Matthews v Hargreaves
[2010] FMCA 840
•1 November 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MATTHEWS v HARGREAVES | [2010] FMCA 840 |
| HUMAN RIGHTS – Alleged discrimination – disability and criminal record. |
| PRACTICE AND PROCEDURE – Application for extension of time – whether any explanation for delay – whether any prejudice to the respondent if extension is granted – whether applicant has an arguable case. |
| Administrative Decisions (Judicial Review) Act 1977 (Cth) Australian Human Rights Commission Act 1986 (Cth), ss. 32(3)(c)(iii), 46PE, 46PH, 46PO(1) and (2) Australian Human Rights Commission Regulations 1989 (Cth), reg.4 Disability Discrimination Act 1992 (Cth), s.15(2)(d) Federal Magistrates Court Rules 2001 (Cth), r.41.02A |
| Bahonko v Nurses Board of Victoria & Anor (No 4) (2007) 97 ALD 721; [2007] FCA 1449 Bahonko v Nurses Board of Victoria & Anor [2008] FCAFC 29 Bahonko v Nurses Board of Victoria & Anor [2008] HCASL 358 Croker v TAFE Commission [2009] FCA 1024 Oorloff & Anor v Lee & Ors [2004] FMCA 893 McBride v Victoria (No. 1) [2003] FMCA 285 Ware v OAMPS Insurance Brokers Ltd (2005) EOC 93-402; [2005] FMCA 664 Yee v North Coast Area Health Service [2007] FMCA 1788 |
| Applicant: | KELVIN JOHN MATTHEWS |
| Respondent: | TIMOTHY WYNN HARGREAVES |
| File Number: | PEG 144 of 2010 |
| Judgment of: | Lucev FM |
| Hearing date: | 1 November 2010 |
| Date of Last Submission: | 1 November 2010 |
| Delivered at: | Perth |
| Delivered on: | 1 November 2010 |
REPRESENTATION
| The Applicant: | In person |
| The Respondent: | In person (by telephone link) |
ORDERS
That the applicant’s application under section 46PO(2) of the Australian Human Rights Commission Act 1986 (Cth) (“the Act”) for an extension of time in which to file an application under section 46PO(1) of the Act:
(a)be granted, as to that part of the putative application under section 46PO(1) of the Act related to alleged discrimination on the basis of disability, and that the time for filing of that part of the putative application be extended to 19 August 2010; and
(b)be dismissed, as to that part of the putative application under section 46PO(1) of the Act related to alleged discrimination on the basis of criminal record.
The matter is adjourned to 10:15am on 29 November 2010 for further directions, with both parties having liberty to appear by telephone.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 144 of 2010
| KELVIN JOHN MATTHEWS |
Applicant
And
| TIMOTHY WYNN HARGREAVES |
Respondent
REASONS FOR JUDGMENT
Introduction
Before the Court earlier this afternoon was an application for an extension of time under s.46PO(2) of the Australian Human Rights Commission Act 1986 (Cth),[1] brought in relation to a putative application alleging discrimination on the basis of disability and criminal record.
[1] “AHRC Act”.
At the time of the alleged discrimination the applicant, Mr Matthews, was Chief Executive Officer of the Shire of Shark Bay. The respondent, Mr Hargreaves, was at that time (and remains) a Councillor of that shire.
Facts
By letter dated 19 May 2010[2] the Australian Human Rights Commission[3] advised Mr Matthews that:
a)a complaint by him against the Shire of Shark Bay had been resolved; and
b)in relation to a complaint by him against Mr Hargreaves:[4]
i)that part of the AHRC Complaint of discrimination on the basis of imputed criminal record[5] had been adequately dealt with by the Western Australian Department of Local Government and Regional Development[6] which had made a finding against Mr Hargreaves, and on that basis the AHRC had decided, under s.32(3)(c)(iii) of the AHRC Act, not to continue its inquiry into Mr Matthews’ complaint of alleged discrimination on the basis of an imputed criminal record; and
ii)that part of the AHRC Complaint of discrimination on the basis of disability was not one in which there was a reasonable prospect of the matter being settled by conciliation, and therefore the complaint was terminated under s.46PH(1)(i) of the AHRC Act, and a Notice of Termination issued under s.46PH(2) of the AHRC Act was attached to the AHRC Letter.[7]
[2] “AHRC Letter”.
[3] “AHRC”.
[4] “AHRC Complaint”.
[5] Which is declared to constitute discrimination for the purposes of the AHRC Act by reg.4 of the Australian Human Rights Commission Regulations 1989 (Cth).
[6] “Department of Local Government”.
[7] “AHRC Notice of Termination”
The putative application in this Court was lodged in the Registry on 19 August 2010.
Mr Matthews’ affidavit
Mr Matthews has filed an affidavit in support of the extension of time application. In it Mr Matthews says that:
a)he relocated to Christmas Island on 29 May 2010 and took up a position as Chief Executive Officer of the Shire of Christmas Island;
b)with effect from 19 May 2010 there was a redirection notice[8] on his mail from his address in Shark Bay to his new address on Christmas Island;
c)the AHRC Letter and AHRC Notice of Termination were sent to Mr Matthews’ Shark Bay address;
d)mail deliveries occur on Christmas Island once per week, on Mondays, weather permitting;
e)he did not receive the AHRC Notice of Termination and AHRC Letter until he was on Christmas Island, in the week commencing 7 June 2010;
f)the documentation and files relating to his AHRC Complaint were packed in a sea container (by inference, sometime before his departure for Christmas Island on 29 May 2010) which was sent from Fremantle Port to Christmas Island and which was scheduled to arrive on Christmas Island on 28 June 2010, but which did not arrive until 30 June 2010;
g)ship unloading and quarantine inspection at Christmas Island Port took approximately five days, after which the sea container was delivered to the light industrial area on Christmas Island, from where it was Mr Matthews’ responsibility to arrange unloading and delivery of his belongings to his Christmas Island residence, and that entire process took approximately seven business days to arrange and complete;
h)unpacking and arranging his household belongings, including locating the documents related to the AHRC Complaint, took some “considerable time” (but which time is unspecified);
i)when it became apparent that he would be unable to comply with the requirement to file an application with this Court within 60 days of the date of the AHRC Termination Notice, that deadline being 19 July 2010, he sought advice from the Australian Services Union;[9] and
j)he did not receive the necessary documentation to enable him to prepare the putative application, which incorporates the application for an extension of time, to this Court, until approximately 25 July 2010.
[8] “Redirection Notice”
[9] “ASU”.
At the hearing this afternoon Mr Matthews, in addition to his affidavit evidence, also gave evidence that:
a)the AHRC Complaint Form attached to his putative application was in fact his AHRC Complaint; and
b)he relied upon the following alleged facts set out in the AHRC Complaint:
“My employer is the Council of the Shire of Shark Bay (body corporate as constituted in accordance with the Local Government Act 1995) consisting of seven (7) elected members. I commenced employment as the Chief Executive Officer of the Shire of Shark Bay on 9 January 2006 under a five year contract of employment. Councillor (Cr) T W Hargreaves was elected as a councilor at the ordinary local government elections for the Shire of Shark Bay in October 2007.
Consistently from January 2008 (until now) Councilor (Cr) Hargreaves has issued and circulated verbal statements and written material concerning myself by email, fax and letter drops to the community of Shark Bay, various media outlets and government Ministers and departments/agencies. Cr Hargreaves circulates material that is mostly false and misleading that he purports he has obtained from various reliable sources. Of particular concern to me is that Cr Hargreaves obtained personal and confidential information from my ex wife regarding my medical condition of Hepatitis C. In doing so Cr Hargreaves published this fact widely throughout the community (including other elected members and staff) as well as to the media and government Ministers and departments/agencies. The recent material he obtained (in confidence) from the Phillippines Embassy in Canberra is a clear example of this.
Cr Hargreaves also circulated information regarding alleged criminal convictions which required me to obtain a National Police Clearance in February 2009 refuting such allegations. As noted above Cr Hargreaves has also circulated material in addition to the above regarding my alleged membership of a child dating service in Asia (that is unfounded) and stating that it is inappropriate in my position as Chief Executive Officer that the Shire of Shark Bay should employ me should I be a member of such a dating service.”
Mr Hargreaves filed an affidavit, but beyond deposing that he is:
a)the person making the affidavit; and
b)a duly elected Shire Councillor for the Shire of Shark Bay,
and attesting to doubt as to whether he or the AHRC ought be the respondent to the present application, Mr Hargreaves’ affidavit deposes to no fact relevant to the application for an extension of time. Mr Hargreaves’ written and oral submissions went further, but were not supported by evidence.
As to the doubt as to whether Mr Hargreaves or the AHRC is the correct respondent to the current application, there can be no doubt that Mr Hargreaves is the correct respondent. The AHRC is a complaint receival and resolution body, and if a complaint is terminated by the AHRC on the basis that there is no reasonable prospect that it will settle by conciliation, the right is given to the complainant to apply to this Court to have this Court deal with the subject matter of the complaint.[10] That application to this Court is not an application for judicial review of the AHRC decision, but rather a new application in relation to the same alleged discrimination the subject of the complaint to the AHRC. Therefore, the respondent is the person whose conduct is alleged to be discriminatory. In this case, that is Mr Hargreaves.
[10] AHRC Act, s.46PO.
Principles – extension of time
The relevant principles with respect to an extension of time have been set out by the Federal Court as follows:
47. Under s 46PO(2), it is clear that the Court has a discretion to grant an extension of time. The principles to be considered when deciding whether to extend time for the filing of an application were described by Weinberg J in the decision of Bahonko v RMIT [2006] FCA 1325 at [21] to [24]. His Honour referred to the principles expounded by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9, which related to an application for an extension of time under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("ADJR Act"), and held that the principles therein stated were applicable to s 46PO. I respectfully agree with Weinberg J that those principles are relevantly applicable to an application under the HREOC Act.
48 The main three matters that need to be taken into account are:
• the explanation of the delay;
• any prejudice to the respondent; and
• whether the applicant has an arguable case.[11]
Application of the principles with respect to extension of time
[11] Bahonko v Nurses Board of Victoria & Anor (No. 4) (2007) 97 ALD 721 at 730 per Middleton J; [2007] FCA 1449 at paras.47-48 per Middleton J (“Bahonko (No. 4)”). An application for leave to appeal the judgment in Bahonko (No. 4) was unsuccessful: see Bahonko v Nurses Board of Victoria & Anor [2008] FCAFC 29 (“Bahonko – Full Court”). An application to the High Court for special leave to appeal from the judgment in Bahonko – Full Court was refused: Bahonko v Nurses Board of Victoria & Anor [2008] HCASL 358. The principles outlined in Bahonko (No. 4) were applied by the Federal Court in Croker v TAFE Commission [2009] FCA 1024 (“Croker”).
Delay
The Court finds that the facts in relation to the explanation for the delay are as set out hereunder.
The Redirection Notice redirecting Mr Matthews’ mail from Shark Bay to Christmas Island commenced on 19 May 2010. The date of the AHRC Termination Notice and AHRC Letter was 19 May 2010. The AHRC Termination Notice and AHRC Letter would therefore have been the subject of postal redirection from Shark Bay (once received there) to Christmas Island. In between the AHRC Termination Notice and AHRC Letter being sent by the AHRC to Shark Bay and the AHRC Termination Notice and AHRC Letter being redirected to Christmas Island Mr Matthews flew to Christmas Island on 29 May 2010. Given that mail deliveries to Christmas Island only occur once a week it can be accepted that Mr Matthews did not receive the AHRC Termination Notice and AHRC Letter until 7 June 2010, by which time he was resident on Christmas Island. Indeed, there is no evidence to the contrary.
On the evidence it is undisputed that Mr Matthews’ documentation in relation to the AHRC Complaint was in transit by sea, and in quarantine and transit on Christmas Island, until sometime in the second week of July 2010. It was not until about then that Mr Matthews was able to access his AHRC Complaint documentation, but even then in the process of unpacking his belongings, a few days were taken to find the AHRC Complaint documentation. That is not unreasonable in the context of a relocation, especially by a Chief Executive Officer of a local government body.
Following Mr Matthews finding the AHRC Complaint documentation he sought advice from the ASU with respect to an extension of time in which to file an application to this Court, and ultimately did not receive the documentation enabling him to make the application, including an extension of time application, until around 25 July 2010. Again, there is no evidence to contradict Mr Matthews’ version of these events.
In the Court’s view the delay caused by:
a)the unavoidable delay in Mr Matthews’ receipt of the AHRC Notice of Termination and AHRC Letter, and the absence of Mr Matthews’ AHRC Complaint documentation, due to delays which exist in the provision of ordinary postal and cargo deliveries between the mainland of the Commonwealth of Australia and the Australian Territory of Christmas Island;
b)unpacking his belongings; and
c)the seeking of advice, and provision of relevant documentation in relation to the application, following the delayed receipt of the AHRC Complaint documentation on Christmas Island,
constitutes an acceptable reason for the delay in filing the application. Further, the application was lodged:
i)within about six weeks (or within 42 days) of Mr Matthews obtaining access to his AHRC Complaint documentation; and
ii)within about four weeks (or 28 days) of his obtaining the relevant advice and documentation concerning the making of an application, including an application for extension of time, to this Court.
The above circumstances would indicate that had Mr Matthews had access to his AHRC Complaint documentation, and had access to relevant advice and the application documentation, within the normal or usual period of time, he would have made the application within time.
Prejudice to the respondent
There is no specific evidence of prejudice because of the delay. In the circumstances, the Court will proceed on the basis that there is no relevant prejudice to Mr Hargreaves, other than that he was entitled to consider the matter finalised within 60 days after the AHRC Termination Notice was issued. The Court observes, however, that the absence of prejudice is not sufficient to allow an extension of time.[12]
[12] Bahonko (No. 4) ALD at 731 per Middleton J; FCA at para.53 per Middleton J; Croker at para.19 per Edmonds J.
Arguable case
Mr Matthews’ AHRC Complaint conveniently splits into two parts: that related to alleged discrimination on the ground of disability, and that related to alleged discrimination on the basis of imputed criminal record.
The determination of whether or not an applicant has an arguable case in discrimination applications under the AHRC Act is rendered more difficult by the fact that there is no requirement to file either an affidavit or a statement or points of claim with the application. The application required to be filed under r.41.02A of the Federal Magistrates Court Rules 2001 (Cth)[13] does not necessarily assist in assessing the arguability of an applicant’s claims on an extension of time application. Nevertheless, on the basis of the evidence presently before the Court as a consequence of the hearing this afternoon, which evidence confirmed that Mr Matthews would assert facts the same or similar to those outlined in the AHRC Complaint, and contained within the AHRC Letter, it is possible to draw a conclusion with respect to whether or not there is an arguable case in relation to the alleged disability discrimination. Put shortly, it is alleged that Mr Hargreaves obtained information to the effect that Mr Matthews has Hepatitis C. It is alleged that Mr Hargreaves published this fact widely throughout the Shark Bay community, including to other elected members of the Shire, as well as to Shire staff, and to media and government Ministers and departments and agencies.
[13] “FMC Rules”.
The orders sought by Mr Matthews are:
a)an apology to be printed in the local newspaper in Shark Bay;
b)a declaration ordering that Mr Hargreaves not engage in any further unlawful discriminatory behaviour; and
c)damages for personal hurt and detriment to Mr Matthews’ reputation as a result of Mr Hargreaves’ actions.
The fact of the dissemination of information concerning Mr Matthews’ medical condition is not disputed by Mr Hargreaves. Although the facts are not the subject of any affidavit evidence, Mr Hargreaves’ submissions make it clear that he considered that he was justified in ascertaining information about Mr Matthews’ medical condition from a variety of sources, and justified in disseminating the information, which he argues ought to have been advised to him as a Shire of Shark Bay Councillor because Mr Matthews was employed as that Shire’s Chief Executive Officer at the time that Mr Hargreaves was elected as a Councillor.
On the basis of the above facts there is sufficient to argue that there is a link between the alleged disability suffered by Mr Matthews and his employment as Chief Executive Officer of the Shire of Shark Bay. The above facts also provide a sufficient basis for Mr Matthews to argue that he was subjected to a detriment on the ground of his disability by a person, Mr Hargreaves, acting or purporting to act on behalf of Mr Matthews’ employer, namely, the Shire of Shark Bay.[14] Whilst there may be other bases upon which discrimination is alleged, what has been said above is sufficient to conclude that Mr Matthews has an arguable case in relation to the alleged disability discrimination. Mr Matthews also alleges that he suffered the detriment of no longer being employed by the Shire of Shark Bay as a result of the alleged unlawful discrimination by Mr Hargreaves. It has long been the case that conduct impinging upon an employee’s enjoyment of the workplace, if done for a discriminatory reason, can constitute any other detriment under s.15(2)(d) of the DD Act.[15]
[14] Disability Discrimination Act 1992 (Cth) (“DD Act”), s.15(2)(d).
[15] McBride v Victoria (No. 1) [2003] FMCA 285; Ware v OAMPS Insurance Brokers Ltd (2005) EOC 93-402 at 74,248 per Driver FM; [2005] FMCA 664 at paras.103-104 per Driver FM.
For the above reasons, the Court is satisfied that Mr Matthews has an arguable case in relation to his alleged disability discrimination.
The claim of discrimination on the basis of an alleged or imputed criminal record falls to be determined on a different basis. That is because the complaint with respect to criminal record was terminated by the AHRC on the basis that the AHRC considered that Mr Matthews’ claim had already been adequately dealt with by reason of a complaint to the Department of Local Government, and the inquiry was therefore not continued.[16] There is no indication in the AHRC Letter as to what the finding of the Department of Local Government was and it is not evident what remedy, if any, the Department of Local Government was able to afford Mr Matthews, as opposed to imposing some form of punishment or censure upon Mr Hargreaves. However, for present purposes, none of that matters because an AHRC inquiry which is terminated under s.32(3)(c)(iii) of the AHRC Act is not a complaint which has been terminated under s.46PE or 46PH of the AHRC Act, and is not one in respect of which a Notice of Termination under s.46PH(2) of the AHRC Act has been given. It is not therefore a complaint in respect of which an application can be made to this Court alleging unlawful discrimination.[17] It is not, therefore, a matter which is within the jurisdiction of this Court to determine. It is not therefore an application, insofar as it concerns criminal record, which has any prospect of success at all. It therefore does not constitute or amount to an arguable case. It follows that the application insofar as it relates to alleged discrimination on the basis of an alleged or imputed criminal record must be dismissed.[18]
[16] AHRC Act, s.32(3)(c)(iii).
[17] AHRC Act, s.46PO(1).
[18] The Court notes that the AHRC Letter advises Mr Matthews that he can apply for a review of the decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth). There is nothing before the Court which indicates whether or not this course has been followed.
Conclusion
It is clear from what is set out above that the alleged discrimination on the basis of criminal record cannot be the subject of an application to this Court, and therefore there is no utility in granting an extension of time in relation to that part of the putative application.
With respect to the alleged disability discrimination there is an acceptable reason for the delay, and an arguable case. The evidence as to prejudice is neutral, and having regard to the reasons for the delay and the nature of the arguable case, this Court thinks that it is appropriate to grant the application to extend time in which to file the putative application, at least insofar as it concerns disability discrimination. The Court notes that it has often been observed that the Court ought not be too quick to dispose of human rights applications which appear to be arguable and where a self-represented litigant appears (whether by way of summary dismissal or refusal of an extension of time).[19]
[19] Oorloff & Anor v Lee & Ors [2004] FMCA 893; Yee v North Coast Area Health Service [2007] FMCA 1788.
The Court has concluded that Mr Matthews’ application for an extension of time in which to file an application under s.46PO(1) of the AHRC Act ought to be:
a)granted as to that part of the putative application related to alleged discrimination on the basis of disability, and that the time for filing of that part of the putative application be extended to 19 August 2010; and
b)dismissed as to that part of the putative application related to alleged discrimination on the basis of criminal record.
As both parties were self-represented there will be no order as to costs.
The matter will be adjourned to 10:15am on 29 November 2010 for further directions, with both parties having liberty to appear by telephone.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate:
Date: 1 November 2010
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