Reurich v Campbell Page Ltd

Link copied
Case Copied 28 min read

FEDERAL COURT OF AUSTRALIA

Reurich v Campbell Page Ltd [2018] FCA 683

File number: NSD 2128 of 2017
Judge: MARKOVIC J
Date of judgment: 17 May 2018
Catchwords: PRACTICE AND PROCEDURE – application for extension  of time – where no reasonable explanation for delay in making application – where delay caused prejudice to first and third respondents – where applicant does not have an arguable case – whether extension of time should be granted – application refused.
Legislation:

Australian Human Rights Commission Act 1986 (Cth) ss 46PO(1), 46PO(2), 46PO(3)

Disability Discrimination Act 1992 (Cth) ss 4, 24
Cases cited:

Ferrus v QANTAS Airways Limited (2006) 155 IR 88; [2006] FCA 812

Vergara v Living and Leisure Australia Ltd [2013] FCA 775

Date of hearing: 16 April 2018
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 39
Counsel for the Applicant: The Applicant appeared in person
Counsel for the First and Third Respondents: Mr B Cross
Solicitor for the First and Third Respondents: Kennedys

ORDERS

NSD 2128 of 2017
BETWEEN:

PETER GEORGE REURICH

Applicant
AND:

CAMPBELL PAGE LTD

First Respondent

CASEY UNKNOWN

Second Respondent

GABRELLE SHEA (and others named in the Schedule)

Third Respondent

JUDGE:

MARKOVIC J

DATE OF ORDER:

17 MAY 2018

THE COURT ORDERS THAT:

1.The applicant’s application for an extension of time under s 46PO(2) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) be dismissed.

2.The amended originating application under the AHRC Act be dismissed.

3.The applicant pay the first and third respondents’ costs of the application for an extension of time under s 46PO(2) of the AHRC Act.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

MARKOVIC J:

  1. This is an application for an extension of time under s 46PO(2) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) in which to make an application to the Court alleging unlawful discrimination.

  2. The applicant, Peter George Reurich, lodged his originating application under the AHRC Act with the Court on 21 November 2017 (Originating Application), approximately eight months out of time.  The Originating Application named six respondents. As some of those respondents were incorrectly named, Mr Reurich filed an amended originating application (Amended Application) to correct the names of the first and third respondents.  The respondents named in the Amended Application are Campbell Page Ltd (Campbell Page), Casey (last name unknown), Gabrelle Shae, Sue McGregor, Ross McLatchie and Xavier Crimmins.  As it appears that the third respondent’s name was still misspelt in the Amended Application and should have been Gabrelle Shea, not Gabrelle Shae, I will hereafter refer to the third respondent as Ms Shea.

  3. As at the date of the hearing of Mr Reurich’s application for an extension of time, he had only served the first and third respondents – no other respondent had been served.

    BACKGROUND

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Reurich v Campbell Page Ltd and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2018] FCA 683
Decision Date

CaseChat Overview and Summary

In the case of Reurich v Campbell Page Ltd, the applicant, Mr Reurich, sought an extension of time to lodge an application in relation to discrimination complaints he had made against Campbell Page. The application was made after the Australian Human Rights Commission had terminated the complaints, and Mr Reurich had missed the 60-day period in which he was required to commence the proceedings. The respondents, Campbell Page and two of its employees, opposed the application for an extension of time on the grounds that there was no reasonable explanation for the delay, and that the delay had caused them prejudice.

The court was required to decide whether it should exercise its discretion under s 46PO(2) of the Australian Human Rights Commission Act 1986 (Cth) to extend the time for Mr Reurich to lodge his application. The court considered various factors in making its decision, including the explanation for the delay, the prejudice caused to the respondents, and the merits of the application.

The court found that Mr Reurich had not provided a reasonable explanation for the delay, and that the delay had caused prejudice to the respondents. The court also found that Mr Reurich did not have an arguable case. The court held that it should not exercise its discretion to extend the time for Mr Reurich to lodge his application, and dismissed the application for an extension of time. The court also dismissed the amended originating application and ordered Mr Reurich to pay the respondents’ costs of the application for an extension of time.

Orders

Orders of the court

1. The applicant’s application for an extension of time under s 46PO(2) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) be dismissed.

2. The amended originating application under the AHRC Act be dismissed.

3. The applicant pay the first and third respondents’ costs of the application for an extension of time under s 46PO(2) of the AHRC Act.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

As at the date of the hearing of Mr Reurich’s application for an extension of time, he had only served the first and third respondents – no other respondent had been served.BACKGROUND Campbell Page was contracted by the Department of Employment to deliver employment service programs and assist a range of job seekers. Mr Reurich was connected to Campbell Page’s services between 2011 and 2014. On 24 July 2015 Mr Reurich made a complaint to the Anti-Discrimination Board of New South Wales (Anti-Discrimination Board) alleging that he had been discriminated against because he is an older male, that he had been bullied by female staff of Campbell Page and that he had been banned from accessing its services in contravention of the Anti-Discrimination Act 1977 (NSW) (ADB Complaint). By letter dated 30 September 2015 the Anti-Discrimination Board informed Campbell Page that the ADB Complaint had been terminated because Mr Reurich did not wish to pursue it further. On or about 3 November 2015 Mr Reurich made a complaint by email to the Australian Human Rights Commission (AHRC) alleging disability discrimination in contravention of the Disability Discrimination Act 1992 (Cth) (DD Act). A copy of the complaint was provided to Campbell Page on 5 August 2016. On 25 January 2017 a delegate of the President of the AHRC wrote to Mr Reurich informing him that the complaint he had made against Campbell Page alleging disability discrimination under the DD Act had been terminated under s 46PH(1)(i) of the AHRC Act because she was not satisfied that there was a reasonable prospect of the matter being settled by conciliation (Termination Letter). The Termination Letter enclosed a notice of termination dated 25 January 2017 issued under s 46PH(2) of the AHRC Act (Termination Notice). It also informed Mr Reurich that pursuant to the AHRC Act, after termination of a complaint, the person affected by the alleged discrimination can apply to the Federal Circuit Court of Australia (Federal Circuit Court) or this Court to have the allegations decided by the court and that such an application had to be made within 60 days of the date on the Termination Notice.THE APPLICATION FOR AN EXTENSION OF TIME In the Originating Application and the Amended Application Mr Reurich includes the following under the heading “Extension of time” (as written):Date of issue of notice under section 46PH(2) of the Australian Human Rights Commission Act 1986: 11th May 2016 TerminationThe Applicant asks for an extension of time to lodge this application because I am late as I have suffered great depression and Anxiety and was confused because conciliations were continually postponed and I was confused about the Termination (can be verified by emails I have continually asked the Human Rights commission about it) and when I did seek to sort it I was told by Self representation people from Justice connect that I should not proceed. However I do want to seek justice for the bullying as what happened to me is still happening to others and even today I am being discriminated against by Campbell Page through Sat (Aka Gabriella) by the treatment she continue to dish out to myself and boofhead my assistance Dog calling me a horrible man amongst other things to her co-workers . My Psychologist believes I have autism or asperses syndromes and yet I have been furiously seeking employment but I feel and am aggrieved by earlier actions of the respondents costing me employment opportunitiesThe reference to “11th May 2016 Termination” is incorrect. The Termination Notice is dated 25 January 2017.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In light of those matters, in my opinion, the Amended Application fails to disclose an arguable case. CONCLUSION Having regard to all of the circumstances of this case I am not persuaded that I should exercise my discretion to extend time under s 46PO(2) of the AHRC Act. Mr Reurich’s application for an extension of time should be dismissed and, it follows, that the amended originating application filed by Mr Reurich should also be dismissed. Mr Reurich should pay Campbell Page’s and Ms Shea’s costs of the application to extend time. I will make orders accordingly.

Ratio Decidendi

Legal Principle Established

In Ferrus, in considering the exercise of the discretion to extend time in s 46PO(2) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth), which was, save for the time by which an application had to be made, in substantially the same terms as s 46PO(2) of the AHRC Act, at [19] Collier J cited with approval the principles described by McInnis FM in Phillips v Australian Girls Choir [2001] FMCA 109 as follows:1.There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The 'prescribed period' of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 550).2.It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). It is not a precondition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential precondition (Comcare v A'Hearn (1993) 45 FCR 441 and Dix v Client Compensation Tribunal (1993) 1 VR 297 at 302).3.Action taken by the applicant other than by making an application to the court is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised (see Doyle v Chief of Staff (1982) 42 ALR 283 at 287).4.Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension (see Doyle at 287).5.The mere absence of prejudice is not enough to justify the grant of an extension (see Lucic at 416).6.The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted (see Lucic at 417).7.Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion (see Wedesweiller v Cole (1983) 47 ALR 528).CONSIDERATION Campbell Page and Ms Shea oppose the application for an extension of time. I turn to consider each of the matters relevant to the exercise of the Court’s discretion under s 46PO(2) of the AHRC Act.Explanation for the delay Mr Reurich had 60 days to commence the proceeding. As the Termination Notice was dated 25 January 2017, he had until 26 March 2017 to commence the proceeding. Mr Reurich did not lodge his Originating Application with the Court until 21 November 2017, approximately eight months after the 60 day period had expired. Mr Reurich refers in the Amended Application to suffering from depression, anxiety and to being confused. While no evidence is provided by Mr Reurich to substantiate those claims, I am willing, for the purpose of this application, to accept that may well have been so. However, even accepting that to be the case, there are a number of other aspects of Mr Reurich’s evidence which make it difficult to accept his explanation for the delay of eight months, a significant delay particularly in the context of the AHRC Act which allows an applicant 60 days within which to commence a proceeding. They are:(1)first, Mr Reurich was aware of the requirement to commence his proceeding within 60 days of the Termination Notice. He clearly states that to be the case in his affidavit and he did not resile from that position in his submissions to the Court but in fact confirmed it when he said, “I was fully aware, as you know. I know the 60 day rule”;(2)secondly, Mr Reurich deposes that at about the time of the Termination Notice he sent an email to his psychologist, Tamara, “complaining that [his] brain was not working properly” and that he “was forgetting important things and not remembering properly due to stress of [his] job and other factors perhaps”. However, Mr Reurich’s email to Tamara is dated 5 May 2016, which is approximately three and a half months after the Termination Notice was sent to Mr Reurich by the AHRC and after the end of the 60 day period permitted in which to commence a proceeding; (3)thirdly, Mr Reurich’s evidence that his life was busy and disordered at the time does not assist him. His description of the matters that occupied him, including his car breaking down, chasing work, starting work and his computer crashing, are no more than the daily exigencies of life. They are not an acceptable explanation for the delay: Vergara at [12]; and(4)fourthly, it may be the case that Mr Reurich overlooked the Termination Letter and the Termination Notice but, at least by 24 July 2017, the date of the email exchange between Mr Reurich and Justice Connect, it appears that Mr Reurich was aware of the termination of his complaint to the AHRC. In his affidavit, Mr Reurich says that Justice Connect refused to help him file because he was late and refers to having possibly deleted the “Termination email”. Despite that he did not lodge his Originating Application until November 2017, some four months later. There is no explanation provided by Mr Reurich for that further delay.