outcome to the one already made by the Court (Clifford v Mountford [2006] FMCAfam 450).
Having regard to all the circumstances presented in this case (Australian Fisheries Management Authority v P.W. Adams Pty Limited No.2 (1996) 66 FCR 349) it cannot be said that the applicant has provided a reasonable explanation for his non-appearance at Court on 18 February 2015.
First, the applicant does not dispute that he had reasonable notice of the Court event on the relevant day. In dismissing the substantive application due to the applicant’s non-appearance, the Court was satisfied on that day, amongst other things, that notice was given to the applicant within a reasonable period of time.
Second, the applicant’s submissions, both written and oral, appear to put forward a number of elements which he says provide an explanation for his non-appearance. It must be said that the applicant’s submissions did not focus on whether these explanations could be seen as reasonable in all the circumstances. In any event, the elements of the explanation are as follows.
One, the applicant claimed to have suffered a “psychological injury” which meant that he was unable to work since 31 January 2013. He relied on two “medical reports” to support this assertion.
The first is the report by Dr Selwyn Smith, dated 16 April 2014 (see annexure “A” to the applicant’s affidavit of 3 September 2015 at page 2). The report states that Dr Smith, a consultant psychiatrist, examined the applicant on a number of occasions, the last being on 9 April 2014 in relation to the applicant’s workers compensation claim.
Dr Smith provided a “Psychiatric Opinion” (see page 3 of that report at page 4 of the annexure):
“It was my opinion that Mr Kirunda in response to his
work-related adverse experiences had developed diagnostic criteria for a chronic Adjustment Disorder with Depressed Mood. I informed his family physician, Dr Dias, of my opinion in that regard. I recommended that the antidepressant Pristiq that he had been prescribed together with the hypnotic Temazepam be continued. I also recommended that he continue to attend with his consultant psychologist. During the time that I have monitored Mr Kirunda he has not improved substantially because his work-related adverse events have not been resolved. He has continued to display a persistent degree of helplessness and powerlessness in regard to his work situation. He has lost self-esteem and self-confidence. He has not received income and has been subsistent on Centrelink benefits.”
It is to be remembered that the scheduled hearing date was 18 February 2015. The applicant sought “consent” from the respondent on 30 December 2014. Given the period between the date of the report and those dates, the report cannot be said to provide any expert opinion as to the applicant’s state of mind as at December 2014, let alone 18 February 2015, the date of the hearing of the respondent’s AIC and at the time the applicant “formally” sought an adjournment.
Further, the report says nothing about the applicant’s capacity to attend at the hearing, participate in the hearing, or his capacity to have sought an adjournment at an earlier time. That is, from 31 October 2014 when he was put on notice of the scheduled hearing date (see Ms Plowman’s affidavit of 17 February 2015). Plainly, the report was directed to the applicant’s workers compensation application and, in part, sought to address any link between the applicant’s psychological injury and his employment.
Even in that context, while there were a number of conditions (“caveat” – see page 4 of the report at page 5 of the annexure), Dr Smith found that the applicant would be able to “resume his
pre-accident occupation”.
There is nothing in this to indicate that by December 2014 or February 2015 the applicant’s “condition” continued in such a way as to provide any basis for explaining his non-attendance at Court. Dr Smith’s report does not say that the applicant’s condition is permanent (see page 6 of the annexure). If anything, I accept the respondent’s submissions now that the prognosis on any fair or reasonable reading was positive to the applicant’s health prognosis.
There is no other evidence from the applicant to say that his condition, as identified and explained by Dr Smith, continued as at December 2014 or February 2015. In this context, it is also of note that the applicant’s employment with the respondent had ceased.
The second report before the Court is that of Ms Hidalgo, a clinical psychologist, dated 17 April 2014 (see at page 8 of the annexure the applicant’s affidavit of to the 3 September 2015). Ms Hidalgo reported on the applicant’s psychological condition as at April 2014, not December 2014 or February 2015. This is to be compared with Dr Smith’s report which was said to be in relation to the applicant’s psychiatric condition. However, Ms Hidalgo’s report was also focussed on the applicant’s workers compensation matter, and not on his capacity to attend Court (“psychological injury… is work related”).
In relation to his non-attendance, the report, noting it was given in April 2014, reveals his condition initially to have been diagnosed as “Major Depressive Disorder” as at April 2014. The report also stated (see page 13 of the annexure):
“Mr Kirunda did not display any thought or perceptual disorder and sensorium and cognition were intact. His short-term and long term memory is intact but he reported difficulty with his attention span and forgetfulness. Mr Kirunda is of above average intelligence completing High School education and further tertiary studies, namely Law.”
There is no evidence to show his “reported” difficulty with his attention span, given that it arose out of specific and historic work related circumstances, continued as at December 2014 or February 2015.
As set out above, the applicant also provided a letter from Ms Hidalgo to the respondent’s solicitors dated 23 December 2014, which stated (page 15 of the annexure to the applicant’s affidavit of 3 September 2015):
“Mr Bill Kirunda is currently being treated for symptoms of Post Traumatic Stress Disorder and Major Depressive Disorder. Due to the nature of his continuing stressors including his legal issues, his symptoms have been exacerbated that negatively impact on his day to day functioning. I would appreciate your support by allowing an adjournment of the current legal matter as his symptoms would negatively interfere with his ability to function within a court setting.”
It is to be remembered that the applicant’s email of 30 December 2014, to the respondent’s solicitors, inquiring about an adjournment made reference to his workers compensation claim (see annexure KAP-10 to Ms Plowman’s affidavit of 17 February 2015).
The attached letter from Ms Hidalgo makes no express reference to the proceedings before this Court. The reference to “current legal matter” as used by a lay person (in the legal context) may equally be a reference to the applicant’s workers compensation claim. The ambiguity in the letter is exacerbated with the absence of any clear addressee in the letter. “Dear Sir/Madam”, even for a lay person, does not indicate that this letter was directed to a Court, although it may have been intended for the respondent’s solicitors.
An inference that it was not intended to be directed to the Court or to be put before the Court may also reasonably arise from the final sentence inviting the intended recipient to “contact” Ms Hidalgo if “further clarification” was required. In any event, as the letter makes clear, Ms Hidalgo asks for “your support”. This is not the language of a professional clinical psychologist making a report to be submitted to a Court.
Further, the plain language of the letter talks of him having symptoms that “negatively impact” him. This does not state that he could not appear, and importantly does not say anything about his capacity to appear, on 18 February 2015, even if only to satisfactorily explain any request for an adjournment, which I note was not made to the Court’s Registry in any event until 16 February 2015.
It is also of relevance to note that, unlike her earlier document, this is not a report on the applicant’s psychological condition. At best, it is a short letter of support for an adjournment of some unidentified “legal matter”. While the earlier report was based on stated observations and interactions with the applicant, this letter is silent as to the methodology used to arrive at the assertions in the letter.
A second element put forward by the applicant to explain his
non-attendance on 18 February 2015 is that he was overseas at the time. This matter also provides context in concluding that little weight, in terms of its assistance to the current issue, can be placed on Ms Hidalgo’s letter of 23 December 2014.
The applicant’s affidavit of 29 April 2016 is part of the material on which he relied in the current proceedings. Before the Court, the applicant did not dispute that he had been overseas on 18 February 2015.
In his affidavit of 29 April 2016, the applicant states that he departed for Uganda on 30 November 2014 (at [25]). He also states that his “original return date to Hong Kong” was scheduled for 11 January 2015, which was subsequently changed to “early February 2015 and then later May 2015” (at [26]).
Plainly, in these circumstances, he was not in Australia as at 23 December 2014, the date of Ms Hidalgo’s letter. Ms Hidalgo makes no reference in her letter to the applicant’s absence from Australia. There is nothing to say that she knew as at the time of her letter that he was not in Australia or that if she did, she knew when he would return. Further, the statement that the applicant was “currently being treated” may be accepted as some general statement concerning the applicant’s psychological situation, but there is nothing in her letter to indicate she was providing treatment to him as at the date of her letter or for the month preceding it.
There is no explanation by the applicant as to how he received this letter at a time when he was in Uganda, and Ms Hidalgo, in the absence of anything to the contrary, was in Australia. However, given that a copy of the letter was sent by email to the respondent’s solicitors on 30 December 2014, it is reasonable to assume that the applicant procured the letter from Ms Hidalgo by email correspondence, his “preferred” method of communication.
In all, and on balance, Ms Hidalgo’s letter of 23 December 2014 cannot be said to be a contemporaneous report as to the applicant’s psychological condition as at the date of the letter. It is what it states to be. That is, a request from Ms Hidalgo for support for “allowing an adjournment”. In the circumstances, her request for support, at this time, does not assist in providing a reasonable explanation for the applicant’s non-attendance at Court some two months later, and while the applicant continued to be overseas.
The applicant seeks to explain the reason for his absence from Australia as being that he wanted “to escape this stalking and intimidation”, that he claimed was “instigated by the respondent and continued by the respondent in retaliation for my ongoing claims against them”. The applicant claimed that this included, “being unlawfully followed by a marked police car” occurring on 11 January 2014 ([3] ‑ [4] of the applicant’s affidavit of 3 September 2015). (This “police car” was not included in the list of various photographs of cars provided by the applicant. The applicant’s submission was that the cars in the photographs all contained “unknown persons” who harassed him – see [95] – [100] below.)
The applicant’s affidavit of 29 April 2016 annexes copies of various airline bookings (at “annexure N”) which the applicant states “prove” that he “intended to come back to Australia” (at [26]). In context, this assertion is that he intended to return to Australia in early January 2015, he then changed this to “early February 2015 and then later May 2015”. That is, as at early January and February 2015 (prior to the hearing date) he intended to return, and, in context, would attend the hearing, but was unable to do so because of being “traumatised by the prospect of facing more intimidation” (at [26] of the applicant’s affidavit of 29 April 2016).
While the applicant’s emphasis in providing these airline travel documents was focussed on his return, the documents also show that as at 16 December 2014, he was not in Uganda, but Hong Kong. The documents at page 37 of the annexures reveal a booking for the applicant to depart Hong Kong for Dubai and then Entebbe, in Uganda, on 14 and 16 December 2014 respectively.
In its submissions, the respondent relied on the documents to argue that the applicant was still in Australia on 10 December 2014 when he booked his flight and left Australia “shortly before” 16 December 2014.
In my view, in the absence of anything to the contrary, the applicant’s documents must be read in light of his own statements in his affidavit (see [26] of the applicant’s affidavit of 29 April 2016). That is, he left Australia for Uganda, via Hong Kong, on 30 November 2014. He then left Hong Kong for Uganda, via Dubai, on 16 December 2014. His presence in Hong Kong may be explained by his reference to his sister living there (see the applicant’s email of 16 February 2015 to the Court Registry’s at page 3 of annexure TMM-1to Mr Molan’s affidavit).
What remains, therefore, is that he left Australia on 30 November 2014 at a time when he knew of the Court event on 18 February 2015. He did not approach the respondent’s solicitors to raise the issue of the adjournment until 30 December 2014, and had not obtained any letter in support until 23 December 2014. His approach for an adjournment to the Registry of the Court was on 16 February 2015.
In this context, the applicant says that in any event, he intended to return in early January, and then early February 2015. Even if this were to be accepted, it does not satisfactorily explain why the applicant made no attempt to contact the Court’s Registry before 16 February 2015 to seek an adjournment. Nor does it explain why he did not seek to participate by telephone as he had done on earlier occasions when his matter was before the Court for directions (see further below). He could then have sought an adjournment in circumstances where the dismissal for non-appearance (for which he was on notice) could not have occurred (see also below in relation to the applicant’s legal capacity).
Before the Court the respondent referred to various email, and other, correspondence between the applicant and the respondent’s solicitors, as set out in copies annexed to the affidavits of Ms Plowman of 17 February 2015 and Mr Molan of 17 February 2016.
Both these affidavits set out in detail the active email exchanges between the applicant, the respondent and the respondent’s solicitors (see Ms Plowman’s affidavit of 17 February 2015, particularly at
[3] – [10] and annexures there referred to, and Mr Molan’s affidavit at [3] – [5] and [9] – [16]). This material reveals that between 20 June 2014 (prior to the date of the scheduled first Court date in this matter) to 6 August 2014 (when the matter came before the Court on the first occasion), the applicant sought and was granted, the consent of the respondent to various adjournments in the conduct of the current matter, and the use of telephone facilities to enable the applicant to appear at the Court event.
As stated above, the applicant’s approach to the respondent’s solicitors to seek adjournment of the hearing of the respondent’s AIC set for 18 February 2015 was set out in his email of 30 December 2014 (see Ms Plowman’s affidavit of 17 February 2015 at KAP-10 at page 38). That email is in the following terms:
“I am writing to seek your client’s consent that this matter is adjourned pending the resolution of my workers compensation claim. I have been advised that this will assist my recovery. It may also negate the need to continue with the discrimination proceedings if the workers compensation claim is satisfactorily resolved. I hereby attach a brief report from my treating psychologist in respect of this matter.”
Even on a fair reading for the applicant, it cannot be said that he sought an adjournment because of any incapacity or inability to attend. The consent to the adjournment was sought, in essence, pending the resolution of his workers compensation claim which he asserted, if satisfactorily resolved, may mean the discontinuance of the proceedings in this Court.
As stated above, the applicant said that he had been advised this would assist with his “recovery”. That assertion is consistent with Ms Hidalgo’s letter which was attached. Both the applicant’s email and Ms Hidalgo’s letter at their highest, therefore, while making reference to the applicant’s psychological condition, put forward as the primary purpose of seeking the adjournment as being to enable other proceedings initiated by the applicant to reach a conclusion which may render the “current” proceedings, from the applicant’s perspective, unnecessary. While the matter of the applicant’s “recovery” says nothing about any incapacity or inability to participate in the hearing, nor does it seek an appearance by telephone.
The documents annexed to Ms Plowman’s affidavit of 17 February 2015 also reveal various correspondence from the respondent’s solicitors, by email, to the applicant from 17 January 2015 to 15 February 2015 (see annexures KAP-11 to KAP-13 to that affidavit). There is nothing to suggest that the applicant responded, let alone to advise he was not in Australia, or there was any difficulty in participating at the hearing on 18 February 2015.
It was not until the morning of 16 February 2015 that the applicant directed an adjournment request to the Registrar of the Court (see annexure TMM-1 to Mr Molan’s affidavit). It is relevant to note that the request was not made by way of an Application in a Case, supported by any affidavit, and was instead directed as correspondence to a Registrar.
The email is of some considerable length. Much of it expresses the applicant’s grievance at Australian Immigration Officials at the time of his departure from Australia. The relevance of this to the current proceedings was never satisfactorily, or more accurately, rationally, explained by the applicant. The applicant states that the “interview” with these officials was for the purpose of annoying and intimidating him. On the applicant’s own account, he apparently came to the notice of these officials because “I did not have return plane ticket to Australia”.
His concerns were (see annexure TMM-1 to Mr Molan’s affidavit):
“Furthermore, I faced a gruelling interview from Australian Immigration Officials at Melbourne Airport when departing Australia based on what appeared to be illogical, questionable grounds. During this interview, my carry-on luggage (laptop bag and small suitcase) contents, were fully laid out on the floor/table and I was asked specific questions about why I had screen-shots of calls from a Superintendent Paul Glinn of NSWPF and about file notes in a notebook noting cars and number plates of cars following me on certain dates. The stated basis for the intrusive, aggressive interview was the fact that I did not have a return ticket to Australia and how come I was going to visit my sister in Hong Kong. I was asked several questions which I perceived to be for purposes of annoying and intimidating me rather than any genuine attempt to establish the bonafides of my trip, for example: Why did your sister choose to live in Hong Kong and not Australia like you? I could not see how I could be genuinely expected to answer this question on behalf of my sister as part of a genuine inquiry into the bonafides of my trip which was supposed to be a security risk to Australia even though I was leaving, rather than arriving. I am a christian who has visited Hong Kong before, enroute to Uganda (which they simplly had to check and verify without grilling me) and could not be an Islamist threat. One immigration officer left the room with my Iphone despite my objections because I feared that she would plant something in it and I yelled for a witness and opted for the Australian Federal Police to be called so that the Immigration Officers would not have control of the situation anymore. Closing of the plane doors was delayed because of all this and I was escorted to the plane by an AFP officer.”
[Errors in the original.]
Of particular note, given that it is relevant to the strength of the applicant’s substantive case (see further below), is the following (annexure TMM-1 to Mr Molan’s affidavit ):
“I believe this intrusive and aggressive interview was instigated by NSWPF using their networks as part of the ongoing campaign of pyschological warfare against me. I am now even more fearful of being in NSW for any length of time especially when still living in an isolated situation where I can be continously targeted with psychological warfare without witnesses. I am fearful of returning to Australia and of living in NSW in the curent situation without any family/emotional support and without any legal assistance either.
I have applied to the Commonweatlh Attorney General for legal financial assistance under s.46PU of the Australian Human Rights Commission Act 1986 which I hope will enable me to retain lawyers to assist with pursuing my claim. Regardless of whether this application is successful or not, when I return to Australia, I believe I can only pursue my claim while living interstate as I was doing when I lodged it, right up to the time of the court-ordered mediation in October 2014 because this is the only way I can ameliorate the ongoing intimidation. I have taken photos of several cars being used for this purpose but the NSW Ombudsman declined to investigate the few that I presented to their office earlier so I am at a loss about who to approach for assistance with these issues.”
[Errors in the original.]
Against this background, the reasons for the adjournment request were expressed as follows (annexure TMM-1 to the affidavit of Mr Molan):
“I am writing to request varying of the orders of 31 October 2014 and an adjournment of the proceedings on 18 February 2015 due to deterioration of my ill-health making me unable to comply with previous orders of the Court, unable to return to Australia and unable to attend Court.
…
In light of the above I request the following:
1.adjournment of this matter including orders to submit written submissions until the resolution of my workers compensation claim which is due to be filed this week or alternatively if this is not possible,
2. adjournment until a decision has been made by the Commonwealth Attorney General in respect of my application for financial assistance.”
[Errors in the original.]
These reasons make no reference to his “medical condition” as being the reason for requesting the adjournment, or his inability to attend. The opening sentence does refer to the deterioration of his health and his inability to return to Australia. As set out above, the applicant’s assertion in this regard is not supported by any appropriate and current (as at 16 February 2015) medical report. Nor is there anything from the applicant to satisfactorily explain why he did not communicate to the respondent’s solicitors let alone the Court, his being overseas, at an earlier time.
What is also of note, given the claimed basis of the applicant’s “belief” that he was subjected to intimidation and harassment over a long period of time by the respondent (see further below), is the following from that correspondence (annexure TMM -1 to Mr Molan’s affidavit):
“I left NSW because of anxiety and exacerbation of my psychological injury caused by continuing intimidation and harrasment from individuals I can only assume are associated with NSWPF who were taking advantage of my single status and relative isolation in my family situation. I am now overseas in Uganda where attempts to intimidate and harass have continued by these same individuals…”
[Errors in the original.]
The basis of the applicant’s complaint to the AHRC, and subsequently to the Court, was that the respondent breached the RDA by harassing, intimidating and victimising the applicant. Further, and as set out below, the applicant claims that that harassment continued after February 2015 and continues until the present. In context of his request of 16 February 2015 for an adjournment, it is clear that what the applicant alleges as the pattern of conduct of the respondent, or individuals on its behalf, is, to say the least, implausible (see further below).
In relation to the time he was overseas, the proposition that the NSW Police was so incensed or aggrieved by the applicant lodging a complaint against it in 2012 that it would send, or cause, other individuals to harass and intimidate the applicant in Uganda, stretches the bounds of credibility. It may be that, as the applicant asserts, he believed that as at February 2016 individuals were harassing him in Uganda, however, in the circumstances presented, it is implausible that this was done at the instigation of the NSW Police.
The respondent’s solicitors replied to the applicant’s email, by email, on 17 February 2015, that is, the next day (annexure TMM-2 to the Mr Molan’s affidavit). The applicant was put on notice that the request for the adjournment was opposed and that the respondent would seek summary dismissal if he did not appear at the hearing. The applicant did not appear. There was no further correspondence from the applicant in relation to the scheduled hearing of 18 February 2015 other than a letter from the applicant, sent attached to an email to the Registry at 6.35pm on the night before the hearing (17 February 2015) (see annexure “C” to the applicant’s affidavit of 3 September 2015).
The letter of 17 February 2015 was, in context, sent in support of the request to the Registry of 16 February 2015. This letter was not brought to the Court’s attention on 18 February 2015. In any event, while it is a more coherent and structured communication it does not add anything of substance to the email of 16 February 2015. I have, however, had regard to the content of this letter for the current purposes. The focus of the letter of 17 February 2015 is to explain his lack of action in prosecuting his claim before the Court.
I should note, that at the end of the letter of 17 February 2015 addressed to the Registrar, and as attached to his email, the applicant provides a mobile number that he appears to have used in Uganda, “I can be contacted on [a mobile phone number with a +256 prefix] or by email for clarification of any of the above matters”. I do not understand this to have been any application to appear by telephone on 18 February 2015. The applicant was plainly engaged in correspondence with the Court’s Registry and invited the Registrar to contact him by phone or email if the Registrar wanted clarification of the matters in his letter.
At the time of making the request for the adjournment to the Registrar (16 February 2015), the applicant was in Uganda. As stated above, documents attached to his affidavit of 29 April 2016 concerning the applicant’s travel arrangements in December 2014 to February 2015, reveal that the applicant did change his travel dates as generally claimed (see annexure “N” at pages 36 to 42).
These documents reveal that on 29 January 2015 the relevant airline confirmed the applicant’s change in travel dates to May 2015 (see pages 39 to 41). That is, that as at least 29 January 2015, about three weeks before the scheduled hearing date, the applicant knew he would not be returning to Australia in time for the hearing on 18 February 2015. Yet the applicant made no attempt to notify the respondent or to approach the Registrar of the Court, until 16 February 2015. That delay is not satisfactorily explained.
In the circumstances, I agree with the respondent’s submissions that if the cause of the change in travel was his ill health, or intimidation, as at 16 February 2015, the decision to alter the travel date would more likely have occurred closer to that date.
This must also be seen in light of the opportunity to have possibly secured a different outcome (to that which occurred on 18 February 2015) if the applicant had made some relevant approach at an earlier time, even if it was to appear at the hearing of the respondent’s AIC by telephone, and seek to explain his reasons for any adjournment. In all, I find that this second element does not provide a satisfactory explanation for the non-attendance.
A third element advanced by the applicant for his failure to attend the Court event on 18 February 2015 is that he needed to leave Australia in late 2014 because of “ongoing intimidation by unknown persons” ([3] of the applicant’s written submissions of 20 April 2016). Further, as stated above, he “was too scared to return to Australia because of the prospect of the trauma of further stalking and intimidation” ([7] of the applicant’s affidavit of 3 September 2015). As set out above, the applicant’s claim that the respondent sent, or caused, persons to intimidate and harass him in Uganda cannot be accepted.
The applicant’s explanation now before the Court, contrary to what he said in his email of 16 February 2015, in support of the adjournment request, is that he could not return because of the ongoing harassment and intimidation in Australia. This assertion must be seen in the background of the applicant’s complaint to the AHRC made on 13 August 2013, which alleged discriminatory conduct by the respondent during his employment with the respondent during the period “From 2006 to 2013” (see “TAB A” to the substantive application to the Court, at pages 2 to 3). The merits of the applicant’s substantive application before the Court are addressed below.
As stated above, the applicant’s affidavit of 3 September 2015 asserts that he has not been able to work since 31 January 2013 (at [2]). The applicant alleged certain conduct (at [3] of the same affidavit):
“I have been stalked and intimidated by persons unknown since around October 2013. I have no reason to believe it is being instigated or perpetrated by anyone other than the Respondent in retaliation for my ongoing claims against them which include being unlawfully followed by a marked police car on 11 January 2014.”
The applicant’s affidavits, and the annexures to them, set out what he says is the history, or chronology, of incidents or events which reveal intimidation and harassment of him, which he believes to be at the instigation of, or the conduct of, the respondent following his return to Australia.
At annexure “D” to his affidavit of 3 September 2015 (page 28) the applicant provides a copy of a letter dated 27 July 2015 and addressed to the Commander of the respondent’s Parramatta Local Area Command. The letter is headed “Complaint of stalking and intimidation”.
The letter provides context to the applicant’s concerns. The applicant reported to police an assault which he said occurred on 27 August 2012 (the August 2012 incident) (see page 29 and annexure “A” to the letter at page 60 of the affidavit, the police record is at page 61). The applicant is aggrieved because he says that the police did not pursue this complaint.
Although the exact circumstances were not made clear, it appears the applicant’s complaint, in contradiction to the claim they took no action, was that the police mishandled his complaints. One example was that the report from Constable Thomas, in relation to the reporting of the August 2012 incident, reveals that the Constable had made a statement that was “patently untrue” when he wrote that the complaint had been “disseminated” to another police station (see applicant’s affidavit of 3 September 2015 at pages 40 to 43, particularly at [19]). It may be that the applicant’s complaint should be understood as being the police did not properly, or effectively, deal with his approaches to them.
In any event, the letter to the police makes general reference, and in some specific instances particular references, to the applicant being harassed. The following provides some illustration of the applicant’s concern (see annexure “D” to the applicant’s affidavit of 3 September 2015):
“Please see attached maps (Attachment 8) depicting what I describe below with Markings 1 to 12.
I was taking a morning walk near my home at the above address in Merrylands. At the corner of Newman and Oxford Street the white Honda of registration CWN 39M shown in the photograph 1 have submitted stopped in front of me as I was crossing the road (Point 1). The occupant was wearing a hoodie hiding his face while typing on their phone with the car stationary although there was no oncoming traffic. I had to walk round the car to cross Oxford Street. As I continued along Newman Street towards Burford street, he drove past me heading In the same direction(Point 2). When I was close to the corner of Memorial Avenue, he drove past me again heading towards Addlestone Road(Point 3). I walked along Memorial Avenue to St Ann street and then along Addlestone Road back to Newman Street. When I got to corner of Newman Street, the white Honda was parked as shown in the photograph (Point 4) with the person in the hoodie walking along the footpath facing me (Point 5). I believe the car was illegally parked in order to be visible to me from where I was walking. I turned towards him and he immediately turned round and started walking fast to cross Burford Street, heading towards cambridge Street. I took a photo of the car as shown and the car registration SD 542 that was driving past at Point 6 and then jogged to catch up with him and take his photo at Point 7 as shown in the submitted photos. I believe this individual is associated with Merrylands Police Station In some way and is part of the stalking and intimidation campaign that has been ongoing for a long time. I request an investigation into:
1. His identity
2. The ownership of the white Honda of registration CWN 39M
3. Whether he resides in the area and if not what he was doing in the area at the time
4. Any association with Sergeant Reynolds and/or Merrylands Police Station and/or New South Wales Police Force.
5. The ownership of the car registration SD 542 in the photo submitted which drove past as I took a photo of the white Honda, the identity of the driver and his reasons for being at that location at the time. I believe that his car is part of the stalking campaign, similarly to the incident mentioned below (same colour scheme of number plates- Big white characters on black background).”
[Errors in the original.]
While the applicant relies on these incidents to assert that he has been harassed and intimidated, the substantial part of the material on which he relies is a large number of photographs of cars and car registration numbers which he says have been parked in front of his house, or have followed him on various occasions including to the shops. The assertion is that the cars were used by unknown persons to conduct surveillance on him, and that it is his belief that this could only have been done at the instigation of the respondent. Before the Court, the applicant described all these matters as part of a “conspiracy” by the respondent directed against him.
The photographs are not formally in evidence before the Court [the applicant has sought to tender a “USB stick” on which he says the photographs are electronically stored]. However, for current purposes it may be accepted that the list provided by the applicant at annexure “E” to his affidavit of 3 September 2015, is a list of photographs on which the applicant relies in support of his substantive application to the Court and relevant to his application for reinstatement. The applicant asserts in this same affidavit (at [9]) that the photographs and “videos” of the cars depict “stalking incidents”.
The applicant’s “list” contains 54 separate items (51 photographs and 3 videos). The dates of each photo range from 24 October 2014 to 11 August 2015. The videos from 5 December 2013 to 17 June 2015. It is to be noted that these dates cover periods both before and after the hearing date of 18 February 2015, and the period during which the applicant was overseas.
The applicant’s various descriptions of what are depicted in the photographs and videos are essentially of cars parked outside various locations, including for example a restaurant at which the applicant had attended in Lidcombe (item 1), outside his solicitor’s office (item 5), outside a “Subway shop” in Merrylands (item 8), and cars parked across from his house (items 22 – 24, 28 – 31 and 51).
Some of the items contain descriptions by the applicant about his interactions with the occupants of those cars. The following provide illustrative, and for the current consideration, illuminating examples:
4. IMG 41
26/10/2014
As I was arriving in Sutherland, car drove up behind me and parked to the side as shown. Female driver stayed in the car. After a couple of minutes I walked up to her and asked her why she was following me. She said she works at that location. I do not think this was true.
11. IMG 87
17/11/2014
This car parked as I was arriving home in Mount Druitt where I was staying temporarily with a friend, I drove towards it and found the driver gone by the time I got to it
25. IMG 2288
8/04/2014
Car driving infront of me on Merrylands Road on my way to a psychologist's appointment
51. IMG 1534 and 1635
25/07/2015 and 12/08/2015
Car parked in the visitor's parking in my apartment complex across from my Kitchen window as shown.
This has been moved as I am standing in the kitchen in a suspicious way over time and yet I believe the driver does not reside in the complex.
One item speaks for itself as to the difficulty with the applicant’s assertions:
21. IMG 2301
18/07/2014
Photo of parking ticket taken just after I removed it from under my wiper and made a file note about the incident
There was no suggestion by the applicant that the photographs depicted the same car in any number of photographs. That is, each car on each instance was different. At its highest, the applicant relies on a series of photographs of cars parked, or travelling, near to the applicant, at various locations. He says that this provides the basis for his “belief” that he was the subject of a campaign, or “conspiracy”, of intimidation and harassment by the respondent against him.
While it is not unknown for police forces around the world to conduct covert, or even overt, surveillance, the difficulty for the applicant now is that, in the absence of anything else, his case, at its highest, is that he has taken note of, and photographed, random cars at random locations, driven by a number of “unknown person[s]” and with different numberplates, which are unconnected in purpose, other than in the applicant’s “belief”.
I agree with the respondent’s solicitors that this “belief” can only be described as speculation. That the respondent would engage in coordinating this campaign of stalking and intimidation of the applicant, over a long period of time, even in circumstances where the applicant made a complaint about the respondent and was in dispute with the respondent over matters arising from his employment, is, it must be said, in the circumstances pressed, fanciful and not rational.
It is to be remembered that the applicant has advanced this matter of the photographed vehicles which in his belief show he was harassed and intimidated by the respondent, not only in support of his substantive application, but also in support of his explanation as to why he left Australia on 30 November 2014, why he did not appear at the Court event on 18 February 2015, and why he did not file his Application in a Case to reinstate his substantive application until 4 September 2015, sometime after he had arrived back in Australia in the latter part of May 2015.
The “incidents” presented by the applicant, and even accepting that his descriptions of the “incidents” accurately reflect what is depicted in the photographs and videos, do not provide a rational or reasonable explanation as to why the applicant left Australia in November 2014, did not attend the hearing on 18 February 2015, and delayed making his application in a case to reinstate his substantive application until September 2015.
Importantly, and further, the medical reports presented by the applicant do not assist him in this regard. The report from Dr Smith is dated 16 April 2014. That is, before the date of the earliest photographs, but after the date of one of the videos. In any event, as the report makes clear, it was focussed on the applicant’s workers compensation claim and events in the workplace, and the applicant’s resultant psychiatric condition.
The report from Ms Hidalgo is dated 17 April 2014, that is the day after Dr Smith’s report. It also was focussed on, and responsive to, a request from the applicant’s then solicitors, in relation to his workers compensation claim. The report from Ms Hidalgo refers to the August 2012 incident which the applicant described as a “hit” on him to discourage him from pursuing complaints against the respondent at that time. The report also indicates that the applicant’s “perception of ongoing bullying and harassment has continued to date as reported by specific incidences retold during the treatment sessions” (page 9 of annexure “A” to the applicant’s affidavit of 3 September 2015).
However, the report goes no higher than reporting on the applicant’s “perception” (“belief”) concerning these “incidents”. Properly, the report focusses on the applicant’s condition as presented, and in the workers compensation context. It does not provide a satisfactory link of the claimed “incidents” to the applicant’s capacity to participate at the hearing before the Court or to prosecute any action to reinstate his case. Nor does the letter of 23 December 2014 from Ms Hidalgo provide any basis to say the claimed “incidents” contributed to the applicant’s capacity in this regard.
A further reason put forward by the applicant in relation to his
non-appearance on 18 February 2015 was that ([5] of the applicant’s written submissions of 20 April 2016):
“I submit that there would be no prejudice to the Respondent if this request was granted as they were clearly aware of my reasons for not being able to attend including prior notification that I had suffered a psychological injury and was proceeding with my workers compensation claim.”
[Emphasis added.]
This is consistent with the applicant’s letter to the Court Registry of 16 February 2015, where, as stated above, he sought an adjournment pending the resolution of his workers compensation matter and legal aid application.
From the applicant’s submissions and the relevant evidence above, it can be understood that although he commenced his proceedings before this Court on 13 May 2014, at some point he elected to give priority to pursuing the workers compensation matter which he believed may have led to it being unnecessary to continue the proceedings before this Court.
In this context, the applicant submitted that his medical condition and ongoing harassment had left him so exhausted that he could not focus on attending to this matter and contributed to the delay in seeking to reinstate his substantive application.
Given what is set out above, the fact that the applicant had other proceedings on foot coincidental with the date of hearing of this matter, and in the period after the dismissal of his application, is not a reasonable or satisfactory explanation for the non-attendance at the hearing of the respondent’s AIC or the delay in seeking an adjournment of it, or for that matter, the delay in obtaining reinstatement of his substantive application.
During submissions before the Court, the applicant raised the matter of his unrepresented status, and the impact this had on the conduct of his case before this Court and in other proceedings, and on complaints in which he had been, and apparently continues to be, engaged. In short, the applicant claimed he had minimal legal capacity and asked the Court to take this into account in the current consideration of his circumstances.
In his written submissions the applicant states “I am a self-represented litigant with minimal knowledge of Court procedure”. This was put specifically in explanation of his use of “email” correspondence with the Registrar, rather than seeking to file an affidavit supporting an application for an adjournment in the usual way.
In any event, that statement was also used by the applicant before the Court to explain other perceived difficulties in presenting his case. For example, in being able to make coherent submissions relevant to the issues for consideration by the Court.
This assertion must be seen in light of other material before the Court. Dr Smith reports that (annexure “A” to the applicant’s affidavit of 3 September 2015):
“Mr Kirunda came to Australia as a student in 2001. He has partly completed a Master of Business Administration from the University of Technology in Sydney. He also has a graduate diploma in Australian Law from UTS Sydney as well as a graduate diploma in legal practice, also from UTS Sydney.
In 2010 Mr Kirunda obtained a Masters of Laws from the University of Sydney.
Mr Kirunda has had wide experience as a solicitor. He has also conducted legal research and assisted individuals in victims compensation and Administrative Appeals Tribunal matters. He has worked as a legal office for the Office of the General Counsel of NSW Police Force and undertaken work with the criminal records section of the NSW Police Force.”
Further, the applicant’s Points of Claim make various references to his having worked as an acting legal officer for the respondent (see for example at page 2). Various documents attached to his complaint to the AHRC make references to the applicant having completed legal qualifications in NSW, including practical legal training (see for example at page 7 of 7 in the accompanying statement to his complaint dated 13 August 2012). One of the applicant’s complaints to the AHRC was that he was treated less favourably than other legal graduates in promotion opportunities, and even further, that he had performed tasks of preparing “legal advice” (see item 4 of the applicant’s “summary” to the AHRC dated 28 February 2013).
In summary, therefore, the applicant’s explanation for his
non-appearance at Court on 18 February 2015 was that he suffered from a psychological condition, had left Australia because of ongoing intimidation by the respondent, and did not return at that time because he feared to do so. Further, that his lack of knowledge about legal procedures meant he was unaware of how to go about seeking an adjournment in an appropriate and timely manner. For the reasons set out above none of these elements, on the material before the Court, provide a reasonable or satisfactory explanation for the applicant’s
non-appearance.
This is a strong element in favour of making the order sought by the respondent. However, there is a further element that supports the making of this order. That is, that the application before the Court cannot be said to have reasonable prospects of success.
It is of relevance to note the context within which the consideration of the merits of the applicant’s substantive case is to be relevantly undertaken. In determining the prospects of success of the substantive application, regard must be had to what is in the interests of justice. However, the context for that consideration is that the current application calling for this consideration is not an application for summary dismissal by the respondent, but the applicant’s application for the reinstatement of his case after his failure to appear at a Court event.
While the conceptual difference in the relevant principles may be small as between these two, there are important procedural fairness elements that must come into the calculation, and other matters, such as the applicant’s timely prosecution of, and participation in, the proceedings.
The applicant commenced these proceedings on 13 May 2014. He filed detailed points of claim on 19 September 2014. The respondent filed an application for interlocutory relief, including “strike out”, or in the alternative, summary judgment on 17 October 2014. Ultimately, it was that application which was to be heard on 18 February 2015. Plainly, as is set out above, that hearing did not proceed in circumstances where the applicant did not appear.
At that time, had the applicant appeared, it would not have been necessary for him to make out his substantive case to successfully withstand the respondent’s AIC. To succeed in its application, the respondent would have been required to show that the elements of the substantive application in dispute in its AIC should be struck because they lacked any prospect of success for the relief which the applicant sought. The applicant is, similarly, in the current consideration, not required to make out his substantive case. Such a requirement, it is trite to say, is relevant to final hearing of the substantive application.
An issue relevant now is whether the applicant has sought to take advantage of the passage of some six months between the dismissal of his application for non-appearance and his application to reinstate that application, to provide further material to support the strength of his case.
In this context, the applicant has presented further material, in light of which the assessment of the issue of the prospects of success of the substantive application may proceed, which was not before the Court as at 18 February 2015 (see the applicant’s affidavits of 3 September 2015, 13 January 2016, 2 March 2016 and 29 April 2016). Further material relevant to the applicant’s case is also to be found in the affidavits filed by the respondent after 18 February 2015 (see the Mr Molan’s affidavit of 17 February 2016).
The issue also relevant now is whether the applicant has sought to take advantage of the passage of some six months between the dismissal of his application for non-appearance and his application to reinstate that application to provide further material to support the strength of his case.
The actual time taken by the applicant to apply for the reinstatement of his substantive case after its dismissal on 18 February 2015 is also of relevance to the current consideration. The relevant Application in a Case was not filed until 4 September 2015, that is, over six months later.
Plainly, whether the applicant has an arguable case for the substantive relief that he seeks, will derive from the assessment of the material put before the Court. However, it is to be remembered that relevant to the Court’s discretion is also whether there is a real dispute between the parties arising from the application that requires a final hearing in this Court.
As stated above, the applicant’s grievance arises and originates from his employment with the respondent. The applicant claimed, and continues to claim, that during that employment he was bullied and harassed by a particular manager of the respondent in July/August 2006 (see the points of claim at [8] – [9]), and by other employees of the respondent, and that that harassment continued, albeit variously, and in a different fashion, even after he ceased work, and even after his employment formally ceased. This conduct caused him, and in the applicant’s submissions, continues to cause him, psychological injury and distress.
As stated above, from the material before the Court, the applicant made a complaint to the AHRC on 13 August 2013. This was supplemented with further amendments to this complaint. Amongst other matters, the applicant sought compensation from the respondent for the “detriment” he suffered. This included compensation for loss of income, depression and anxiety, pain and suffering, humiliation and “other”. The complaint was terminated on 14 March 2014. The notice of termination advised the applicant that he could pursue the matter with the Court. His application to the Court was made on 13 May 2014.
It would appear that concurrently, the applicant pursued various workers compensation claims. These were made in February 2013, April 2013 and May 2014 for “lump sum compensation” (see [24] of Ms Plowman’s affidavit of 17 February 2015 and see “KAP-16” annexed to that affidavit).
As at 17 February 2015, the applicant had not taken steps to progress these claims since he was served with relevant notices from the respondent’s workers compensation insurer in July and August 2014 (see [10] of Ms Plowman’s affidavit of 17 February 2015 and see “KAP-16” annexed to that affidavit). This would appear to be inconsistent with his approach to this Court to “adjourn” these proceedings before the Court pending resolution of the workers compensation matter and so that he could focus on that matter.
As stated above, the applicant sent an email to the respondent’s solicitors on 30 December 2014. He sought adjournment of the hearing of the respondent’s AIC scheduled for 18 February 2015. As also set out above, the stated reason for the applicant seeking consent to an adjournment was to allow resolution of his workers compensation claim (see above). This assertion, as at that time, remains unexplained given that the applicant, having been put on notice earlier that year of the position of the respondent’s insurer, had taken no action to press these claims.
As stated above, in his email of 16 February 2015 to the Court Registry seeking an adjournment of the hearing of 18 February 2015, the applicant advanced a number of reasons in support of his request (see above). These included an adjournment pending “resolution of my workers compensation claim which is due to be filed this week”. That is, sometime in February 2015. It is not clear whether this occurred, but there was no reference or reliance on the earlier workers compensation and lump sum compensation claims.
In his written submissions to the Court of 20 April 2016, the applicant made no reference to his workers compensation claims as a reason for his delay in making his application on 4 September 2015 to set aside the orders made on 18 February 2015 in his absence.
As set out above, in his submissions the applicant stressed that the ongoing incidents of harassment which exacerbated his psychological condition were a major factor in his inability to attend the hearing on 18 February 2015, or prepare for that hearing. For the reasons set out above, I do not accept the applicant’s argument as providing a satisfactory explanation for his failure to attend. The applicant advanced the same arguments in relation to his delay in his making his application for reinstatement. In oral submissions before the Court, the applicant submitted that the two reasons for his incapacity to act earlier were his “mental exhaustion” arising from ongoing intimidation, as well as his involvement in “my workers compensation claim”.
The picture that emerges, therefore, is that the applicant’s grievance originated during his employment with the respondent, and took “shape” in 2011 arising from a number of workplace incidents, which he saw as harassment and discrimination. He claims continuing incidents of harassment, all of which exacerbated the original injury he suffered because of the conduct of the respondent. Further, that following the August 2012 incident, the respondent engaged in conduct to victimise the applicant.
As stated above, he initiated two separate processes to obtain redress, essentially in the form of compensation. One is the complaint to the AHRC, the other is the worker’s compensation proceedings. The applicant has had various periods of activity and apparently greater periods of inactivity, in pressing or prosecuting each of these, usually not at the same time.
The applicant’s statements to the respondent’s solicitors and Court’s Registry in December 2014 and February 2015 that he sought an adjournment to pursue his workers compensation claim, and could not pursue his discrimination proceedings due to a lack of capacity, must be seen in light of the lack of any other material to support the applicant’s claim that he actively pursued his workers compensation claim at the relevant times. In that light, this does not provide any reasonable explanation for the delay in seeking to reinstate his case.
However, even if the applicant’s statement were taken at face value, this still does not assist him in the current proceedings. The applicant, in effect, elected to pursue two separate processes to achieve the outcome of compensation for wrongs which he said were done to him by the respondent.
His election, if his submissions and written statements in emails are to be accepted, that he did not actively press reinstatement of his case after February 2015 until September 2015 because he sought to press his workers compensation matters, cannot be said to be a reasonable explanation in the circumstances, if he was aggrieved by what he believed to be racial discrimination by the respondent.
The relevant circumstances before the Court also provide a basis for another inference to be drawn, which does provide a plausible explanation as to why the applicant delayed his application to reinstate, and only took such action in early September 2015.
On 18 February 2015, in dismissing his application for non-appearance an order was also made that the applicant pay the respondent’s costs as “taxed or agreed”. A Registrar of the Federal Court notified the applicant of an estimate of costs by letter dated 20 August 2015. The coincidence of timing his application to reinstate, of 4 September 2015, gives rise to a reasonable inference in the circumstances (that is, the absence of relevant medical evidence and any reasonable explanation for the delay), that the applicant moved to reinstate his substantive application, at least in part, because of the realisation of the substantial costs for which he was liable. This is not a factor which would argue for the reinstatement of the application in the interests of justice.
Turning to the merits of the applicant’s case the substantive application to the Court must be understood in light of the more detailed explanation provided by the applicant through his Points of Claim. Paragraphs 1 to 5 of the Points of Claim can properly be understood as a biographical background relevant to the applicant which, while relevant as background, do not provide a basis for his application such as to be said to raise any arguable case.
Paragraphs 6 to 7 are plainly an introduction to the allegations in the remainder of the Points of Claim. Paragraph 7 directs attention to
[8] – [51] of the Points of Claim.
In oral submissions before the Court, the applicant pressed his “belief” that the initial complaint about bullying and victimisation by the respondent, and the respondent’s subsequent conduct, was all done because he was of “African” descent.
When pressed before the Court to explain how his complaints to the AHRC, and in light of his Points of Claim, revealed a nexus with the RDA, the applicant asserted that he had been “victimised” because he had made a complaint and that this brought his application within the ambit of the RDA.
A number of issues arise for consideration from the above. First, plainly the RDA seeks to prohibit racial discrimination and makes it unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life (see s.91(1) of the RDA).
However, to make out a prima facie case that an unlawful act of discrimination has occurred within the ambit of the RDA, an applicant must be able to point to material that at least indicates that a causal nexus exists between the conduct of the alleged discriminator, in this case, the respondent, and the applicant’s relevant characteristic. On his own assertion, that is his “African race”. Under the RDA, this connection, to establish the unlawfulness of the impugned conduct, is expressed as requiring the relevant act or conduct to be “based on” race. That is, that the “race” was a reason for the conduct.
Of course, this does not have to be the only reason. Under the RDA, where the impugned conduct, or act, is done for two or even more reasons, so long as one of those reasons is “based on” race, colour, descent or national or ethnic origin of the person on whom the conduct is visited, then for the purposes of the RDA, the impugned act is taken to be done for that reason, even if it is not the dominant or even substantial reason.
Second, the RDA also prohibits “victimisation”. As stated above, the applicant sought to explain the causal nexus by submitting that he had been victimised by the respondent because he had made a complaint. It was not clear whether the complaint to which he referred was the complaint to the AHRC, or other “internal” complaints he had made while employed, which in any event appear to have been largely subsumed in the AHRC complaint.
In any event, s.27(2) of the RDA is of relevance:
“Offences relating to administration of Act
…
(2) A person shall not:
(a) refuse to employ another person; or
(b) dismiss, or threaten to dismiss, another person from the other person's employment; or
(c) prejudice, or threaten to prejudice, another person in the other person's employment; or
(d) intimidate or coerce, or impose any pecuniary or other penalty upon, another person;
by reason that the other person:
(e) has made, or proposes to make, a complaint under this Act or the Australian Human Rights Commission Act 1986 ; or
(f) has furnished, or proposes to furnish, any information or documents to a person exercising or performing any powers or functions under this Act or the Australian Human Rights Commission Act 1986 ; or
(g) has attended, or proposes to attend, a conference held under this Act or the Australian Human Rights Commission Act 1986.”
Third, it is also to be noted that the applicant claimed that the ongoing conduct of the respondent was bullying, harassment and discriminatory to such an extent that it impacted upon and exacerbated his psychological well-being. To the extent that the applicant sought to imply that this behaviour was intimidating, then regard must be had to s.18C of the RDA.
In relation to causal nexus under the RDA generally, and relevant also to intimidation, I said the following in Ibrahim v Australian Dental Council [2012] FMCA 612 at [67] – [73], which is relevant to the current circumstances:
“[67] Second, and flowing from the above, the applicant is required to demonstrate that those alleged instances of discrimination were variously ‘because of’, ‘by reason of’, or ‘based on’ his race/ethnicity.
[68] As submitted by the respondent, s.9(1) of the RDA has been held to require that the applicant demonstrate a ‘sufficient connection’ between the conduct complained of and his race/ethnicity (Macedonian Teachers’ Association of Victoria Inc v Human Rights & Equal Opportunity Commission & Anor [1998] FCA 1650). In this case, the applicant’s has failed to demonstrate such a connection.
[69] Similarly, ss.9(1A), 10, 11, 13 and 15 of the RDA require that the applicant establish, by way of a causal link, that the action complained of was done ‘by reason’ of his race and ethnicity (Commonwealth v McEvoy [1999] FCA 105; (1999) 94 FCR 341 at 353). Further, s.18C requires that the applicant establish that the impugned act was done ‘because of’ his ‘race, colour or national or ethnic origin’. The applicant has failed to make the relevant causal link in relation to any of his complaints.
[70] At the hearing, I alerted the applicant to the need for him to identify a link, or connection, between the alleged conduct of the ADC and his race or religion. I explained to the applicant that he had raised a number of factual matters and asserted that those factual matters occurred because of racial discrimination, but that he had failed to explain why or how those factual matters were ‘because of’, ‘by reason of’, or ‘as a result of’ racial discrimination. The applicant failed to address that lacuna in his argument and, instead and in response, stated that the discrimination was obvious and that ‘... every step of what happened to me, I see as discrimination’.
[71] An example of this was the applicant’s insistence that his name (‘Mohamed’) was such as to easily identify him as being from a particular ethnic (or racial) group (although not pressed as such, but raised generally, also a particular religious group). Even if that were so, and to have been so at the relevant times, the applicant was unable to explain how his name on its own, or his race and ethnicity, resulted in him being discriminated against. A mere and convenient assumption in this regard is not adequate for the purpose of this litigation.
[72] The applicant’s subjective view and interpretation of events is not sufficient on its own and, in the absence of anything further, does not approach the test required to determine his complaints. Those complaints must be found, on balance, to be objectively made out. With reference to s.18C(1)(a) of the Act, an ‘... objective test must be applied in determining whether the act complained of has the necessary offensive, insulting, humiliating or intimidatory quality for it to be within the sub-section’ (Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615 at [15] per Drummond J and see also Creek v Cairns Post Pty Ltd [2001] FCA 1007 at [12] per Kiefel J and Jones v Scully [2002] FCA 1080 at [98] per Hely J).
[73] The applicant’s highly subjective approach only serves to divert, or distract, his case away from the statutory requirement. In that sense it underscores the respondent’s charge of ‘embarrassing’.”
The difficulty for the applicant’s position here is also highlighted by the fact that in pursuing the restoration of his substantive application, he has put a great deal of material before the Court (for example his affidavits of 3 September 2015, 2 March and 29 April 2016).
There is nothing in that material to indicate that the applicant can mount a reasonable case with some prospects of success from the bare and unparticularised assertions at [51] of the Points of Claim.
The applicant’s reference in the last sentence of [51] of the Points of Claim must be viewed in its context. That statement was made in September 2014. There was no satisfactory explanation from the applicant as to why he did not pursue or press this matter in the ensuing sixteen months available to him, and in particular in the eight months since he filed his Application in a Case.
Further, the actual language of the last sentence in [51] of the Points of Claim cannot be ignored. What the applicant says will be “particularised” after the “production of subpoenaed documents” in relation to the jobs “applied for”. That is, the jobs he applied for with the respondent over a period of seven years.
Given that the applicant in the remainder of [51] of the Points of Claim makes general reference, without particularity in the sense of identifying them, to “several applications for both clerical and professional legal officer positions and secondments”, it is reasonable to understand the last sentence as saying that the identification of the actual position would occur after production of documents from the respondents.
However, it is in my view reasonable in the circumstances to expect that the applicant would have known of the positions for which he applied. Indeed at annexure “I” to his affidavit of 23 January 2016 he lists some of the jobs for which he applied. Nor was there anything further in the material subsequently filed by the applicant, or in his oral submissions, to indicate that there was an expectation on his part that the subpoenaed documents would provide any further basis to give particularity to his bare allegations that he was treated less favourably.
As it stands, [51] of the Points of Claim, not only lacks any requisite merit, but can also be described as “embarrassing”. On its face, it is not apparent that the “positions and secondments” to which the applicant refers can be said to be linked to, or substantially the same as, the general complaint of his failure to “obtain promotion” (see [1.1] – [2.3] of his statement to the AHRC of 13 August 2013).
It is of relevant note that the statement of complaint to the AHRC on 13 August 2013 does make specific mention of a list of “NSWPF Jobs for Which I Have Applied or Lodge Expressions of Interest (EOI) Over 7 Years, All of Which Have Been Unsuccessful” (see [4] of his statement to the AHRC of 13 August 2013).
However, as quoted above, the applicant’s statement in the last sentence of [51] of the Points of Claim states that the jobs generally referred to in the Points of Claim will be “particularised after production of subpoenaed documents”. That is unexplained and remained unexplained in light of what was specifically listed in the complaint. If the applicant had such a long and comprehensive list, he did not explain what further relevant particularity he was expecting to obtain from the subpoenaed documents.
What also remained unexplained before the Court, and it appears before the AHRC, was the statement at the end of [4] of the complaint to the AHRC “these are approximate dates” and that “a more precise chronology and identification of positions applied for will be provided in due course as required”. This would reasonably imply that the applicant was able to access other material available to him to provide what further particularity was “required”.
Paragraph 51 of the Points of Claim, when read in light of the above, also falls within the deficiency generally in relation to [8] – [50] of the Points of Claim. That is, there is no explanation in the requisite sense, to reasonably reveal a link between the claimed conduct of the respondent in relation to the claimed denial of promotion to the applicant, and his race. The Points of Claim do not seek to explain, or present “facts” from which the explanation may arise, as to how this nexus can be revealed. Nor has the applicant satisfactorily addressed this in the material subsequently filed in these proceedings.
In all therefore, the claims made by the applicant before the Court, and as those claims can be understood in light of material filed in support of the Application in a Case to reinstate, do not reveal that the application to the Court has any reasonable prospect of success or has such merit as to argue for reinstatement and a final hearing in the interests of justice. The order sought by the applicant in his first Application in a Case to reinstate his substantive application, should therefore be dismissed.
Two: Extension of Time to Object to Costs Estimate
By his second Application in a Case filed on 18 November 2015, the applicant seeks the following order:
“1. An order under rules 1.06, 3.05(2) and (3) and 16.01that the time limit of 21 days to lodge a notice of objection to the Registrars notice of the estimate of costs dated 20 August 2015 be extended to a date to be fixed after the determination of the Application in a Case filed by the Applicant on 4 September 2015.”
It is to be noted that order 3 sought in the first Application in a Case made on 4 September 2015 is in the following terms:
“An order under rule 1.06 and 3.05 that the time to lodge an application to review the registrars estimate of costs be extended to a date after the determination of this application.”
It is not clear why the applicant filed the second Application in a Case given the similarity in the relief sought. In the circumstances, I have proceeded on the basis that the application to extend time by which to lodge an application to review the Registrar’s estimate of costs was made on 4 September 2015.
As stated above, when the substantive application was dismissed on 18 February 2015 because of the applicant’s non-appearance, an order was also made in the following terms:
“The applicant pay the respondent’s costs of the substantive proceedings, including the respondent’s costs in relation to the application in a case made on 17 October 2014, as taxed or agreed.”
On the material before the Court, it appears that a Registrar of the Court undertook the task set by the Court’s order, and by letter dated 20 August 2015, the Registrar notified the applicant of the estimate of costs (see annexure TMM-1, pages 145 – 147 to Mr Molan’s affidavit).
The FCC Rules do not specifically provide for the process involved in the taxation of costs. Pursuant to s.43(2)(b) of the Federal Circuit Court of Australia Act 1999 (Cth) (“the FCCA Act”), therefore, the relevant provisions are to be found in Part 40, Division 40-2 of the Federal Court Rules 2011 (Cth) (“the FC Rules”). In short, as set out above, the relevant provisions relevantly operate by incorporation into the FCC Rules by s.43(2)(b) of the FCCA Act.
Relevantly, the applicant was required, pursuant to r.40.21 of the FC Rules, to object to the notice of the estimate within 21 days after the issue of the notice. This required him to file a notice of objection (“Form 128”) and to pay an amount of $2,000 as security for the costs of the taxation of the bill of costs.
As set out above, the applicant now relies on r.1.06, r.3.05(2) and (3), and r.16.01 of the FCC Rules, to argue for the extension of the 21 day time period. Rule 16.01 of the FCC Rules provides that the Court may make any order at any time. Rule 1.06 of the FCC Rules provides that the Court may, in the interests of justice, dispense with the compliance or full compliance with the Rules. Rule 3.05(2) of the FCC Rules does not appear relevant given its reference to what a Registrar may do. It would appear that the applicant really seeks to invoke r.3.05(1) and (3) of the FCC Rules dealing with the extension of time by the Court.
I accept the respondent’s submission that the relevant object of these rules is to avoid injustice to the parties (Brookfield v Capital Finance Australia Ltd [2012] FCA 415 at [7]). In this light however, there must be some basis arising from the material before the Court, such that the Court can properly exercise the discretion to extend time. There must at least be an arguable case for the extension to justify the exercise of the discretion (M211 of 2003 v Minster for Immigration and Multicultural and Indigenous Affairs [2004] FCA 660 at [15]).
The relevant material put by the applicant before the Court in relation to this issue is essentially what is set out at [24] – [27] of the applicant’s affidavit of 3 September 2015. While the applicant’s written submissions of 20 April 2016 address the matter of the “costs order” (at pages 6 – 8) the submissions appear to be directed to the “setting aside” of the costs order, rather than an extension of time in relation to the Registrar’s estimate (see order 2 in his AIC of September 2015, and see further below).
At its highest, the applicant’s argument in support of the application for an extension of time is, in essence, what he has put in his reasons for non-attendance, and in explanation for the “delay” in pursuing his case before the Court. That is, his ill health and “psychological injury” meant that he did not have the capacity to analyse the “bill of costs” when it was sent to him by the Registrar. He asks for more time to obtain legal advice. The applicant also makes reference to “other circumstances”, but these were not identified before the Court in the context of the extension of time.
The applicant also asks that in setting aside the order dismissing the substantive application for non-appearance the Court should put a “stay” on the costs order pending resolution of his workers compensation claim.
This appears to be consistent with the applicant’s “submissions” (as they arise from the various materials before the Court) that the Court “suspend” the applicant’s current case pending resolution of the workers compensation application, which the applicant states “canvasses the same issues” as the substantive application and should “be resolved first”.
As stated variously above, the applicant had a series of grievances against the respondent. He commenced two separate processes to address these grievances. One was the workers compensation application. The other was the complaint to the AHRC, and subsequently the Court. It is important to note that the applicant does not assert that he did not receive the notice of the estimate from the Registrar by letter dated 20 August 2015.
As set out above, the applicant’s lack of impulsion in prosecuting the proceedings before this Court in favour of the workers compensation claim is an element against the exercise of the discretion to reinstate his originating application. It is also a relevant element in the consideration of the extension of time. The applicant’s election to pursue the workers compensation matter does not provide a sufficient basis to warrant an extension of time to lodge the relevant objection.
In addition to the workers compensation matter, the applicant’s reasons for seeking the extension are his claimed lack of capacity arising from his claimed psychological state and lack of knowledge. Both matters were also raised in relation to the application to reinstate his original application. For the reasons set out above, and findings on these submissions, which apply equally to this issue, neither claim raises a sufficient basis to extend time.
As set out above, the notification from the Registrar was dated 20 August 2015. The applicant’s affidavit which raises these matters was made on 3 September 2015 and filed the following day. Both dates are within the 21 day period. His affidavit plainly makes reference to 10 September 2015 as the “deadline” by which he could challenge the estimate made by the Registrar.
The applicant’s assertions as to why he could not lodge the objection within time are not accepted as providing a basis to now extend time. There has been no reasonable or satisfactory explanation from the applicant as to the failure to notify the objection.
The relevant form, referred to in r.40.21 of the FC Rules, is “Form 128” (r.40.21(1)(a) of the FC Rules). That form simply requires sufficient detail to notify an objection. I cannot see that the completion of the form, and its lodgement, requires any analysis of the bill prepared by the Registrar. The Form 128 only requires identification of the parties and the proceedings. All of this could have been “copied” from the Registrar’s letter of 20 August 2015.
Given that at the relevant time the applicant was able to draft and file his affidavit of 3 September 2015, and his Application in a Case on 4 September 2015, I cannot accept that he was incapable of filling out “Form 128”.
The respondent also submitted that even if the Court were to grant the extension, there is, in the circumstances presented by the applicant, a “high likelihood” that it would be an exercise in futility. This is because he is required to provide a security of $2000 for the costs of the taxation of the bill of costs. There was no indication from the applicant before the Court that he had lodged or would even seek to lodge an application for a waiver of the security.
In this regard, I note that even if he had, or were to lodge such a request for a waiver it would only be granted in “exceptional circumstances” (see Dudzinski v Kellow [2000] FCA 740 (“Dudzinski”) at [25] – [26] and NAES v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1221 at [13]). Nor has the applicant pointed to any circumstances which could be said to be compelling such as to support the exceptional waiver of the requirement for security (Dudzinski at [36] – [37]).
In essence, and at its highest, the applicant claimed to be impecunious and in financial difficulty because he is unemployed due to his psychological injuries and is not receiving employment benefits. These financial difficulties were said to have extended to the sale of his house. The difficulty for the applicant now is that there is nothing in the material (with reference to the applicant’s affidavits) that he has presented to the Court since, and including 3 September 2015, to provide a basis for his claimed impecunious state.
In all, I cannot see that the applicant’s application for an extension of time should be granted. The Application in a Case of 18 November 2015 and to the extent it expands on order 3 of the Application in a Case of 4 September 2015 is to be dismissed.
Three: Setting Aside Costs Order and Application for Adjournment
As set out above, the Application in a Case of 4 September 2015 also asks for an order that “the hearing of his claim”, in context, the substantive application, be “stayed” until the resolution of his workers compensation claim.
Given that the Application in a Case to reinstate the applicant’s substantive application is to be dismissed it is not necessary to consider whether an “adjournment” of the hearing of the substantive application should be granted.
The Application in a Case also seeks an order that the applicant’s case be referred, pursuant to r.12.02 to a lawyer for legal assistance. Given that the Application in a Case is otherwise unsuccessful in restoring the substantive application, it is not necessary to consider this request.
In any event, I note with reference to r.12.02(2)(b) of the FCC Rules, that the applicant on his own assertion has sought legal aid and was awaiting a response, as he said, from the “Attorney-General”. Further, with reference to r.12.02(2)(c), without some evidence of the causal connection between the claimed conduct by the respondent and race, the case cannot be said to raise complex issues to move the Court to issue a certificate pursuant to r.12.02(1) of the FCC Rules.
Finally, in his written submissions of 20 April 2016, the applicant makes submissions on the matter of “setting aside” the “costs order”, as requested in his first AIC.
Contrary to the applicant’s assertion of no legal capacity, the submissions under this heading make extensive reference to various authorities and legal propositions said to arise from those authorities.
The applicant acknowledges that the “onus lies on the losing party to establish a basis for any departure from the usual role (the default position) that costs follow the event” and makes reference to Waterman v Gerling Australia Insurance Co Pty Ltd (No.2) [2005] NSWC 1111 at [10].
The relevant event in the current proceedings is the dismissal on 18 February 2015 of the substantive application made by the applicant because of his non-appearance. For the reasons set out above the order dismissing that application is not to be disturbed. The costs order following the event of the dismissal should also stand given that the applicant has not established a basis for departing from the “usual practice”.
The applicant’s submissions also appear to assert that the respondent as the successful party should not in any event receive costs because of disentitling conduct by the respondent being misconduct and “criminal” conduct in relation to the applicant.
Plainly allegations that the respondent’s employees, in this case a large number, have engaged in criminal conduct, or that the respondent “conspired” with unknown individuals to engage in criminal conduct are very serious.
I note that the RDA does contemplate the application of the criminal code to offences against the RDA (s.6B of the RDA). However, the applicant’s submissions in this regard suffer from the deficiencies already set out above. In particular, the applicant’s subjective characterisation that managers and supervisors employed by the NSW Police engaged in criminal conduct towards him remain, at best, even with the volume of material he has provided, as subjective perceptions. The allegations of criminal conduct and conspiracy from unknown persons, for example, parking their cars across the street from his house, remain fanciful. The order to set aside the costs order made on 18 February 2015 should not be made.
Finally, the respondent submitted that the applicant’s Application in a Case for reinstatement of his substantive application, also sought that the hearing be “adjourned” or postponed pending the resolution of his workers compensation application, is itself revealing of conduct by the applicant which argues against the reinstatement of his substantive application.
The object of the RDA is to make unlawful certain conduct “involving a distinction, exclusion, restriction or preference based on race…” (s.9(1) of the RDA). Specifically, in relation to employment, the RDA makes unlawful certain conduct in the employment context for the same reasons (s.15 of the RDA).
The focus of, relevantly, the Workers Compensation Act 1987 (NSW) (“the WCA”) is to compensate employees for certain work related injuries. The colloquial description of the Workers Compensation Act, and its focus as “accident compensation”, provides the characterisation that the focus of such legislation is compensation. It is important to note that compensation does not necessarily require “fault” by the employer. The WCA sets out amounts of compensation payable according to the nature of the injury or its consequences.
In short, although a generalisation, the RDA is focussed on prohibiting conduct of discrimination or victimisation including conduct in the workplace based on the race. The WCA operates as an injury insurance scheme to compensate pecuniary loss for work related injuries.
In context, the applicant’s reference at [26] of his affidavit of 3 September 2015 to “the same issues” is understood to be the “issues” in his workers compensation proceedings and his proceeding before this Court arising from the claimed conduct of the respondent as variously asserted by the applicant and as set out above. The applicant’s request that his substantive application be “put on stay” in favour of the resolution of the workers compensation matter, gives rise to a reasonable inference in the circumstances presented, that the applicant’s focus is the pursuit of compensation for work related injuries, rather than pursuing the objectives of the RDA.
It is the case that if the applicant’s substantive application were to have been reinstated and he was ultimately successful he may have received “damages” for loss. However, what is in my view relevant to the current consideration is that the applicant’s focus and interest is to obtain compensation for what he says are work related injuries. In that light, his own conduct in initiating these proceedings, his failure to provide a satisfactory explanation for his non-attendance and the delays in prosecuting his case before this Court, becomes an element that argues against the making of the orders that he seeks.
Conclusion
The applicant’s Applications in a Case of 4 September 2015 and 18 November 2015 should be dismissed. I will make the relevant order accordingly.
I certify that the preceding two hundred and fifty-one (251) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 2 August 2016
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