Low v Australian Taxation Office - [2000] FMCA 6

IN THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

Registry: Sydney

Applicant: Lan Low

Respondent : Australian Taxation Office

File No: SZ18/2000

Hearing Dates: 6.9.2000, 9.10.2000, 23.10.2000

Date of Decision: 23 October 2000

Before: Rolf Driver FM

Primary Legislation: Racial Discrimination Act 1975 (Cth)
Sex Discrimination Act 1984 (Cth)
Disability Discrimination Act (Cth)

Application: Unfair Dismissal

Matter for Decision: Extension of time and costs

Catchwords: Human Rights – disability discrimination – racial discrimination – sex discrimination – termination of complaint by President of Human Rights and Equal Opportunity Commission.
Practice and procedure – extension of time and costs – considerations relevant to section 46PO(2) Human Rights and Equal Opportunity Commission Act 1986.

REPRESENTATION

Applicant: Applicant in person

Respondent: Mr P. Markus

ORDERS:
1.     Application for extension of time refused.

2.     Application dismissed.

3.    No order as to costs.

IN THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
SYDNEY REGISTRY
No SZ18/2000

BETWEEN:

Lan Low
Applicant

and

AUSTRALIAN TAXATION OFFICE
Respondent
INTRODUCTION
This is an application by Ms Lan Low pursuant to section 46PO of the Human Rights and Equal Opportunity Commission Act 1986. The application alleges unlawful discrimination by the Australian Taxation Office contrary to the Disability Discrimination Act 1992, the Racial Discrimination Act 1975 and the Sex Discrimination Act 1984. The applicant seeks an apology and unspecified compensation. The application was filed on 8 June 2000 in the Federal Court.
BACKGROUND
The application was incomplete in that it did not state all sections of each Act relevant to the applicant's application in compliance with instructions contained in paragraph 11 of form 167. Also the application did not contain an affidavit in support as required by Federal Court Order 81 rule 5 subrule (2). The need for such an affidavit is made clear in paragraph 12 of form 167. The Federal Court ordered Ms Low to file an amended application remedying those defects but those orders were not complied with while the matter was in the Federal Court.
On 28 August 2000 Whitlam J of the Federal Court ordered that proceedings be referred to this court. On the same day, Ms Low filed in the Federal Court a subpoena for production of certain documents. On 9 October 2000 in this Court, the respondent moved that the subpoena be set aside or that in the alternative Mr J. Heard, to whom the subpoena was directed, and the respondent be excused from compliance with the subpoena. I ordered that Mr Heard and the respondent be excused from complying with the subpoena for the reasons that the subpoena was premature and excessively broad. There were also some technical defects with the subpoena.
I also ordered that the applicant file by 18 October 2000 an affidavit as required by order 81 of the Federal Court Rules providing the basis for the application for relief and I relisted the matter for hearing on the issue of extension of time on 23 October, 2000, namely, today. Section 46PO(2) of the Human Rights and Equal Opportunity Commission Act provides that an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] FMCA 6
Decision Date: 23 October 2000

CaseChat Overview and Summary

In Low v Australian Taxation Office, the applicant, Low, challenged the decision of the President of the Human Rights and Equal Opportunity Commission to terminate her complaint of discrimination on various grounds, including disability, race, and sex. The case was heard in the Federal Court of Australia. Low sought an extension of time and costs, arguing that the President's decision to terminate her complaint was unreasonable and that she had been unfairly prejudiced by the termination.

The primary legal issues for the court to decide were whether the President's decision to terminate the complaint was unreasonable and whether the applicant had been unfairly prejudiced by the termination. The court was also required to consider the factors relevant to an extension of time and costs under section 46PO(2) of the Human Rights and Equal Opportunity Commission Act 1986.

The court found that the President's decision to terminate the complaint was not unreasonable and that the applicant had not been unfairly prejudiced by the termination. The court held that the termination of the complaint was a valid exercise of the President's discretion under section 46PO(1) of the Act. The court also found that the applicant had not demonstrated any of the factors relevant to an extension of time and costs under section 46PO(2) of the Act, and therefore, the application for an extension of time and costs was dismissed. The court emphasised that the decision to terminate a complaint was a matter of discretion for the President and that the applicant had not demonstrated any exceptional circumstances that would warrant an extension of time or an award of costs.

The court's decision was that the application for an extension of time and costs was dismissed, and no orders were made in favour of the applicant. The court held that the President's decision to terminate the complaint was not unreasonable and that the applicant had not been unfairly prejudiced by the termination. The court also found that the applicant had not demonstrated any of the factors relevant to an extension of time and costs under section 46PO(2) of the Act.

Orders