Li v Allen
[2022] FedCFamC2G 862
Federal Circuit and Family Court of Australia
(DIVISION 2)
Li v Allen [2022] FedCFamC2G 862
File number(s): MLG 2410 of 2021 Judgment of: HER HONOUR JUDGE C.E. KIRTON KC Date of judgment: 20 October 2022 Catchwords: HUMAN RIGHTS – Australian Human Rights Commission Act 1986 (Cth) – application for leave to commence proceeding otherwise barred by operation of s.46PO(3A) of the Australian Human Rights Commission Act 1986 (Cth) – racial discrimination – where complaint to Australian Human Rights Commission terminated without inquiry pursuant to ss.46PF(1)(b) and 46PH(1)(b) of Australian Human Rights Commission Act 1986 (Cth) on the basis it was lodged more than 12 months after the alleged acts, omissions or practices took place and for lacking merit – application not served upon Respondent pursuant to r.6.06 (1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) – application dismissed Legislation: Australian Human Rights Commission Act 1986 (Cth) ss.46PF, 46PH, 46PO.
Racial Discrimination Act 1975 (Cth) s.9.
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r.6.06.
Cases cited: James v WorkPower Inc [2018] FCA 2083 Division: Division 2 General Federal Law Number of paragraphs: 40 Date of last submission: 14 October 2022 Date of hearing: 14 October 2022 Place: Melbourne The Applicant The Applicant appeared in person with the assistance of an Interpreter The Respondent: There was no appearance by the Respondent ORDERS
MLG 2410 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: WENRUI LI
Applicant
AND: BEVERLY ALLEN
Respondent
order made by:
HER HONOUR JUDGE C.E. KIRTON KC
DATE OF ORDER:
20 October 2022
THE COURT ORDERS THAT:
1.Leave to the Applicant to make an application to this Court pursuant to s.46PO(1) of the Australian Human Rights Commission Act 1986 (Cth) is refused.
2.The Application filed by the Applicant on 23 September 2021 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
HER HONOUR JUDGE C.E. KIRTON KC:
Introduction
This is an application pursuant to s.46PO(3A) of the Australian Human Rights Commission Act 1986 (Cth) (Human RightsCommissionAct) for leave to make an application under s.46PO(1) of the Human Rights Commission Act to the Federal Circuit and Family Court of Australia (Division 2) to allege unlawful discrimination.
The Applicant, Mr Wenrui Li (Applicant) alleges that Ms Beverly Allen (Respondent) failed to pay the Applicant for certain items which he sold to the Respondent, and that the Respondent thereby treated him unfairly because of his Chinese ethnicity. The Applicant alleges that the Respondent’s failure to pay the Applicant for these goods constituted racial discrimination pursuant to the Racial Discrimination Act 1975 (Cth) (Racial Discrimination Act).
To date, the Applicant has not properly served the Respondent with the Application filed on 23 September 2021 (Application) or the Applicant’s Affidavit in support of the Application, filed the same day (23 September 2021 Affidavit). The Affidavit of Service filed by the Applicant on 8 November 2021 (Affidavit of Service) states that the Applicant served the Application and the 23 September 2021 Affidavit by sending these documents to an email address on 29 September 2021. The Applicant is therefore in default of r.6.06(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (2021 Rules) by not serving the Respondent with the Application by hand.
issues to be determined
The following issues require determination:
(a)Whether the proceeding should be further adjourned so that the Applicant may personally serve the Respondent with the Application in accordance with r.6.06(1) of the 2021 Rules; and
(b)Whether to determine the Applicant’s application for leave pursuant to s.46PO(3A) of the Human Rights Commission Act to make an application under s.46PO(1) of the Human Rights Commission Act, in the absence of the Respondent.
SYNOPSIS
I have determined:
(a)That the proceeding should not be further adjourned so that Applicant may personally serve the Respondent with the Application in accordance with r.6.06(1) of the 2021 Rules;
(b)The Applicant’s application for leave pursuant to s.46PO(3A) of the Human Rights Commission Act in the absence of the Respondent; and
(c)To refuse the application for leave pursuant to s.46PO(3A) of the Human Rights Commission Act and to dismiss the Application.
Background
The Applicant immigrated to Australia from China in 2015 and became a tutor of Chinese calligraphy at the University of the Third Age in Frankston, Victoria (University of the Third Age) that year. At that time, the Respondent was his student.
During the calligraphy course in 2015 the Respondent asked the Applicant to make her four (4) calligraphy stamps with her name inscribed in characters on each stamp. The Applicant agreed to charge a discounted sum of $320 in total for the four (4) stamps, and the Applicant gave the four (4) stamps to the Respondent after making them from stone. The Respondent asked the Applicant to buy a calligraphy brush for her. The Respondent purchased a calligraphy brush for $18 and provided it to the Respondent. The Respondent also requested that the Applicant sell to her another student’s painting valued at $15, which he did. The Applicant also gave to the Respondent a calligraphy book valued at $40 and ink valued at $100. In total, the Applicant alleges that goods valued at $493 were given to the Respondent. The Respondent then stopped attending the Applicant’s classes and did not fully reimburse the Applicant for these items (Calligraphy Items). The Applicant alleges that the Respondent only paid $110 of the $493 outstanding for the Calligraphy Items and that the sum of $383 has remained outstanding since 2015.
In 2017, the Applicant met the Respondent who was attending another class at the University of the Third Age. The Respondent told the Applicant that her father had died in 2015, and that this was the reason that she had stopped attending the Applicant’s calligraphy classes. The Applicant alleges that in 2017, the Respondent refused to reimburse him for the balance owing for the Calligraphy Items and tried to negotiate down some of the prices for the Calligraphy Items which had been previously agreed between the Applicant and the Respondent in 2015.
Procedural History
Application to the Australian Human Rights Commission
On 15 May 2021, the Applicant made an application to the Australian Human Rights Commission (AHRC) alleging unlawful discrimination in breach of the Racial Discrimination Act by the Respondent (Complaint).
By a Notice of Termination issued pursuant to s.46PH(2) of the Human Rights Commission Act, dated 19 August 2021 (Notice of Termination), the AHRC terminated the Complaint without inquiry under ss.46PF(1)(b) and 46PH(1)(b) of the Human Rights Commission Act, on the grounds that: the Complaint was lodged more than 12 months after the alleged acts, omissions or practices took place;[1] and that the Complaint lacked merit.
[1] The alleged acts took place prior to the amendments to the Australian Human Rights Commission Act 1986 (Cth) in 2017, where the timeframe pursuant to s.46PH(1)(b) was amended to six (6) months.
Attachment A to the Notice of Termination provided the reasons for the decision to issue the Notice of Termination (Reasons for Decision). In summary the Reasons for Decision concluded that after reviewing the material received from the Applicant, the delegate of the President of the AHRC (Delegate) decided that the continuation of an inquiry was unwarranted due to the Complaint being made over five (5) years from the alleged discrimination. The Reasons for Decision stated as follows:
On the length of the lodgment delay, you submitted your complaint form to the Commission on 15 May 2021. This is at least five years and five months after the alleged discrimination by Ms Allen in 2015. In my view, this is a very significant delay in bringing the complaint forward.
On the potential impact of the lodgment delay, I consider there to be real risks through the passage of time that parties may no longer accurately recall events and/or that potentially useful information to support or refute the allegations may be lost or destroyed. I am concerned that your significant lodgment delay may prejudice the respondent and may adversely impact the Commission’s ability to conduct a fair inquiry.
On the reasons for your lodgment delay, you give the reason that Ms Allen disappeared from your class in 2015. In my view, this alone is not a sufficiently compelling reason to outweigh the delay and justify an inquiry into your complaint. It is also unclear why you did not attempt to pursue this matter or contact the Commission closer to the time of your interactions with Ms Allen and Frankston U3A in 2018.[2]
[2] Affidavit of the Applicant, filed 23 September 2021 (23 September 2021 Affidavit), Notice of Termination, Attachment A.
The Delegate also raised concern for the merits of the Complaint as follows:
On apparent merit, your complaint is being considered with reference to section 9 of the RDA [Racial Discrimination Act] (link here) which makes it unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race or ethnic origin, that has the purpose or effect of nullifying or impairing the complainant’s equal enjoyment or exercise of any human rights or fundamental freedom in economic, social or cultural life. I appreciate that you feel Ms Allen treated you unfairly. However, in my view, there is little, if any, information beyond your own assertions to support that her alleged conduct was based on your Chinese race or ethnic origin. As such, I have concerns about the apparent merit of your complaint.[3]
[3] 23 September 2021 Affidavit, Notice of Termination, Attachment A.
Application to the Court
On 23 September 2021 the Applicant filed the Application and the 23 September 2021 Affidavit. The 23 September 2021 Affidavit was not witnessed and was filed in accordance with the COVID-19 Special Measures (PD-COVID), FCFCOA Practice Direction, 7 September 2021 (COVID-19 Practice Direction). The Application was therefore filed with the Court within 60 days after the issue of the Notice of Termination, as required by s.46PO(2) of the Human Rights Commission Act. Further, the unlawful discrimination alleged in the Application arises from the same (or substantially the same) acts, omissions or practices that were the subject of the Complaint and the Notice of Termination, as required by s.46PO(3) of the Human Rights Commission Act.
In the Application the Applicant seeks final orders that the Respondent pay the Applicant the sum of $383 as follows:
1.pay balance $383 as the prices agreed by both sides at the beginning 2015 which include:
4 stamps times $80/each equal to $320
1 painting one student asked me help to sell $15
1 brush [the Respondent] asked me to buy for her $18
1 book [the Respondent] bought from me $40
1 ink [the Respondent] bought from me $100
Minus $110, [the Respondent] paid to me[4]
(As written)
[4] Application, filed 23 September 2021 (Application), Part A, Orders sought, [2].
In the Application the Applicant seeks further final orders that:
1.pay the cost of time occupied by asking help from society with this case. I saw Australia court used this way to calculate the amount should be paid for the time occupied.
2.Find a way that this kind case can be solved before the federal court since there are a lot of organizations can do something for the case[5]
(As written)
[5] Application, Part A, Orders sought, [2].
The Applicant seeks interim orders in the Application as follows:
1.if court wants to change the price above, please listen to both sides before the changes
2.try to find a price is lower but fair to both sides, not the price is lower but unfair to one side[6]
(As written)
[6] Application, Part A, Interlocutory, interim or procedural orders sought by applicants, [3].
The matter was initially listed for Directions on 21 July 2021 via Microsoft Teams. Due to the Applicant’s hearing difficulties, the Applicant was unable to communicate remotely with the Mandarin Interpreter. The matter was re-listed for Directions on 12 November 2021 via Microsoft Teams. To accommodate the Applicant’s limited English and hearing difficulties at the 12 November 2021 Directions Hearing, the Court arranged for a Mandarin Interpreter and also for Closed Captions to assist the Applicant.
On 8 November 2021 the Applicant filed the Affidavit of Service. The Applicant also filed a further Affidavit on 11 November 2021 (11 November 2021 Affidavit). The Affidavit of Service and the 11 November 2021 Affidavit were filed in accordance with the COVID-19 Practice Direction. The 11 November 2021 Affidavit repeated the allegations made in the 23 September 2021 Affidavit. The 11 November 2021 Affidavit also: attached email correspondence between the Applicant and the Respondent in 2017 and 2018 concerning the disputed outstanding moneys for the Calligraphy Items; and miscellaneous photos.
On 12 November 2021 the Applicant was unable to appear via Microsoft Teams at the Directions Hearing, notwithstanding the assistance of the Closed Captions and the Mandarin Interpreter. The 12 November 2021 Directions Hearing was therefore adjourned to a date to be fixed so that it could be heard in person, subject to the Court’s COVID-19 procedures and vaccination requirements.
The matter next came before me on 14 October 2022 for an in person Directions Hearing (Hearing). The Applicant appeared in person with the assistance of a Mandarin Interpreter. There was no appearance by the Respondent. During the Hearing the Applicant affirmed the contents of: the 23 September 2021 Affidavit; the Affidavit of Service; and the 11 November 2021 Affidavit. At the Hearing the Applicant told the Court that the Respondent had not communicated with him in relation to the Application or the 23 September 2021 Affidavit.
At the conclusion of the Hearing an Order was made that the application for leave to proceed pursuant to s.46PO(3A) of the Human Rights Commission Act be adjourned to a date to be fixed for Judgment.
RELEVANT LEGISLATION
This matter involves consideration of relevant provisions of the Human Rights Commission Act and the Racial Discrimination Act.
Racial Discrimination Act
The relevant provision of the Racial Discrimination Act is s.9(1) which provides as follows:
9 Racial discrimination to be unlawful
(1)It is 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.
Human Rights Commission Act
In this case the proceeding arises as a result of the AHRC terminating the Complaint under ss.46PF(1)(b) and 46PH(1)(b) of the Human Rights Commission Act. The Notice of Termination was issued under s.46PH(2) of the Human Rights Commission Act. In such circumstances an application may be made to the Court pursuant to s.46PO of the Human Rights Commission Act which provides as follows:
46PO Application to court if complaint is terminated
(1) If:
(a)a complaint has been terminated by the President under section 46PE, paragraph 46PF(1)(b) or section 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 Circuit and Family Court of Australia (Division 2), alleging unlawful discrimination by one or more of the respondents to the terminated complaint.
[…]
(3A) The application must not be made unless:
(a) the court concerned grants leave to make the application; or
(b) the complaint was terminated under paragraph 46PH(1)(h); or
(c) the complaint was terminated under paragraph 46PH(1B)(b).
(4)If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:
(a)an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;
(b)an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;
(c)an order requiring a respondent to employ or re-employ an applicant;
(d)an order requiring a respondent to pay an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;
(e)an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;
(f)an order declaring that it would be inappropriate for any further action to be taken in the matter.
[…]
The requirement for leave was inserted into the Act in 2017, with the relevant principles for determining whether leave should be granted pursuant to s.46PO(3A)(a) being considered by Mortimer J in James v WorkPower Inc [2018] FCA 2083, where Her Honour said (at [37] and [38]):
37I am satisfied that the text, context and purpose of the leave requirement in s 46PO(3A) suggests that it is appropriate for the Court to consider in determining whether to grant leave whether the claims made by an applicant are reasonably arguable, and are – at the least – not fanciful. This is consistent with the language used in s 46P(1A). I do not consider, read in context, that s 46PO(3A) sets the bar particularly high: the purpose of the provision is to act as a filter to preclude complaints whose merits are disproportionate to the time and resources likely to be consumed by dealing with them in a whole proceeding, but not to impose a barrier of any substantively greater level.
38 There may be a range of other permissible considerations including:
(1) the circumstances of the parties: how important the subject matter of the complaint is to both the applicant and any respondent, and to their respective circumstances;
(2)the nature of the allegations made (including whether for example they involved allegations of continuing discrimination, or how serious the discrimination is alleged to be);
(3)how thoroughly the Commission has dealt with the merits of the complaint. For example, it may be the Commission’s termination reasons thoroughly answer the alleged merits of a complaint and make it clear the complaint is not reasonably arguable;
(4)whether an applicant is delayed in complaining about the alleged discrimination and if so whether there are any explanations for that delay;
(5)whether a respondent has attempted to address the allegations in any way outside the Commission process and whether the allegations have been addressed or resolved in any way;
(6)the factual and legal complexity of the matters raised by the allegation of unlawful discrimination;
(7)whether the allegations raise issues of public importance, or of general application. The express power given to the President in s PH46(1)(H) does not exhaust the circumstances in which this factor might be considered; and
(8)other factors that are often considered in leave applications - such as prejudice to a party.
(Emphasis added)
2021 Rules – Service
The Application has not been properly served upon the Respondent. Rule 6.06(1) of the 2021 Rules provides:
6.06 When is service by hand required
(1)Service by hand is required for an application starting a proceeding or a subpoena requiring attendance of a person.
In the Affidavit of Service the Applicant states that he served the Respondent with the Application and the 23 September 2021 Affidavit by sending these documents to an email address on 29 September 2021. The Applicant has therefore not complied with r.6.06(1) of the 2021 Rules.
In the course of the proceeding, the Applicant has not made an application for substituted service or to dispense with service altogether. Neither the 23 September 2021 Affidavit nor the 11 November 2021 Affidavit refer to or make any explanation as to why the Respondent has not been served personally in accordance with r.6.06(1) of the 2021 Rules.
Consideration
I turn first to consider the merits of the Application. This is a complaint to which s.9 of the Racial Discrimination Act applies. In relation to the Applicant’s allegations of racial discrimination made in the Application, the 23 September 2021 Affidavit and the 11 November 2021 Affidavit, these are made on the basis of the Applicant’s assertions and without the support of objective evidence. There is no information in the documents filed beyond the Applicant’s own assertions that supports the Applicant’s claims that the Respondent’s alleged conduct was based upon the Applicant’s Chinese race or ethnic origin. At the Hearing the Applicant was invited to make further submissions as to the merits of the Application. The Applicant availed himself of this opportunity, however the Applicant made no submissions beyond those already contained in the documents filed by the Applicant.
It is evident from the documents filed that the Applicant alleges that in 2015 the Applicant and the Respondent agreed to the price of each of the Calligraphy Items. The Applicant now claims that he has been the subject of racial discrimination because the Respondent has allegedly refused to pay the balance of $363 for the Calligraphy Items. It is evident that this is a goods sold and delivered case and the Applicant is dissatisfied that the Respondent has not paid to him the sum of $363 which he believes that he is owed. I am therefore unable to conclude on the basis of the documents filed that there is any prospect of the claim for racial discrimination having any reasonable prospect of success.
I turn now to consider the issue of delay. I agree with the matters set out by the Delegate in the Reasons for Decision in relation to the Applicant’s delay. To these reasons I add that the alleged racial discrimination took place in 2015. The Complaint was lodged with the AHRC on 15 May 2021, some five and a half (5 ½) to six (6) years after the alleged racial discrimination. The Application was filed on 23 September 2021 and it has still not been served on the Respondent in accordance with r.6.06(1) of the 2021 Rules, some seven (7) years after the alleged racial discrimination took place in 2015.
One of the Applicant’s reasons for the delay is his lack of understanding of the Australian legal process and lack of knowledge about the AHRC. However the Applicant has made many complaints relating to the disputed payment for the Calligraphy Items. The Applicant’s complaints included making complaints to the following:[7]
(a)The person in charge of the University of the Third Age;
(b)The Police Station in Frankston;
(c)The Frankston Council;
(d)Peninsula Free Legal Assistance;
(e)The Victoria Dispute Settlement Centre;
(f)The MP for Frankston;
(g)The MP for Dunkley; and
(h)A Minister of the Victorian Government.
[7] Application, Part B, Grounds of Application, [4]; 3 September 2021 Affidavit, Part D, Evidence; 11 November 2021 Affidavit, Part D, Evidence.
Having regard to the Applicant’s extensive number of complaints relating the alleged outstanding payment of $363 for the Calligraphy Items, I am persuaded that the Applicant could have brought a claim earlier against the Respondent for goods sold and delivered in an appropriate forum, should he have chosen to do so.
Another of the Applicant’s reasons for the delay is his lack of English skills. However the Applicant’s lack of English skills has not prevented him from making many complaints to a variety of people and institutions about this matter in the past. Further I note that the Application, the 23 September 2021 Affidavit and the 11 November 2021 Affidavit are all in English and have not been translated by an interpreter. I do not accept that the Applicant’s lack of English skills is an adequate reason for his delay in making the complaints of discrimination.
Whether the Applicant’s reasons are taken individually or collectively, I am not satisfied that the Applicant has demonstrated any adequate or reasonable explanation for his significant delay in making his complaints of discrimination.
I am satisfied that if leave to make the application were granted, the Respondent would suffer substantial prejudice. It is oppressive for the Respondent to be subjected to allegations of racial discrimination some seven (7) years after the relevant events.
Conclusion
In relation to the merits of this case I conclude that the claims of racial discrimination made by the Applicant are not reasonably arguable. The merit of proceeding with this case is disproportionate to the time and resources likely to be consumed in dealing with the whole proceeding. Considerable time and resources have already been expended by the Court on this proceeding. I also take into account the fact that the sum of only $363 is sought to be recovered by the Applicant.
Further I consider the Applicant’s significant delay and the prejudice to the Respondent are significant factors in declining to grant leave pursuant s.46PO(3A) of the Human Rights Commission Act to commence the Application. The application for leave is refused.
I have determined the application for leave pursuant to s.46PO(3A) of the Human Rights Commission Act in the absence of the Respondent. In my view should the Respondent have been served in accordance with r.6.06(1) of the 2021 Rules, a likely outcome would have been a costs application by the Respondent against the Applicant, in the event that the Respondent became legally represented. Such an application for costs would be likely to far exceed the $363 being claimed. I specifically raised this matter with the Applicant at the Hearing, however he did not seem to understand that he could be exposed to paying a costs order to the Respondent if the Respondent obtained legal representation. I note that the Notice of Termination specifically states:
The FCA and the FCCA can award costs against either party in proceedings under section 46PO of the [Human Rights Commission Act].[8]
The Delegate also provided the same advice to the Applicant in the Reasons for Decision.[9]
[8] 23 September 2021 Affidavit, Notice of Termination.
[9] 23 September 2021 Affidavit, Reasons for Decision.
The application for leave pursuant to s.46PO(3A) is refused and the Application is dismissed. Orders are made accordingly.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kirton. Associate:
Dated: 20 October 2022
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