L v Commonwealth of Australia & Ors
[2008] FMCA 658
•22 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| L v COMMONWEALTH OF AUSTRALIA & ORS | [2008] FMCA 658 |
| HUMAN RIGHTS – The Court has no jurisdiction to entertain proceedings under s.46PO of the Human Rights and Equal Opportunity Act 1986 unless the criteria of s.46PO(1) and (3) are satisfied – allegations of sex discrimination and sexual harassment far-fetched – disability discrimination in employment not made out on an arguable basis – allegations of disability discrimination in government programs not credible, there being many other and more probable explanations for the events in question – allegations of disability discrimination in the provision of services were no more than assertions and were not credible – allegations of victimization no more than speculation and were unsupported by evidence. |
| Human Rights and Equal Opportunity Commission Act 1986, ss.46PH, 46PO Federal Magistrates Act 1999, s.61 Disability Discrimination Act 1992, ss.4, 5, 15, 29, 42, 43, 122 Sex Discrimination Act 1984, ss.5, 6, 14, 26, 28A, 28B, 28L, 94, 105, 106 Administrative Decisions (Judicial Review) Act 1977 Guardianship Act 1987 (NSW) |
| L v HREOC & Anor [2006] FMCA 1291 Phillips v Australian Girls’ Choir & Anor [2001] FMCA 109 Ferrus v Qantas Airways Ltd [2006] FCA 812 Drew v Bates [2005] FMCA 1221 Jandruwanda v Regency Park College of TAFE [2003] FCA 1455 Hollingdale v Northern Rivers Area Health Service [2004] FMCA 721 Rana v University of South Australia [2004] FCA 559 Vel v Human Rights & Equal Opportunity Commission (1997) 47 ALD 219 X & Ors v Australian Prudential Regulation Authority [2007] HCA 4 L v Human Rights & Equal Opportunity Commission [2006] FCAFC 114 |
| Applicant: | L |
| First Respondent: | THE COMMONWEALTH OF AUSTRALIA |
| Second Respondent: | THE NATIONAL CONVENOR, THE SOCIAL SECURITY APPEALS TRIBUNAL |
| Third Respondent: | THE SECRETARY, THE DEPARTMENT OF FAMILIES, COMMUNITY SERVICES & INDIGENOUS AFFAIRS |
| Fourth Respondent: | THE GENERAL MANAGER, CRS AUSTRALIA |
| Fifth Respondent: | THE STATE OF NSW |
| Sixth Respondent: | ANNETTE O’NEILL |
| Seventh Respondent: | STEPHEN HODGES |
| Eighth Respondent: | JULIAN MILLAR |
| Ninth Respondent: | AMANDA MACDONALD |
| File Number: | SYG 3230 of 2006 |
| Judgment of: | Cameron FM |
| Hearing date: | 6 June 2007 |
| Date of Last Submission: | 6 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 22 May 2008 |
REPRESENTATION
The Applicant appeared in person.
| Solicitors for the First, Second, Third, Fourth, Sixth, Eighth and Ninth Respondents: | Australian Government Solicitor |
| Solicitors for the Fifth Respondents: | I.V Knight, Crown Solicitor |
ORDERS
The application to bring these proceedings out of time be refused.
The proceedings be dismissed.
The application to join the New South Wales Guardianship Tribunal in these proceedings be refused.
The publication of the applicant’s name be forbidden.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3230 of 2006
| L |
Applicant
And
| THE COMMONWEALTH OF AUSTRALIA |
First Respondent
| THE NATIONAL CONVENOR, THE SOCIAL SECURITY APPEALS TRIBUNAL |
Second Respondent
| THE SECRETARY, THE DEPARTMENT OF FAMILIES, COMMUNITY SERVICES & INDIGENOUS AFFAIRS |
Third Respondent
| THE GENERAL MANAGER, CRS AUSTRALIA |
Fourth Respondent
| THE STATE OF NSW |
Fifth Respondent
| ANNETTE O’NEILL |
Sixth Respondent
| STEPHEN HODGES |
Seventh Respondent
| JULIAN MILLAR |
Eighth Respondent
| AMANDA MACDONALD |
Ninth Respondent
REASONS FOR JUDGMENT
The applications
The applicant seeks relief pursuant to s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (“HREOC Act”).
The proceedings arise out of the termination by the Human Rights and Equal Opportunity Commission (“Commission”) of the applicant’s complaints against the Social Security Appeals Tribunal (“SSAT”), the sixth, seventh and ninth respondents to these proceedings and “others”. The Commission’s Notice of Termination was dated 19 January 2004 and a copy is Exhibit “A” in these proceedings.
In her application filed 6 November 2006 in this Court, the applicant seeks apologies and damages, including aggravated and exemplary damages, against all the respondents.
That application was not filed until 6 November 2006, well outside the 28 day limitation period provided by s.46PO(2) of the HREOC Act. Consequently, and most significantly for current purposes, the applicant also seeks interlocutory orders for:
a)leave to commence proceedings out of time;
b)discovery; and
c)suppression of her name under s.61 of the Federal Magistrates Act 1999.
On 6 June 2007 the applicant was granted leave to amend the application to claim against the first, third and fourth respondents orders that:
1. Any instrument relied upon by these respondents as constituting consent to the provision of DSA programmes and services, is revoked, or terminated, or null and void.
2. All DSA programmes and services are to be terminated.
3. Apologies are to be made.
4. Compensatory damages to be paid, including the replacement of my home unit with property of my choosing and of a comparable or no less size and quality.
At the same time the applicant was granted leave to amend the relief she sought against the fifth respondent to seek the following orders:
1. All medical treatment involuntarily administered, in all its forms, is to cease. Any consent is revoked or null and void.
2. My places of dwelling are not to be entered.
3. All forms of surveillance and observation are to cease.
4. The disclosure of information about me is to cease.
5. Apologies.
6. Compensation.
By an interlocutory application filed on 28 November 2006, the applicant also seeks leave to join the New South Wales Guardianship Tribunal as a party to the proceedings.
The third, fourth and fifth respondents seek orders that they be removed as respondents to the proceedings
Complaints to the Commission
In September 2003 the applicant made complaints to the Commission which, in its response to her dated 17 September 2003, it summarised as outlining:
· a brief history of your employment with various workplaces between 1992 to 2002.
· details of various conversations you claim to have had with work colleagues over this time.
· information relating to complaints you have made to either your previous employers, this Commission or the Health Care Complaint Commission.
· your dissatisfaction with various organisation/persons when pursuing [your] earlier complaint you had lodged with the Commission in 2001 through the Federal Magistrates Service.
· breakdown in your family relations.
· grievances you have with various retail outlets about disputed credit transactions and service provision.
· allegations that you have been sexually harassed in your employment and discriminated against because of your marital status.
· allegations of victimisation by various organisations/persons.
· allegations of aiding and abetting unlawful discrimination by various persons.
· allegations that you have been imputed to have a psychiatric disability by various organisations/persons over a period of time.
(Annexure “A” to the applicant’s affidavit affirmed 22 February 2007, p.5.)
It was unclear to the Commission which organisations or persons the applicant was alleging had unlawfully discriminated against her and what specific acts or actions she relied upon to support such allegations. Consequently, it required the applicant to document her allegations separately. According to the Commission’s letter dated 24 November 2003 (Annexure “A” to the applicant’s affidavit affirmed 22 February 2007, pp.28-32) the applicant wrote to it again on 7, 14, 17, 19 and 20 November 2003 alleging discrimination and victimisation under the Sex Discrimination Act 1984 and disability discrimination under the Disability Discrimination Act 1992. In that letter of 24 November 2003 the Commission advised that the applicant’s complaint against the SSAT was accepted as a complaint alleging sexual harassment, marital status discrimination and victimisation under the Sex Discrimination Act1984 and disability discrimination under the Disability Discrimination Act 1992. The Commission’s letter also recorded that:
a)complaints against twenty-six friends, acquaintances and family members were not accepted as complaints under the HREOC Act because her concerns about the conduct of those persons were not covered by the laws administered by the Commission;
b)complaints against the Refugee Review Tribunal and twenty of its members and staff were not accepted as a complaint under the HREOC Act on the basis that the material the applicant supplied was highly generalised, lacking in specificity and the applicant had failed to provide particular details of any specific acts that any of the individuals had engaged in that could constitute unlawful discrimination or victimisation;
c)the applicant’s complaint against the Macarthur Legal Centre and eleven related individuals did not provide information sufficient to constitute a complaint under the HREOC Act because the complaints did not provide details of specific less favourable treatment to which the applicant had been subjected as a result of an imputation to her of a psychiatric condition;
d)the applicant’s complaint against the Commonwealth Rehabilitation Service (the fourth respondent in these proceedings), the New South Wales Department of Health and the Office of the Protective Commissioner were not accepted as complaints because the applicant had not provided clarity in her allegations of discrimination and victimisation;
e)the applicant’s complaint about Centrelink and five related individuals was not accepted as a complaint under the HREOC Act because the information provided was highly generalised, lacking in specificity and failed to provide details of any specific act that would constitute unlawful discrimination or victimisation;
f)the applicant’s complaints against three legal practitioners were not accepted. In respect of one solicitor, there was no relationship between her and the applicant that would bring the applicant’s allegation under an area of public life covered by the relevant legislation and, in relation to the other solicitors, the applicant failed to provide particular details of conduct that could constitute unlawful victimisation or discrimination.
In its letter of 25 November 2003 (Annexure “A” to the applicant’s affidavit of 22 February 2007, pp.33-35) the Commission wrote to the applicant advising that it did not accept further correspondence from her as amounting to complaints against:
a)AGL Retail Energy Limited, the Legal Practitioners Admission Board and the Sydney Theatre Company;
b)two medical practitioners;
c)the Refugee Review Tribunal and eight members of the Tribunal staff; and
d)seven legal practitioners.
By letter dated 15 December 2003 (Annexure “A” to the applicant’s affidavit affirmed 22 February 2007, pp.43-44) the Commission wrote again to the applicant in response to her letters of 27 November 2003 and 2, 3, 4, 8, 10 and 11 December 2003 in which the Commission advised that it did not accept that correspondence as a complaint against:
… various stores, banks, legal practitioners, recruitment agencies, removal companies, State and Commonwealth government agencies, Doyle Spillane Real Estate, Mona Vale Motel, Kinkos, all General Whitegoods Service, the Australian Banking Industry Ombudsman, the CPSU and Pierre Haddad Hair Management.
That letter also confirmed that the Commission was investigating the applicant’s complaint against the SSAT.
The applicant subsequently renewed her claims against the Refugee Review Tribunal and various members and employees of that Tribunal and the Commonwealth Rehabilitation Service and members of its staff. She also made claims against various legal and medical practitioners, Doyle Spillane Real Estate and the Legal Practitioners Admission Board. The decisions of the Commission not to entertain or investigate those further matters were articulated in a decision dated 9 January 2004: L v HREOC & Anor [2006] FMCA 1291 at [3].
On 19 January 2004 the Tribunal terminated the complaint against the SSAT and various staff members, including the sixth, seventh and ninth respondents to these proceedings on the basis that it was lodged more than 12 months after the alleged unlawful discrimination took place.
Seeking review of the Commission’s decisions of 9 and 19 January 2004 the applicant commenced proceedings in this Court pursuant to the Administrative Decisions (Judicial Review) Act 1977 (“ADJR Act”).
The judgment of Driver FM in L v HREOC & Anor records that the Commission conceded so much of the application as related to its decision of 9 January 2004 to refuse to accept complaints against the Refugee Review Tribunal and various members and employees of that Tribunal, the Commonwealth Rehabilitation Service and members of its staff, various legal and medical practitioners, Doyle Spillane Real Estate and the Legal Practitioners Admission Board. His Honour set aside that 9 January 2004 decision and remitted those complaints to the Commission for investigation according to law.
The remaining ADJR Act relief which the applicant sought from Driver FM, which concerned the 19 January 2004 notice of termination the subject of these proceedings, was not granted. His Honour found that the applicant had failed to demonstrate reviewable error in relation to the Commission’s decision to terminate its investigation of that complaint pursuant to s.46PH(1)(b). Following his Honour’s judgment on 30 October 2006 the applicant commenced these proceedings on 6 November 2006 seeking relief under the HREOC Act.
Discrimination alleged by the applicant
Prior to judgment in these proceedings being reserved, the applicant filed nine handwritten affidavits, some of considerable length. Subsequent to judgment being reserved, a further affidavit was filed but rejected as it had been filed without leave. Leave to file that document has not been sought subsequently. The nine regularly filed affidavits tend to be prolix and discursive. Much of what the affidavits contain does not relate to the parties to these proceedings. The evidence of the applicant regarding the respondents is referred to later in these reasons.
Applicant’s application to commence proceedings out of time
As already noted, s.46PO(2) of the HREOC Act provides that the application in these proceedings had to be made within 28 days after the issue of the termination notice unless the Court extends the time for the bringing of the proceedings. The relevant 28 day period expired in February 2004 and the application to this Court was filed on 6 November 2006. Consequently, unless the Court grants the applicant the leave she seeks, she is out of time to bring these proceedings.
In Phillips v Australian Girls’ Choir & Anor [2001] FMCA 109 at [10], McInnis FM set out the principles to be applied in exercising the Court’s discretion whether to grant an extension of time in a human rights application. The principles as summarised by his Honour were as follows:
1. There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The "prescribed period" of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 550).
2.It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential pre-condition (Comcare v A'Hearn (1993) 45 FCR 441 and Dix v Client Compensation Tribunal (1993) 1 VR 297 at 302).
3. Action taken by the applicant other than by making an application to the court is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised. (See Doyle v Chief of Staff (1982) 42 ALR 283 at 287)
4. Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension. (See Doyle at p 287)
5. The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic at p 416)
6. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. (See Lucic at p 417)
7. Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion (Wedesweiller v Cole (1983) 47 ALR 528).
In Ferrus v Qantas Airways Ltd [2006] FCA 812 at [19] and [20], Collier J quoted the judgment of McInnes FM in Phillips v Australian Girls’ Choir with approval and her Honour also agreed with Phipps FM’s distillation of those seven principles (in Drew v Bates [2005] FMCA 1221) into three matters, namely:
a)explanation for delay;
b)any prejudice to the respondent; and
c)whether the applicant has an arguable case.
Given the way the complaints have been made and the number of parties involved, it is convenient to deal first with the question of whether the applicant has an arguable case.
Arguable case: the third, fourth and fifth respondents’ applications to be removed from the proceedings; jurisdiction
The third, fourth and fifth respondents say that they should not have been joined in these proceedings and should be removed because they were not respondents to the complaint terminated by the Commission. In this regard it is necessary to have regard to s.46PO of the HREOC Act which gives the Court jurisdiction in proceedings such as these. Sub-section (1) provides:
If:
(a)a complaint has been terminated by the President under section 46PE or 46PH; and
(b)the President has given a notice to any person under subsection 46PH(2) in relation to the termination;
any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Magistrates Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.
Sub-section (3) provides:
The unlawful discrimination alleged in the application:
(a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or
(b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.
Therefore, the only unlawful discrimination in respect of which this Court has jurisdiction is that which is at least the same in substance as the unlawful discrimination that was the subject of the terminated complaint or arose out of at least substantially the same acts, omissions or practices that were the subject of the terminated complaint. Further, the proceedings in this Court must be brought against respondents to the complaint made to the Commission. Unless these criteria are satisfied the Court does not have jurisdiction in respect of the complaint: Jandruwanda v Regency Park College of TAFE [2003] FCA 1455; Hollingdale v Northern Rivers Area Health Service [2004] FMCA 721.
As these proceedings can only be competent as against respondents to the terminated complaint, in order to reach a conclusion on the third, fourth and fifth respondents’ applications to be removed from these proceedings as well as on the related issue of whether the applicant should be given leave to commence these proceedings out of time, it is necessary to identify who were the respondents to the complaint which was terminated by the Commission.
The way the Commission relevantly expressed itself was that the applicant’s complaint against the SSAT, the sixth, seventh and ninth respondents “and others” was terminated. The “others” referred to are probably the six other SSAT officers referred to in the Notice of Termination. Although it is not clear whether those six additional individuals were the “others” referred to by the Commission, as they are not parties to these proceedings, they need not be considered further.
What does need to be considered is whether the third, fourth or fifth respondents to these proceedings fall into that group of “others” referred to by the Commission. As already observed, the applicant’s complaints were many and were expressed in several communications. The Commission dealt with them either by terminating them, those being the subject of these proceedings, or by not entertaining them, one of which decisions Driver FM set aside when he ordered the Commission to investigate certain complaints according to law.
As to the latter, because the Commission’s decision of 9 January 2004 is not before the Court, its substance can only be deduced from the decision of Driver FM in L v HREOC and a copy of this Court’s subsequent, amended order dated 22 February 2007 (part of Annexure “C” to the applicant’s affidavit affirmed 4 June 2007, p.52). These indicate which of the applicant’s complaints were remitted to the Commission by his Honour and it is clear enough that his Honour remitted all claims before him other than those relating to the SSAT and its officers which were the subject of the 19 January 2004 termination decision (see [31], [32] and [41] of his Honour’s decision).
His Honour’s judgment and order, together with the course of correspondence between the applicant and the Commission which is annexed to her affidavit of 22 February 2007, although apparently incomplete, leads to the conclusion that such complaints as the applicant made against the fourth respondent (described as “CRS Australia”) were not considered by the Commission to have been proper complaints, were not entertained by it and were amongst the complaints remitted by Driver FM to the Commission for investigation according to law.
In case there may be a difference between the fourth respondent (“The General Manager, CRS Australia”) and CRS Australia, the Notice of Termination makes it clear that the fourth respondent was not a respondent to the terminated complaint in any event.
As to the fifth respondent, the State of NSW, the Commission had declined to investigate the applicant’s complaint against the NSW Department of Health by a separate decision prior to the 9 January 2004 decision (see [10] above). The applicant has submitted that the fifth respondent, in the form of the New South Wales Department of Health, was a respondent to the terminated complaint of 19 January 2004 on the basis that the parameters of the complaint included but were not limited to those set out in the notice of termination and that reference can be had to antecedent correspondence to identify the true terms of the complaint: Hollingdale v Northern Rivers Area Health Service. While it is true that a degree of flexibility is appropriate when identifying the scope of a complaint to the Commission, the issue here is not one of the application of s.46PO(3) and whether the proceedings in this Court allege discrimination the same or the same in substance as the complaint to the Commission, which is what was considered in Hollingdale v Northern Rivers Area Health Service. Here the question is the application of s.46PO(1) and whether the respondents to these proceedings are the same as the respondents to the complaint terminated by the Commission. As noted above, the evidence demonstrates that it was in its letter of 24 November 2003 that the Commission advised that it did not accept as a complaint that part of the applicant’s correspondence referring to the NSW Department of Health.
Additionally, the Notice of Termination makes it clear that it related to the SSAT and its officers, not to the NSW Department of Health or to the State of NSW.
As to the third respondent, the applicant herself says in her affidavit of 17 January 2007 (para.3):
In 2003 I had not yet read the Disability Services Act 1986 (Cth) (“DSA”) and I did not know that it was administered by the Department of Families, Community Services and Indigenous Affairs. … This is why DFaCSIA was not specifically referred to in the 16 September 2003 complaint. However my complaint involves the Secretary of DFaCSIA making unlawfully discriminatory decisions in relation to me under ss.19, 20(3) or (5) or 28(5) and other sections of the DSA. I learned, or realised, this in 2004 when I first read the DSA and began making Freedom of Information inquiries of CRS, DFaCSIA, the Guardianship Tribunal, Centrelink, the SSAT, the RRT and the HREOC, as well as the New South Wales Department of Health.
Thus the complaints against the third, fourth and fifth respondents were not among the complaints terminated by the notice of termination dated 19 January 2004 which is the subject of these proceedings.
As a result I find that as the application, in so far as it relates to the third, fourth and fifth respondents, does not meet the criteria set out in s.46PO(1) and the Court has no jurisdiction in relation to those complaints. The applicant thus has no arguable case in respect of them. Consequently, leave will not be given to the applicant to bring proceedings out of time against the third, fourth and fifth respondents.
Arguable case: the first, second, sixth, seventh, eighth and ninth respondents
The seventh respondent has filed a submitting appearance and has not otherwise involved himself in the proceedings. However, submissions have been made by the first, second, sixth, eighth and ninth respondents whom I will describe as the “Commonwealth respondents”. The evidence reveals that the position of the seventh respondent, as an employee of the SSAT and co-worker with the sixth, eighth and ninth respondents is sufficiently similar to theirs that the Commonwealth respondents’ submissions can be taken to be relevant to the seventh respondent’s situation as well.
The reasons for the Commission’s decision to terminate the applicant’s complaint are found in its letter to her dated 19 January 2004, which is part of Exhibit “A”. In that letter, the Commission records that the applicant had been employed by the SSAT from May 1992 to October 1997. The relevant parts of the complaint made by the applicant to the Tribunal in her letter of 16 September 2003, part of Exhibit “A”, are summarised in the submissions filed by the Commonwealth respondents in the following terms:
a. In 1995 a complaint of sexual harassment was made by the applicant against the seventh respondent, although it was never made formally …
b. The complaint was made to the sixth respondent. The complaint related to her being rostered to go on a circuit with the seventh respondent by a person who is not named as a respondent. The applicant was also concerned about the seventh respondent “playing footsies” under a hearing table. She stated that she had a meeting with the sixth and seventh respondents which lasted about 2 minutes.
c. She believed that after that discussion, the workplace became hostile towards her and she made further complaints about other employees, none of whom are respondents in these proceedings.
d. In late 1995, she took sick leave due to the stress at her work, but was rung up by the sixth respondent on several occasions. She alleges that the sixth respondent asked her what medication she was on when she returned to work and asked to listen in on her medical consultations.
e. She was informed by another employee that the sixth and ninth respondents had begun looking for a replacement for her while she was on sick leave.
f. She was advised by another employee that the sixth respondent had stated that in her opinion the applicant was clinically paranoid or that she had a bipolar disorder.
g. She was not reappointed to the SSAT in 1997 which she alleges was victimisation as a result of the complaint she made about the seventh respondent or as a result of imputing her with a disability.
The above summary of the applicant’s allegations demonstrates that the relevant events occurred between 1994 and 1997.
The applicant alleges in her application that one or all of the Commonwealth respondents and the seventh respondent committed unlawful discrimination, harassment or victimisation against her:
a)contrary to some or all of the following provisions of the Disability Discrimination Act 1992 (Cth):
i)s.15(2)(a), (b), (d) – discrimination in employment;
ii)s.29 – discrimination in the administration of Commonwealth laws and programs;
iii)s.42(2)(a), (b), (c), (f), (g) – victimisation;
iv)s.43 – incitement of unlawful acts;
v)s.122 – involvement in unlawful acts; and
b)contrary to some or all of the following provisions of the Sex Discrimination Act 1984 (Cth):
i)s.6(1) – discrimination on the ground of marital status;
ii)s.14(2)(a)(b)(d) – discrimination in employment;
iii)s.26 – discrimination in the administration of Commonwealth laws and programs;
iv)s.28B(1), (2), (6) – sexual harassment in employment;
v)s.28L – sexual harassment in the administration of Commonwealth laws and programs;
vi)s.94(2)(a), (b), (c), (f), (g) – victimisation;
vii)s.105 – involvement in unlawful acts;
viii)s.106 – vicarious liability.
The applicant has presented her case in a disorganised fashion and in a manner which makes it difficult to extract the strands of evidence which may support her allegations.
Relevant legislation
Disability discrimination is defined in s.5(1) of the Disability Discrimination Act in the following terms:
For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if, because of the aggrieved person’s disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.
and, by virtue of s.4(1) includes a disability which is imputed to a person.
Sex discrimination is defined in s.5(1) and (2) of the Sex Discrimination Act in the following terms:
(1) For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the sex of the aggrieved person if, by reason of:
(a) the sex of the aggrieved person;
(b) a characteristic that appertains generally to persons of the sex of the aggrieved person; or
(c) a characteristic that is generally imputed to persons of the sex of the aggrieved person;
the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of the opposite sex.
…
(2) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the sex of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved person.
The meaning of “sexual harassment” is defined in s.28A of the Sex Discrimination Act in the following terms:
(1) For the purposes of this Division, a person sexually harasses another person (the person harassed) if:
(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
(b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed;
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated.
(2) In this section:
"conduct of a sexual nature" includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.
The meaning of “victimisation” for the purposes of the Disability Discrimination Act is set out in s.42(2) of that Act relevantly in the following terms:
For the purposes of subsection (1), a person is taken to commit an act of victimisation against another person if the first-mentioned person subjects, or threatens to subject, the other person to any detriment on the ground that the other person:
(a) has made, or proposes to make, a complaint under this Act or the Human Rights and Equal Opportunity Commission Act 1986 ; or
(b) has brought, or proposes to bring, proceedings under this Act or the Human Rights and Equal Opportunity Commission Act 1986 against any person; or
(c) has given, or proposes to give, any information, or has produced, or proposes to produce, any documents to a person exercising or performing any power or function under this Act or the Human Rights and Equal Opportunity Commission Act 1986 ; or
(d) …
(e) …
(f) has reasonably asserted, or proposes to assert, any rights of the person or the rights of any other person under this Act or the Human Rights and Equal Opportunity Commission Act 1986 ; or
(g) has made an allegation that a person has done an act that is unlawful by reason of a provision of this Part;
or on the ground that the first-mentioned person believes that the other person has done, or proposes to do, an act or thing referred to in any of paragraphs (a) to (g) (inclusive).
The meaning of “victimisation” for the purposes of the Sex Discrimination Act is set out in s.94(2) of that Act and relevantly is in terms identical to those of s.42(2) of the Disability Discrimination Act.
Sex discrimination
The applicant’s claims of sex discrimination are based on allegations that she was perceived to have been a single career woman rather than as a woman who wished to marry and have children. For instance:
a) “I am very distressed at being treated as though I do not want or expect to marry and have children, when in fact I have always held these aspirations …” (para.39, affidavit affirmed 14 November 2006.)
b)[I have been] “Treated as though I have no aspirations or expectations of marriage and children, as though I will always be single and childless, in the eyes of colleagues at work, and in the eyes of friends, relatives and the community.” (para.82, affidavit affirmed 12 March 2007).
In my view, the allegation of sex discrimination is not sustainable. The applicant has failed to show, even on an arguable basis, that she was characterised or perceived in the alleged manner by any of the Commonwealth respondents or the seventh respondent. Her allegation is based on a conclusion drawn by her from the conduct of others which, in my view, simply cannot be drawn. Moreover, she has not shown on an arguable basis that any such perception of her led to conduct contrary to s.5 of the Sex Discrimination Act. In my view, this allegation is far-fetched.
Sexual harassment
Similarly far-fetched is the allegation of sexual harassment. In this regard the applicant says:
a)“In mid-1995 … I became concerned at some of the conduct of a handful of male members. On one occasion, Terry Carney, started winking at me in a hearing. David Dobell almost leered at me as I walked past him in the SSAT library, Ken Smithers started tapping my feet under a hearing room table, and Claudio Marzilli made odd, repeated inquiries of me as to how I was enjoying the hot and steamy weather. David Williams’ behaviour became odd in a hearing in Newcastle …” (para.180, affidavit affirmed 14 November 2006);
b)“At an office drinks occasion after work one afternoon, as Annette [O’Neill] and I stood in a circle of people, I saw Annette prominently placing her tongue in her cheek in a rather odd manner” (para.182, affidavit affirmed 14 November 2006);
c)“I didn't think that Annette had been being crude or suggestive in her behaviour, and, had I understood her conduct to have been suggestive, I would definitely have complained. In mid 1996, one afternoon before a hearing, I noticed from the corner of my eye Julian Millar placing a pen to his mouth. Again, I did not understand this to be being done intentionally. It did not ever occur again. Had I thought that he had done this deliberately, I would definitely have complained.” (para.184, affidavit affirmed 14 November 2006); and
d)on one occasion “I noticed Rod Newett sticking a banana in a tub of yoghurt in a really odd, sort of conspicuous manner”. The applicant considered the possibility that this may have been conduct suggesting oral sex (para.170, affidavit affirmed 14 November 2006).
The applicant has failed to demonstrate on an arguable basis that the conduct in question was of a sexual nature or that it was conducted in relation to her. Again, the applicant has drawn conclusions which were not reasonably open to be drawn. A handful of incidents spread over a number of years which to a reasonable observer would be of no significance do not amount to harassment. Even the applicant appears not to have placed great significance on these alleged events at the times they are said to have occurred. However, even accepting for the purposes of the application to commence proceedings out of time that the events did occur, a reasonable person would not, having regard to the circumstances deposed to, have anticipated that the applicant would have been offended, humiliated or intimidated by such conduct.
In my view it is not arguable that the Commonwealth respondents or the seventh respondent have breached the Sex Discrimination Act as alleged.
Disability discrimination in employment
The applicant’s claim that she has been subjected to disability discrimination rests on the assertion that she has been imputed with mental illness. She alleges that this imputation can be seen in conduct such as:
a)The events leading up to the 1 December 1995 members’ meeting. (paras.212 to 215 of the affidavit of 14 November 2006).
b)• Stephen Hodges’s “odd conduct in hearings in 1994 and 1995 … his conduct at the airport in 1997 … ”
• Lyn Rogers’s aggression in hearings in late 1997.
• “Claire's comment that she thought I had died when I returned from holiday in 1997.”
•Administering involuntary treatments since 1994 to hinder normal cognitive functioning.
• “Russell Matthews’[s] letter of 23 December 2003 and the mistakes as to the number of times I was appointed to the SSAT … ; the failure to explain Annette O'Neill's comments made about my health and address … ; his lies about being present at meetings I had with Annette O'Neill, and his failure to contact Stephen Hodges or Annette O'Neill to inquire about my complaint of April 1995.”
•“Jenny D’Arcy's advice in 1997 to take a look at my file after asking who my next employer was.”
•“Annette O'Neill poking her tongue in her cheek in 1995.”
•“Julian Millar's pen conduct in 1996. His conduct in materialising in my vicinity at the Elizabeth Street traffic lights in 1998 and last week, and any other conduct subsequent to 1997 and inciting others to engage in this conduct.”
(para.71, affidavit affirmed 12 March 2007).
c)• “Annette [saying] to me in December 1995: ‘You should see a psychiatrist now, not a psychologist.’ She also said: ‘Why don’t you talk to Michael Pasfield? (a psychiatrist and part-time member). He may know someone he can refer you to. I am a social worker. I have worked in a psychiatric hospital with mentally ill patients. I know what I’m talking about.”
•somebody saying to the applicant during the course of a conversation, “Don’t be paranoid”, which she appears to suggest indicates that the person in question was actually suggesting she was paranoid.
•Alan Durie saying to the applicant in early January 1996, “Annette told me that you were clinically paranoid” and “Annette and Amanda are not expecting you to return. Amanda has already started looking for your replacement”.
(paras.225, 245, 257, affidavit affirmed 14 November 2006).
The applicant goes on to imply that her failure to be reappointed to the SSAT in 1997 was a product of the disability she says she did not have but which was imputed to her:
a)“My being rated unsuitable for reappointment in 1997 and alleged but unsubstantiated communication problems, as well as the complete absence of any management review, counselling or appraisal with, or to me, on the subject at any stage during my SSAT employment.” (para.71, affidavit affirmed 12 March 2007).
b)When the applicant was not reappointed to the SSAT in 1997 she rang Julian Gardner, the National Convenor, to find out why she had been rated unsuitable and he made an oblique remark about her “behaviour” and refused to say what he was referring to (para.21, affidavit affirmed 14 November 2006).
c)The applicant said that it was clear by the wall of silence and the other evidence that she was treated as though she had a disability. (para.22, affidavit affirmed 14 November 2006).
d)No one ever spoke to the applicant about her work performance, behaviour or suitability as a member. She asserts that the “unsuitable” rating should not have been given to a member who had been rated as suitable on three consecutive prior occasions and who had not been given any information or counselling by management (para.30, affidavit affirmed 14 November 2006).
However, with regard to these factual assertions, it is to be noted that no allegation of discrimination contrary to s.15(1) of the Disability Discrimination Act 1992 is made in the application in these proceedings.
The applicant’s case is characterised by a minute analysis of small details of personal interactions with others over a period greater than ten years. Only the period during which she was employed at the SSAT has any relevance to these proceedings. The applicant’s affidavit evidence suggests that her colleagues at the SSAT harboured doubts as to her mental health and as to her viability as an SSAT employee. The evidence indicates that the applicant may have been suffering mental health problems at some point or points during her SSAT employment: vide the letter from Dr McMurdo to the applicant dated 26 February 2004 (part of annexure B to the applicant’s affidavit affirmed 6 February 2007, p.104) and the report of Dr Moore dated 12 November 2001 (annexure E to the applicant’s affidavit affirmed 4 June 2007, p.55).
A review of the evidence concerning the comments and actions by third parties, including the distillation of such claims in para.82 of the applicant’s affidavit affirmed 12 March 2007, does not disclose conduct in breach of s.15(2) of the Disability Discrimination Act. While a disability may have been imputed to or perceived in the applicant, she has not demonstrated even on an arguable basis that she was subjected to any change in the terms of her employment, to any denial of or limitation in access to promotion, training, transfers or other benefits associated with employment, to being dismissed or to being subjected to an identifiable detriment.
Disability discrimination in the provision of Commonwealth programs
The applicant alleges that as a result of the imputation to her of a disability she has been subject to what she describes as a “disability services programme”. This allegation is unusual in that the applicant alleges that unwanted programs are being provided to her because of her imputed disability, not that she is being denied access to government programs.
For instance, the applicant asserts in para.243 of her affidavit affirmed 14 November 2006 that employment disadvantages which she says she suffered
… appear also to originate with the SSAT and Annette O'Neill, from 1994 onwards, if not before 1994. I contend that whenever I was first placed on a Disability Services Act programme, I have been unlawfully discriminated against in the terms and conditions of employment, by suffering detriments in employment and by the denial of opportunities for promotion and other benefits associated with employment. The extended unemployment I have suffered is a part of the unlawful discrimination associated with the implementation of a Commonwealth law and programme - the Disability Services Act 1996 (Cth).
The applicant reasons that certain events have been caused by this program without demonstrating that the program existed or that it was linked with the opinions or actions of her SSAT colleagues, the SSAT or the Commonwealth. The applicant alleges that there are such links but her case does not go beyond more assertion. It is not sufficient to point to particular events and by induction to conclude that the postulated program is their cause or source. The applicant’s allegations that a Department of State of the Commonwealth would undertake secret diagnostic and assessment services of an individual and then make secret employment arrangements for that person, and that the SSAT or any of its staff or members would be complicit in this, are not credible in the absence of cogent proof. In order to make out such allegations, even on an arguable basis, in circumstances where there are many other and more probable explanations for the events in question, the applicant needs to do more than she has done in these proceedings. In my view, the applicant does not have an arguable case that the Commonwealth respondents or the seventh respondent were associated with the alleged “disability services programme” or that they discriminated against her in this connection.
Disability discrimination in the provision of services
Similarly to her disability services allegations, the applicant alleges that, by reason of the imputation to her of mental illness, she has been given treatment without her consent and without her knowledge. Although the applicant alleges that this treatment did not start in earnest until 2003, she speculates that there may have been some treatment of her prior to that.
The applicant says:
… In hindsight it is clear that the genesis of the 4 April 2003 treatment was the SSAT. (para.66, affidavit affirmed 6 February 2007).
The applicant submits that she was administered involuntary treatment during her SSAT employment (para.10, affidavit affirmed 26 February 2007). She identified one event during an SSAT retreat in Lawson in July 1994 and an occasion when she was working on a legal paper in 1994.
The applicant submitted that the administration of medical treatment interfered with her normal cognitive functioning and that this would have been an obstacle to her dealing effectively with the SSAT in 1995. (para.16, affidavit affirmed 26 February 2007):
I can remember in January 1994 experiencing a really weird problem concentrating on my work as I sat at my desk doing preparation for hearings … I had never before in my life experienced such a problem. That is all I can recall. I had no idea that this may have been due to the administration of medical treatment. (para.12, affidavit affirmed 12 March 2007).
…
It is obvious, however, that someone has consented to treatment being administered to me. Such consent must have been obtained under the Guardianship Act by a relative. I have never given consent to treatment. (para.20, affidavit affirmed 12 March 2007).
The applicant speculates that consent to such treatment was given by a guardian appointed pursuant to the Guardianship Act 1987 (NSW) but she is not able to say who the guardian is or when he or she was appointed. The applicant points to occasions when she was unable to think as quickly or as clearly as usual and concludes that these indicate the existence of the alleged treatment. However, those events are just as consistent with tiredness and may have other causes as well. The suggestion of a secret course of treatment is not credible in circumstances where nothing more than assertion has been advanced in support of it. As in the context of the allegation of “disability services programme”, in order to make out this allegation, in circumstances where there are other and more probable explanations for the events in question, the applicant needs to do more than she has done. I conclude that the applicant does not have an arguable case that the Commonwealth respondents or the seventh respondent were associated with any involuntary medical treatment of her or that they discriminated against her on this account.
Victimisation – Sex Discrimination Act, Disability Discrimination Act
The applicant alleges that she was victimised because she made a complaint against the seventh respondent. She alleges that SSAT employees have victimised her, for instance by placing information on her personnel file as part of a course of conduct which was designed to make it difficult or impossible for her to get suitable and appropriately remunerative employment after she left the SSAT. In order to demonstrate an arguable case she needs to point to a detriment or a threat of a detriment to her which was arguably caused by her complaining about or taking action in respect of discriminatory conduct: s.94 of the Sex Discrimination Act and s.42 of the Disability Discrimination Act or either of them. She has said:
a)the victimisation followed her April 1995 meeting with Annette O'Neill and Stephen Hodges and her August 1995 meeting with Ron Kessels. (para.42, affidavit affirmed 12 March 2007);
b)“Whatever did happen was designed to result in my leaving the SSAT, as indicated not only by Annette O'Neill's suggestions to me to do so in July 1995 … but also by Annette and Amanda's looking for my replacement while I was on sick leave for three weeks in 1995 (December).” (para.45, affidavit affirmed 12 March 2007);
c)Amanda MacDonald circulated lies about her and her health to others in the SSAT since 1995 (para.49, affidavit affirmed 12 March 2007);
d)“The respondents to this complaint are committing acts of victimisation by refusing to disclose the basis in law which they have for treating me as though I have a disability and as though I am a person in need of a guardian. No medico-legal report has been filed and served. The refusal to inform me of what is happening and of the basis at law for administering medical treatment is victimisation, as well as unlawfully discriminatory under the grounds of the DDA.” (para.73, affidavit affirmed 12 March 2007);
e)“Stephen Hodges has committed acts of victimisation by circulating lies … to SSAT employees and to my subsequent employers, behaving towards me as though I have a psychiatric disability.” (para.79, affidavit affirmed 12 March 2007);
f)“I assumed that the odd conduct that a handful of male legal members in 1995 after the meeting with Annette O'Neill was his
[i.e. Stephen Hodges] doing by way of retaliation.” (para.83, affidavit affirmed 12 March 2007); andg)“I now believe that false and unreliable information has probably been placed on my personnel file by SSAT colleagues … Whatever has been placed on any 'file' of mine is the result of victimisation for complaining about Stephen Hodges … ” (para.67, affidavit affirmed 6 February 2007).
These allegations are no more than speculation and assertion and are unsupported by evidence. No arguable case is made out in respect of them.
Conclusion – arguable case against the first, second, sixth, seventh, eighth and ninth respondents
I am of the view that the applicant’s allegations are based on far-fetched conclusions drawn from events and circumstances which could not, on the evidence presented by the applicant, arguably support those conclusions.
I find that the applicant does not have an arguable case against the first, second, sixth, seventh, eighth or ninth respondents based on the matters alleged in her application. In this regard it must be kept in mind that the application before the Court is one seeking leave to bring the application out of time. It is not an application for summary dismissal such as was considered in Rana v University of South Australia [2004] FCA 559.
Additionally, although the eighth respondent has not brought a formal application to be removed from the proceedings, as was the case with the third, fourth and fifth respondents, in the Commonwealth respondents’ written submissions it is argued that the eighth respondent was not named in the notice of termination. I conclude that this submission is correct based on the way the Notice of Termination was expressed, as discussed above at [25]. Consequently, the Court has no jurisdiction to entertain the complaint against the eighth respondent and for this reason too, the applicant has no arguable case against him.
Explanation for delay
As leave will not be granted to the applicant to bring the proceedings out of time, her explanations for the delay in bringing these proceedings need not be considered. However, the parties’ submissions on this question should be noted.
The Commonwealth respondents submit that no satisfactory explanation has been provided by the applicant as to why there were no formal complaints lodged by her with the SSAT, why she took some six years to complain to HREOC following the termination of her appointment and why it took eight years after the occurrence of the initial events the subject of the complaint to apply to HREOC.
Although this issue does not directly relate to the delay in commencing these proceedings it is nevertheless a matter of some importance overall.
As to the delay in the making of a complaint to the Commission, it must be noted that after the termination of her appointment with the SSAT, the applicant worked in positions of responsibility with the Refugee Review Tribunal from at least late 1998 (para.87, affidavit affirmed 6 February 2007) until 2000 or possibly 2001 (paras.30 and 39, affidavit affirmed 4 June 2007) and with the Macarthur Legal Centre from about June 2001 to 29 November 2001 (para.28, affidavit affirmed 6 February 2007). It is also important to note that the applicant’s claim is that any disability discrimination to which she was subject was based, not upon a real disability arising out of psychiatric impairment, but upon a disability which was imputed to her in the absence of such an impairment. The corollary of this position is that the applicant does not allege that the delays involved in these proceedings were the consequence of any such disability. She says she has no such disability (see para.15, affidavit affirmed 6 November 2006).
Noting these facts, the applicant has failed to provide an adequate explanation for the significant delay in bringing her complaint to the Commission. That delay has the consequence that these proceedings have been brought well after the occurrence of the events in question.
The applicant has explained the subsequent and additional delay in the bringing of these proceedings as the consequence of her ADJR Act proceedings which led to the judgment of Driver FM on 30 October 2006. It is apparent that the applicant was not resting on her rights and that she wished to obtain a resolution of her claims in her favour. Her judicial review proceedings, while unsuccessful except to the extent that the Commission consented to orders to reconsider the matters which it had not originally entertained, nevertheless had the merit of keeping her litigated claims together in one set of proceedings in this Court.
I also note that the progress of the judicial review proceedings was delayed by a successful appeal made by the applicant to the Full Court of the Federal Court from an interlocutory decision of Driver FM.
I am of the view that the applicant’s explanation for the delay in commencing these proceedings is an acceptable one. Even so, on its own, it would not be sufficient to justify an exercise of the Court’s discretion in her favour, even had she demonstrated an arguable case.
Prejudice to the first, second, sixth, seventh, eighth and ninth respondents if proceedings brought out of time
As leave will not be granted to the applicant to bring the proceedings out of time, prejudice need not be considered. Even so, the submissions of the Commonwealth respondents on this question should be noted.
The Commonwealth respondents submit that were the Court to grant leave to commence out of time they would be prejudiced by the delay in commencing the proceedings. In this regard it should be kept in mind that the Tribunal’s termination of the applicant’s complaint on 19 January 2004 was on the basis that it had been lodged more than 12 months after the alleged unlawful discrimination took place. That is to say, the prejudice which is alleged by the Commonwealth respondents relates not only to the delay between the termination of the complaint and the commencement of these proceedings, but also to the delay in bringing the original complaint to the Commission.
The Commission wrote to the SSAT seeking its comments on the applicant’s complaint to it. The SSAT’s comments were referred to in the Commission’s reasons for decision and were, to paraphrase:
a)the Director of the SSAT had no knowledge of the applicant making a complaint about the conduct of the seventh respondent and could find no record of such a complaint in the SSAT records;
b)while the Director was Acting Registrar in 1994/1995 he attended a meeting with the applicant and the sixth respondent at which the applicant suggested that other SSAT members had made some improper remarks which had a sexual connotation. When asked to identify what some of those remarks were, the applicant said that during a break in proceedings one of the Members asked her if she would like a bite of an apple. The Director stated that he could not recall the applicant identifying anything more than this. He also stated that he did not discuss with the applicant or the sixth respondent on any other occasion anything either directly or indirectly associated with sexual harassment;
c)the Director stated that he never observed the applicant receiving treatment or experiencing conditions that were different from other Members;
f)the Director stated that he recalled on one occasion the sixth respondent mentioning to him that she had concerns about the applicant’s mental health and emotional state and thought that the applicant might benefit from professional assistance or some leave but apart from this he did not recall anyone discussing with him a psychiatric diagnosis in relation to the applicant;
g)the applicant ceased to be an SSAT Member when her term expired on 31 October 1997 and although she was not re-appointed, such an appointment is a government appointment and the selection panel’s report is a “Cabinet-in-Confidence” document.
The SSAT Director submitted that the Commission should not proceed with the inquiry for the following reasons:
· [The applicant] has made her allegations more than six years after her appointment term at the SSAT finished.
· The SSAT does not have any record of [the applicant] making a complaint about the conduct of another member.
· When I was the acting Registrar in 1995–1996, [the applicant] did not call upon me to respond to any complaint about another member’s conduct and Ms O’Neill did not inform me that [the applicant] had made any such complaint for her to address, except for that meeting to which I have referred.
· Many of the members that she has identified as having significant role in alleged practices of discrimination are no longer with the SSAT having departed a number of years ago.
· Much of what [the applicant] has alleged relies upon her recollection of conversations she allegedly had when she was with the tribunal. To verify whether such statements were actually made after so many years have passed is very problematic. In addition, many of the alleged statements are interpreted by her to have particular meanings which the speaker may or may not have intended.
· For these reasons I believe that HREOC will not be able to properly and fairly conduct an inquiry into the matters which [the applicant] has raised so many years after her departure from the SSAT. (Exhibit A)
The Commonwealth respondents submit that even had the applicant commenced these proceedings within 28 days of the Notice of Termination, they would nevertheless be severely prejudiced in their ability to defend the application properly, pointing out that the events and conversations in question occurred some ten to twelve years ago. As the Commonwealth respondents submitted:
As has been noted by the Director of the SSAT, and conceded by the applicant, there had been no formal complaint made by the applicant to her employer in relation to the matters she now seeks to raise and there are no records which can provide any assistance in this regard. Therefore, the Commonwealth respondents must rely on the memories of persons, most of whom no longer work for the Commonwealth, to recount events and conversations which are some 10-12 years old in order to ascertain whether what the applicant alleges may or may not have occurred. (para.23, written submissions)
In my view even if the applicant had an arguable case against them, the ability of the Commonwealth respondents and the seventh respondent to meet her allegations is so prejudiced by her delay in making and prosecuting her complaint that I would not consider it fair and equitable to grant her application to bring these proceedings out of time: Vel v Human Rights & Equal Opportunity Commission (1997) 47 ALD 219.
Application to join NSW Guardianship Tribunal
Similar considerations apply in relation to the interim application by the applicant to join the NSW Guardianship Tribunal in the proceedings as apply to the allegations against the third, fourth, and fifth respondents.
In para.3 of her affidavit affirmed 6 February 2007 the applicant deposes that annexure “C” to that affidavit, which is a complaint to the Commission concerning the NSW Guardianship Tribunal, was provided in response to the Commission’s request to provide separate complaints as referred to at [10] above. On the information supplied to the Court it appears unlikely that this complaint against the Guardianship Tribunal was amongst the complaints which were referred to in the Commission’s letter of 9 January 2004 as not being entertained by it. Whatever may be the case in this regard, a consideration of the Notice of Termination dated 19 January 2004 and the reasons for that decision demonstrates that the applicant’s complaint against the Guardianship Tribunal did not form part of the complaint which was terminated by the Commission’s notice dated 19 January 2004.
Although the applicant has not particularised her allegations against the Guardianship Tribunal, given that such complaints as she might have against it did not form part of the complaint terminated on 19 January 2004 this Court has no jurisdiction in these proceedings to hear and determine them. Consequently, the applicant’s interim application to join the NSW Guardianship Tribunal in these proceedings will be refused.
Suppression of name
The third prayer for interim relief contained in the applicant’s application seeks an order that the publication of her name be suppressed under s.61 of the Federal Magistrates Act 1999. That section empowers the Court to make such an order if it appears to be necessary in order to prevent prejudice to, amongst other things, the administration of justice. The applicant has led no evidence to support this application or to show why it would be appropriate in the circumstances to make such an order.
Notwithstanding consideration to the contrary, in the circumstances of this case, I conclude there is no option but to make the order sought. These proceedings are unavoidably related to the proceedings determined by Driver FM previously referred to. The applicant was identified in those proceedings as “L” because, on appeal from his Honour’s initial, interim decision in those proceedings, the Full Court of the Federal Court determined that the applicant’s name should not be published: L v Human Rights & Equal Opportunity Commission [2006] FCAFC 114. Were the order sought not to be made in these proceedings, the order made by the Full Court of the Federal Court would be subverted. In such circumstances, I consider that the interests of the administration of justice require that the applicant’s name not be published.
Vexatious proceedings
The Commonwealth respondents submitted that the bringing of the proceedings against the third, fourth, sixth and eighth respondents was vexatious because of other proceedings she had brought against them. Four sets of proceedings were relied upon in this regard.
In the Federal Court points of claim which are Exhibit 1, the applicant alleges, relevantly, against the third respondent in these proceedings and against “CRS Australia”:
The applicant is … being provided with diagnostic and assessment services under the Disability Services Act 1986 (Cth) (the DSA). This is occurring under s.20(3) & (5) of the DSA. The applicant does not consent. (para.1)
It is apparent that the applicant has made the same allegation in these proceedings against, amongst others, the third and fourth respondents. As to the latter, I am of the view that there is no practical or real distinction to be drawn between “CRS Australia” in the Federal Court proceedings and “The General Manager, CRS Australia” in these proceedings.
I note that the Federal Court proceedings were transferred to this Court and became the proceedings from which Exhibit 2 comes.
The allegations contained in the additional points of claim which are Exhibit 2 make against the sixth and eighth respondents in these proceedings allegations which have been repeated against them in these proceedings. Those amended points of claim also allege that the first and second respondents in these proceedings are vicariously liable for the alleged conduct of the sixth and eighth respondents. Although there is not a complete identity between the allegations made in these proceedings and those other proceedings, there is sufficient similarity to conclude that the applicant is seeking to make the same claims more than once.
The allegations made in paras.11, 12, 16 and 18 of the application which is Exhibit 4 demonstrate the same characteristic but in relation to the first, third, fourth and sixth respondents in these proceedings. As the allegations made in the application which is Exhibit 4 were made after the commencement of these proceedings, to the extent that there is vexatiousness in the applicant’s litigation strategy, such vexatiousness would only apply to the subsequent proceedings and not to these proceedings. I also note that the proceedings in which the affidavit which is Exhibit 3 was filed were commenced after these proceedings.
However, the proceedings from which Exhibits 1 and 2 were taken were commenced before these proceedings. Consequently, in relation to the matters raised in the points of claim which are Exhibit 1 and in the additional points of claim which are Exhibit 2, to the extent that there is an overlap with allegations made in these proceedings, the allegations made against the first, second, third, fourth, sixth and eighth respondents in these proceedings should be considered to be vexatious.
Conclusion
The Court has no jurisdiction to entertain the claims brought against the third, fourth, fifth and eighth respondents. I find that the applicant does not have an arguable case against the first, second, sixth, seventh, eighth and ninth respondents. Consequently, leave will not be granted to the applicant to commence these proceedings out of time and the proceedings will be dismissed.
As to the application to join the New South Wales Guardianship Tribunal in these proceedings, the Court has no jurisdiction in these proceedings to entertain the complaint sought to be ventilated and leave will be refused.
For the reasons expressed above, I am of the view that it is in the interests of the administration of justice that the publication of the applicant’s name be forbidden.
I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 22 May 2008
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