McBRIDE v State of Victoria - [2001] FMCA 55

FEDERAL MAGISTRATES COURT OF AUSTRALIA

McBRIDE v STATE OF VICTORIA

[2001] FMCA 55

HUMAN RIGHTS – Extension of time – whether Limitation of Actions Act 1958 (Vic) applies to Disability Discrimination Act 1992 – whether Judiciary Act 1903 s.79 makes Limitation of Actions Act applicable to Disability Discrimination Act 1992 – whether twelve-month limit in s.46PH(1)(b) applies to Federal Magistrates Court.

Judiciary Act 1903, s.79
Human Rights and Equal Opportunity Act 1986, ss.46PH, 46PO

Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344

Applicant:

MARY EDEL McBRIDE

Respondent:

STATE OF VICTORIA

File No:

MZ 291 of 2000

Delivered on:

24 July 2001

Delivered at:

Melbourne

Hearing Date:

24 July 2001

Judgment of:

McInnis FM

REPRESENTATION

Counsel for the Applicant:

Ms M Richards

Solicitors for the Applicant:

McKean & Park

Counsel for the Respondent:

Mr R Shepherd

Solicitors for the Respondent:

CORE The Public Correctional Enterprise

ORDERS

The Applicant be granted an extension of time within which to bring the application before this Court to 2 June 2000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ291 of 2000

MARY EDEL McBRIDE

Applicant

And

STATE OF VICTORIA

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

In this application, the applicant has sought an extension of time in which to bring an application to what was then the Federal Court and now by way of transfer to this court, the Federal Magistrates Court of Australia, an application arising out of an notice of termination from the Human Rights and Equal Opportunity Commission, dated 27 April 2000.
In the application to the Federal Court which was filed on 2 June 2000, the applicant when asked the question, "Do you need an extension of time?" indicated, "Yes" and in support of that application had attached a one-page letter which in turn had attached to it a medical certificate. The applicant in that one-page document and attachment has provided material which would suggest that in the present case the delay of some eight days in terms of complying with the time limit, which appears in s.46PO(2) of the Human Rights and Equal Opportunity Act, has been explained, she asserts, by her medical problems and other matters at the time.
No issue is really taken by the respondent as to the eight-day delay, however, it is argued on behalf of the respondent that as the matter proceeded from 2 June 2000, then from that date on the court was not competent to continue to deal with the matter. As I understand the submission for and on behalf of the respondent, when the matter was indeed transferred to this court by the Federal Court as a consequence of the order made by his Honour Marshall J on 4 December 2000, then by that stage there had been no decision on the extension of time application and the Federal Court was not competent to transfer the matter to this court.
Likewise, it is said that, thereafter, when the matter was dealt with by this court on a number of occasions before me, firstly on 18 December 2000 which resulted in an adjournment to 26 February 2001 and numerous other adjournments since that date, largely at the behest of the applicant, it is said that this court likewise is incompetent until such time as the application for extension of time has been dealt with by the Court.
The matter of the application for extension of time is assumed by the applicant's representatives to have not been any longer an issue. There is no real basis for that belief, save and except for the fact that on no occasion during the course of the proceedings being listed for mention before this court and indeed the Federal Court, was that issue raised or canvassed. In my view the failure of a court to deal with an application for extension of time at the earliest opportunity, whilst being regrettable in one sense, is perfectly understandable when in the same application the parties are agreed that the matter should continue to be adjourned until such time, as indicated to this court, other proceedings are either disposed of or dealt with in other courts. So the process of dealing with an application for extension of time in those circumstances was, as with the rest of the application, deferred.
In my view, in those circumstances it is competent for the court both to transfer this application from the Federal Court to the Federal Magistrates Court and for this court to continue to make directions, which by implication are directions to deal with the application for extension of time and indeed, to deal with the substantive application. Hence, in my view there is clear competency on the part of this court to deal with on this day the application for extension of time.
The principles in relation to an application for extension of time are set out in various authorities and in particular, reference is made to the decision by Wilcox J in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344, also reported in 58 ALR 305. Counsel for the applicant took me to that decision and the well-stated principles which appear in that decision at page 310. I was taken to that page where the principles which are relevant to this case include providing a good reason for the extension of time, looking at the action taken by the applicant and looking at the issues of prejudice.
It is conceded by counsel that I am entitled to look at the merits of the substantive application. No issue is really taken about the proper basis upon which the applicant seeks the extension of time, that is that there is a reasonable explanation which is not seriously challenged. There is, however, a challenge to the issue of prejudice, although it has been pointed out that although a significant time has elapsed between the original date of a complaint of unlawful discrimination, namely November 1994 and the commencement of the claim before the Human Rights and Equal Opportunity Commission, which is 3 August 1998, the respondent has been able to provide detailed affidavit material and indeed produce documents in relation to this matter, which has had a significant history, particularly in the context of workers compensation and claims and assessment of those claims. In the circumstances I am not satisfied that there is prejudice of a kind which could persuade the court not to grant the extension of time.
As I have indicated, the first critical date in this matter is November 1994 and the other critical dates which are common ground are December 1994 to May 1995, early 1996, that is January, February and then again 16 July 1997. It has been further submitted by counsel for the respondent that in considering the merits of the application I am entitled to look at the question of whether or not s.79 of the Judiciary Act 1903 applies to make s.5 of the Limitations of Actions Act applicable to a claim under the Disability Discrimination Act 1992 and this court.
Section 5 of the Limitation of Actions Act provides for a six-year time limit on those actions which are said in sub-s.(1)(d) of that act to be recoverable by virtue of ‘enactment’. For the present purposes, although I am not entirely satisfied that it be correct, I am prepared to accept that ‘enactment’ in the Limitation of Actions Act in Victoria may extend to a Commonwealth enactment. As I indicated, however, I am not satisfied necessarily that that is the case as a matter of law, but for the purpose of this decision I am prepared to accept it so that I can then consider the question of whether the limitation period applies to the Disability Discrimination Act.
In my view, the Limitation of Actions Act is probably unlikely to apply to that Commonwealth legislation, but if it does, then it seems to me that on the chronology as presented to me, the only area where there may be some doubt about whether there is indeed some application of the Limitation of Actions Act, would be the events which occurred in November 1994. They would then only be limited if I were to find that the claim made by the applicant on 3 August 1998 should be in a sense disregarded and that I should then look to the claim made in the Federal Court on 2 June 2000.
In my view there is only one course open to an applicant claiming unlawful discrimination under the appropriate legislation before being permitted to proceed further to a court, whether it be the Federal Court or the Federal Magistrates Court of Australia and that is to make a claim with the Human Rights and Equal Opportunity Commission. That claim is made and has been made on 3 August 1998. I am satisfied that in those circumstances that claim is well within a six-year period, even if, as I have indicated, that six-year period does apply to the present case.
In those circumstances, once a claim is lodged, then the trigger mechanism to enable the applicant to come to this court, can only be achieved by first lodging a claim and then secondly by obtaining the advantage of a termination notice. It is only after a termination notice is filed that this court then has jurisdiction.
The second basis upon which it is considered that the applicant perhaps should not be granted an extension of time is the issue of a 12-month period which is provided to the Human Rights Commission where the Commission may if it chooses to do so, exercise a discretion (see s.47PH(1)(b) HREOC Act). The discretion can be to terminate a complaint where the date of the events leading to the alleged unlawful discrimination occurred more than 12 months prior to the lodging of the complaint.
In the present case, the termination notice does provide for a decision where the Commission did in fact terminate the complaint, at least in part on that basis. Presumably that was based upon the same critical time frame which has been referred to in the present case, namely November 1994 up to 16 July 1997, having regard to the fact that the complaint was then lodged on 3 August 1998. In my view the 12-month period of time which is referred to in the legislation and which is the subject of the notice of the termination from the Commission, does not have application to the Federal Magistrates Court of Australia. If indeed it was to have application to this court, then the legislature should have clearly indicated that in the legislation and there would be no doubt.
It seems to me that on a proper reading of the legislation, the powers of the Commission compared with the powers of the court are quite different. The powers of the Commission, as I indicated during the course of submissions by counsel, seem to be powers which relate more to conducting conciliations and indeed further inquiries. When one looks at those powers and specifically I look at s.46PH of the HREOC Act which relates to termination of complaint, it is quite clear that the president exercising those powers, apart from as I have indicated, may terminate a complaint by exercising a discretion to find that the complaint was lodged more than 12 months after the alleged discrimination took place, but also has other powers in relation to whether the complaint was trivial, vexatious, misconceived or lacking in substance and then may proceed to, if the complaint is not terminated, make other directions and require parties to attend conferences and the like.
The powers of this court however are very broad and are set out in s.46PO(4) of the HREOC Act. Upon being satisfied there has been unlawful discrimination, the court may make a wide range of orders, including declarations, including reasonable acts to be performed by the respondent to redress any loss or damage suffered by the applicant, orders in relation to re-employing an applicant and orders as indicated requiring payment of damages and other sources of redress.
It seems to me on a proper reading of the legislation that the 12-month period was meant to and does specifically apply only to the Commission, as the Commission then has a more conciliatory role and indeed does not have the wide range of powers to which I have referred which are vested in this court hearing an application once the matter has been the subject of a notice of termination under s.46PH(2) of the HREOC Act by the Commission.
In those circumstances, I am satisfied that there is no impediment to this court proceeding to hear the application and on the usual grounds that are provided upon which it can be argued that an extension should be granted, I am satisfied it is appropriate to grant an extension of time and do so in relation to this application.
Accordingly, it is ordered:
The applicant be granted an extension of time within which to bring the application before this court to 2 June 2000.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 24 July 2001