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 application to the Federal Court or this court must be made within 28 days after the date of issue of a notice under section 46PH(2) or within such further time as the court concerned allows. Ms Low requires an extension of time to proceed with her application because the application was made more than 28 days after the date of issue of the notice under section 46PH(2).

In purported compliance with the orders I made on 9 October, Ms Low has sent by facsimile to this Court two affidavits dated 16 and 17 October, 2000.  The affidavits were received by the Court prior to 18 October but due to administrative error were filed in the Federal Court Registry, rather than in the registry of this Court, on 20 October 2000.  I gave leave to Ms Low to file the affidavits today in court and that has occurred.  The affidavits are technically defective in that they do not contain an address for service but no issue was taken with that technical defect.

THE EXTENSION OF TIME APPLICATION

The Human Rights and Equal Opportunity Commission Act does not make provision as to when an extension of time should be granted. In my view, the Court should apply general principles to the question and should have regard to the facts that the legislation in issue is remedial and that applicants pursuing action under the legislation are commonly, as in this case, unrepresented. In my view, the court should grant an extension of time where there is a reasonable explanation for the delay in filing the application for relief, where the balance of convenience as between the parties favours the granting of an extension of time and where the application discloses an arguable case.

In her affidavit dated 16 October 2000, Ms Low deposes facts providing a reasonable explanation for the delay in filing the application for relief.  Briefly, Ms Low deposes that she did not become aware of the termination of her complaint by the Human Rights and Equal Opportunity Commission until 11 May 2000 and that she promptly took action thereafter to make application to the Federal Court.  The notice of termination was issued by the Human Rights and Equal Opportunity Commission on 13 April 2000 and it is not clear why the notice did not come to the attention of Ms Low before 11 May 2000.

It does appear that, while the notice was posted, it was not received by Ms Low.  I have no reason not to accept the facts deposed to by Ms Low in her affidavit dated 16 October 2000 and I note that no issue of substance was taken by the respondent ATO on the issue of the explanation for the delay.  Accordingly, I find that there is a reasonable explanation for the delay in filing the application to the Federal Court and that the delay was not in any event excessive. 

As to the balance of convenience, if the extension of time is not granted, it will put an end to Ms Low's application for relief.  She will be prevented from taking further her claim of unlawful discrimination.  The respondent has not identified any particular prejudice that it would suffer if the extension of time were granted, apart from the ordinary, albeit potentially significant, expense and inconvenience of having to deal with a legal proceeding.  I conclude that the balance of convenience favours granting the extension of time, subject to an issue of costs which I will return to.  However, the remaining and substantial question is whether Ms Low has an arguable case.

Because the application did not identify what sections of the legislation Ms Low relied upon and no affidavit in support of the application was filed with the application, the application does not on its face disclose an arguable case.  Ms Low has sent certain correspondence to the court which is not available to the court as evidence because it has not been sought to be admitted as evidence.  Ms Low has, however, tendered certain unsworn affidavits in support of her application and these have been admitted into evidence.

In her complaint to the Human Rights and Equal Opportunity Commission, which has also been tendered, Ms Low complained that she had been  unfairly treated by the ATO because she is a female, Asian, single, a migrant and because of perceived and fabricated disabilities.  She stated that a psychiatrist’s report that was prepared for Comcare was used to impute that she had a disability.  She believed that as a result of this report, staff at the ATO discriminated against her and that this discrimination led to her dismissal on 23 September 1998.

The Australian Taxation Office represented to the Commission that there had been no unlawful discrimination. The ATO represented that there had been numerous complaints about Ms Low by co-workers and managers over a long period of time. The ATO stated that Ms Low had had difficulties performing the duties of her position which lead to an appointment of an independent assessment officer. The independent officer reached a conclusion that Ms Low was unable to perform the duties of her position and she was declared inefficient within the meaning of section 76S of the Public Service Act 1922 on 23 September 1998.

The Human Rights and Equal Opportunity Commission concluded that there was no, or no sufficient, evidence of discrimination on the grounds of an imputed disability, Ms Low's marital status or her race.  On the basis of information provided by the ATO the Commission concluded that the way Ms Low had been treated was because of conflicts in the work place that Ms Low was having with other staff members and her inability to perform the duties of her position.

The Commission also did not accept that the psychiatrist's report referred to by Ms Low had been used by the ATO to impute a disability that was subsequently used to discriminate against Ms Low.  No evidence was provided to demonstrate that an imputed disability, Ms Low's marital status, her race or sex was connected to a decision to appoint an independent assessor, which ultimately led to Ms Low's dismissal.

Some inconsistencies in the basis for the application by Ms Low are apparent from the evidence.  However, in her affidavit dated 17 October 2000, Ms Low sets out the current basis for her application to the Court.  She refers to a denial of her request through what is known as study bank facilities and/or the denial of other training with the CPSU.  She also refers to the denial of further training which might have assisted her, for example, through the CPSU, and the denial of access to personnel at Sydney ATO office on 3 February 1998 which allegedly was connected to a workplace assault.  Further, allegedly unsubstantiated allegations were encouraged by illegal insertions into Ms Low's file for the purpose of impairing her rights.

Ms Low also alleges the deliberate fabrication of files; alleged violence and humiliation resulting from a search of her cabinet; an alleged baseless complaint relating to a conversation had by Ms Low; alleged unfair and/or dishonest investigations resulting in alleged illegal insertions into her files; alleged allowance by ATO of access to fabricated documents by third parties in connection with other court proceedings and other deliberate actions to place elements of doubt that hindered or may have hindered her access to achievements, recognition and enjoyment of the fruits of her endeavours.

These allegations relate to alleged breaches of sections 9, 15 and 18 of the Racial Discrimination Act 1975. In addition, Ms Low alleges breaches of sections 6, 14 and 28, (which I take to be an error, I believe it should be 28B) of the Sex Discrimination Act 1984 in that the ATO has allegedly deliberately allowed sexual harassment in employment by allowing unsubstantiated and unwarranted allegations to the effect of following one female employee to the toilet; and that the ATO allowed sexual harassment allegations and/or insinuations of attempting to follow one officer to her home. Ms Low also refers to her alleged isolation and/or the need to place Ms Low under supervision and alleged defamatory statements permitted by the ATO.

Ms Low also relies upon her affidavit of 16 October 2000 in which she deposes that the ATO has breached section 15 of the Disability Discrimination Act 1992 by subjecting her to isolation, harassment and/or inefficiency proceedings in the workplace relating to an assault on 3 February 1998. Ms Low further alleges harassment relating to the search of her cabinet by the manager of public assistance of the Hurstville ATO office to reconcile records; the alleged deliberate and continued isolation of Ms Low; the apparent instructions to one officer to conduct him or herself as directed by management and the use of an output quota.

In his affidavit, dated 20 July 2000, Michael Raymond Gaffney of the Australian Taxation Office deposes that Ms Low was transferred from the Department of Social Security to the ATO on 10 July 1995.  She started at the Hurstville Office of the Withholding Tax Business Line.  Mr Gaffney says that on 15 December 1995 or thereabouts, Ms Low's supervisor, one, Petra Jones, noted interpersonal conflict and a drop in service level and work output.  Ms Jones decided to transfer Ms Low to another area.  On 6 August 1996 Ms Low was promoted to administrative service officer grade 3.  Her supervisor was one Cathy Lawrie. 

On 9 December 1996, Ms Low was in dispute with another inquiry officer, one V. Toro.  Ms Toro reported an incident to Ms Low's then supervisor, Kay Ritchie.  On the same day Ms Low met with the supervisors and a report was made.  The report detailed complaints of incessant talking, disrupting meetings and privacy and security fixations. 

On 6 February 1997, Ms Low had an interview with, one M. Reed, a personnel manager.  Ms Low reported further difficulties with co‑workers.  Ms Low threatened resignation.  On 13 February 1997, Ms Low left work abruptly following a telephone argument with L. Reed.  The affidavit goes on to detail the history of complaints made by and about Ms Low and a series of investigations. 

Ms Low was charged with two disciplinary offences on 11 April 1997. A formal inefficiency notice was served on Ms Low on 9 April 1998. An inefficiency report was completed on 28 August 1998 which recommended that Ms Low's appointment to the Public Service be terminated. On 23 September 1998 a notice of retirement under section 76W of the Public Service Act was issued.

CONSIDERATION OF THE ISSUES

Section 46PO(3) of the Human Rights and Equal Opportunity Commission Act provides that:

The unlawful discrimination alleged in an 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.

In this case, the allegations made by Ms Low are wide ranging and the presentation of her case has traversed a substantial number of complaints.  The application to the Human Rights and Equal Opportunity Commission, like the application to the Federal Court, was very general in nature and provided a springboard for Ms Low to elaborate upon her complaints. 

It appears that, in her affidavits of 16 and 17 October 2000, Ms Low identified matters which were not previously drawn to the attention of the Human Rights and Equal Opportunity Commission.  At the same time I am satisfied that the general nature of those complaints relate to alleged discrimination in the workplace by the ATO over an ascertainable period, roughly between late 1996 and 23 September 1998.

In general terms I think that Ms Low could satisfy the Court that the unlawful discrimination alleged in her application arises out of substantially the same acts, omissions or practices that were the subject of the terminated complaint. Ms Low bases her application first on section 15 of the Disability Discrimination Act 1992. That section relevantly provides that:

It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee's disability or a disability of any of that employee's associates … in the terms or conditions of employment that the employer affords the employee … or by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training or to any other benefits associated with employment or … by dismissing the employee or … by subjecting the employee to any other detriment.

It is clear that the ATO regarded Ms Low as inefficient and took action against her relating to that inefficiency, however, there is nothing before the Court to indicate that any actual or imputed disability that might have been attributed to Ms Low by the ATO was in any way connected to any action that the ATO took against Ms Low. Accordingly, Ms Low has failed to establish an arguable case of unlawful discrimination under the Disability Discrimination Act.

Secondly, Ms Low bases her application upon alleged breaches of sections 9, 15 and 18 of the Racial Discrimination Act 1975. Section 9 renders it:

…unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise on an equal footing of any human right or fundamental freedom in the political, economic, social, cultural or any other field or public life.

There is nothing whatsoever to suggest that anything that was done by the ATO in relation to Ms Low had any connection to her race, colour, descent or national or ethnic origin.  Section 15 renders it:

unlawful for an employer or a person acting or purporting to act on behalf of an employer to … refuse or fail to offer or afford a second person the same terms of employment, conditions of work and opportunities for training and promotion as are made available to other persons having the same qualifications and employed in the same circumstances on work of the same description … or to dismiss the second person from his employment, by reason of the race, colour or national or ethnic origin of that second person or of any relative or associate of the second person.

Again there is nothing whatsoever to suggest that the actions of the ATO in relation to the terms of Ms Low's appointment, her opportunities for training and promotion and her ultimate dismissal had any connection with her race, colour or national or ethnic origin. 

Section 18 relates to acts done for two or more reasons which, for the reasons I have just given, have no relevant application.

Finally Ms Low alleges breaches of sections 6, 14 and 28B (as I take it) of the Sex Discrimination Act 1984. Section 6 deals with discrimination on the ground of marital status. Section 14 deals with discrimination in employment in relation to a person’s sex, marital status, pregnancy or potential pregnancy. Section 28B deals with unlawful sexual harassment. Ms Low has not advanced anything capable of connecting any action that may have been taken in relation to her in her employment with the ATO to her sex or marital status. She has not alleged any sexual harassment of her. She has in fact alleged unwarranted complaints of sexual harassment by her which are not material for the purposes of section 28B.

Ms Low has been given several opportunities both in the Federal Court and in this Court to put her application on a foundation that would provide an arguable basis for her allegations of unlawful discrimination under the Disability Discrimination Act, the Sex Discrimination Act and the Racial Discrimination Act. She has failed to do so.

CONCLUSIONS

I conclude that Ms Low's application does not disclose an arguable case.  In the circumstances I think that the appropriate course for the Court to take is to decline to grant an extension of time to bring the application and in consequence to dismiss the application.

The alternative course would be to grant an extension of time to enable Ms Low to have her day in court to give her the opportunity to present her case in further detail.  However, it is apparent from the directions hearings in this matter in the Federal Court and in this Court that that course would be most unlikely to be productive and would put the respondent, ATO, to significant expense.  Were that to occur, and were the Court to ultimately dismiss the application, which appears in the circumstances inevitable, then the Court may well feel constrained to make an order for costs in favour of the respondent.

Mr Markus has submitted that costs should be awarded now.  In my view the Court should be slow to award costs at an early stage of human rights proceedings so that applicants have a reasonable opportunity to get their case in order, to take advice and to assess their position.  It would, in my view, be undesirable for costs to be awarded commonly at an early stage, as that would provide a deterrent to applicants taking action under what is remedial legislation in a jurisdiction where costs have historically not been an issue.

By disposing of the application now at this relatively early stage the respondent is able to avoid being put to the substantial expense of a full hearing and in those circumstances I do not think it necessary or appropriate to make any order as to costs.  Therefore the orders I make are to refuse the application for an extension of time, and to dismiss the principal application for relief.  I make no order as to costs.

I certify that this and the preceding
pages constitute a true copy of
the Reasons for Judgment of
ROLF DRIVER FM
Dated 31 October, 2000

………………………………………………
Rebecca Chen, Associate