Ryan v Presbytery of Wide Bay Sunshine Coast

[2001] FMCA 12

FEDERAL MAGISTRATES COURT OF AUSTRALIA

Name:                   MICHAEL WALTER RYAN and

THE PRESBYTERY OF WIDE BAY SUNSHINE COAST  A PRESBYTERY OF THE           PRESBYTERIAN CHURCH OF QUEENSLAND

File No: BZ125 OF 2000

[2001] FMCA 12  

UNLAWFUL DISCRIMINATION – Application out of time – principles to be applied in considering extension of time – Disability Discrimination Act 1992 s15(2)(c) – Human Rights and Equal Opportunity Commission Act 1986 ss 46PHB, 46PO(2) – McQueen and Others v Frankelton (1910) 9C LR673 considered; Greek Orthodox Comm of S.A. Inc v Emogenous Applied

Applicant:MICHAEL WALTER RYAN             

Respondent:             THE PRESBYTERY OF WIDE BAY SUNSHINE    COAST

File No:BZ125 OF 2000

Delivered on:         22 February 2001    

Delivered at:          Brisbane

Hearing Date:       22 February 2001

Judgment of:           Baumann FM

REPRESENTATION:

Applicant in person

Counsel for the Respondent:       Mr P Favell                

Solicitors for the Respondent:      J Thomson of Crouch & Lynton

ORDERS:

1.That the APPLICANT’s application is dismissed.

BY CONSENT THAT:

2.On the undertaking given by MICHAEL WALTER RYAN to this Court as set out in the written undertaking signed by him, that application number BZ76 of 2001 in this Court be discontinued, the APPLICANT, MICHAEL WALTER RYAN be ordered to pay costs in the sum of $10,000.  The execution of such order for costs be stayed unless MICHAEL WALTER RYAN breaches his undertaking given to this Court.

3.The Notice of Motion by the APPLICANT dated 22 January 2001 be dismissed.

IN THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BRISBANE REGISTRY

No BZ125 of 2000

MICHAEL WALTER RYAN

Applicant

And

THE PRESBYTERY OF WIDE BAY SUNSHINE COAST

A PRESBYTERY OF THE PRESBYTERIAN CHURCH OF QUEENSLAND

Respondent

REASONS FOR DECISION

INTRODUCTION

1.I have before me an application filed on 12 September 2000 by MICHAEL WALTER RYAN, who I will hereafter call “Reverend Ryan”, filed initially in the Federal Court of Australia as a result of the termination of a complaint made to the Human Rights and Equal Opportunity Commission.  The respondent named in the initial application is described as the Presbytery of Wide Bay/Sunshine Coast, a presbytery of the Presbyterian Church of Queensland.  A conditional notice of appearance was filed on 9 October 2000.  There has been some material filed to suggest that the appropriate respondent should actually be the Presbyterian Church of Queensland and for the purposes of these reasons I will refer to the respondent generically as “the Church”.

HISTORY

2.The history of this matter so far as the Court is concerned has been brief but the history of the dispute has been quite lengthy and complex. So far as the proceedings in this Court are concerned, an initial complaint was lodged with the Human Rights and Equal Opportunity Commission on 20 March 2000 and as a result of the notice of termination delivered by the President of that Commission on 26 May 2000, an application was filed in the Federal Court of Australia on 12 September 2000. By order of Cooper J it was remitted to the Federal Magistrates Court. Properly, the application to the Court in form 167 indicated at paragraph 15 that the applicant, sought an extension in which to bring his application to the Court as it was outside the 28 day period prescribed by section 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (“The Act”).

3.For the sake of completeness, and bearing in mind that I am delivering these reasons ex tempore today in order that all parties know the future conduct of the proceedings, I will give a potted history of the complaint which lead to the letter to the Human Rights and Equal Opportunity Commission.  Essentially, Reverend Ryan, who is now 70 years of age, was ordained as a Minister of the Presbyterian Church in 1983.  From December 1985 to July 1994 he was a Minister of Scots Presbyterian Church in Bundaberg.  It appears from his material that in approximately July 1992 a dispute arose between some members of Scots Presbyterian Church and Reverend Ryan that caused a petition to be lodged against him and presented to the elders in July 1992.  I make no findings about any of those issues.

4.As a result of the petition, a committee of the Church decided - and this is referred to in paragraph 48 of Reverend Ryan's affidavit

“To sever the pastoral tie with Reverend Ryan”.

This was clearly a very significant issue to the applicant and that can be shown by his statement at paragraph 48 of his affidavit that he felt that ”to sever the pastoral tie equates with excommunication”.

5.Further discussions took place at different levels of the Church and with different officers whereupon ultimately the applicant says under severe stress he resigned from his position with Scots Presbyterian Church in Bundaberg.  The nature of that resignation is in dispute and for the purposes of these reasons I will refer to the event as demissioning.  What appears to have occurred after the demissioning of Reverend Ryan were various appeals and petitions within the court structure of the Church.  He prosecuted a successful workers' compensation claim in which he was ultimately found by the Workers Compensation Board to have sustained a 25 % loss of bodily function as a permanent, partial disability.  He was, he acknowledges, compensated for that loss.  There were proceedings before the Supreme Court of Queensland commenced by writ in that Court, seeking damages for personal injuries arising from his demissioning.  He was legally represented during the course of those proceedings. 

6.The Supreme Court proceedings were ultimately resolved with Reverend Ryan discontinuing those proceedings.  It seems clear that he did so at the time as a result of the terms of a Deed of Settlement entered into between the Church and Reverend Ryan bearing date, 29 September 1997 in which at paragraph 4 the deed provided that the terms of the settlement would operate as a bar against further proceedings relating to his employment or any actions he may have relating to his dismissal, personal injuries or defamation. 

7.Reverend Ryan, in his submissions to me today, and he alludes to this in his material, says that the Deed again was entered into at a time of great stress to him.  I do regard, however, the Deed as a significant piece of evidence before me in terms of the history of the matter.  There was a complaint made by Reverend Ryan to the Queensland Industrial Relations Commission which was not pursued after a conference on 22 October 1996.  There appears to have been two letters of complaint raised with the Anti-Discrimination Commission of Queensland; one on 20 November 1997 and then again on 4 May 1999. 

8.Annexure “D67” to the affidavit of Reverend Ryan filed in this Court on 12 September, is a letter of 22 July 1999 under the hand of Commissioner Walters, the Anti-Discrimination Commissioner for Queensland, in which she explained the reasons why the Anti-Discrimination Commission of Queensland would not accept the complaint raised by Reverend Ryan out of time.  I do not propose to recite the reasons that the complaint under the Anti-Discrimination Act 1991 (Queensland) was not accepted save to say that many of those reasons were relied upon by the Church as reflective of the difficult history in this matter.

9.For completeness, I should also note that there have been complaints made by Reverend Ryan to the Department of Fair Trading and to the Australian Securities Commission.  I should indicate that this Court, exercising the jurisdiction it does, does not have jurisdiction to deal with the allegations generally made by Reverend Ryan in his material of:

(a)lack of procedural fairness by the church;

(b)non observance of the rules of natural justice;

(c)alleged breaches of the Corporations code;

(d)breach of the rules and regulations of the Presbyterian Church of Queensland; and

(e)other issues which Reverend Ryan says amounts to a conspiracy of members of the church as against him.

ISSUE

10.The issue for me today is to consider whether it is appropriate in all the circumstances that I allow the application filed on 12 September 2000 to proceed where it has been filed outside the time limit imposed by section 46PO(2) of the Act.

11.In considering the exercise of my discretion under this provision, I must not only consider the reason for the delay between the termination of the complaint on 26 May 2000 and the filing of the application on 12 September 2000, but I believe it is also proper, in accordance with longstanding principle, that I should also consider the prospects of success of any application for unlawful discrimination bought by Reverend Ryan; the delay in lodging the complaint; any relevant history, and any prejudice which may be visited upon the respondent should the application be entitled to proceed. 

EVIDENCE AND FINDINGS

12.In respect of the delay in lodging the application, Reverend Ryan relies upon exhibit 2, which was an affidavit sworn 25 October 2000; an affidavit he was directed to file by Cooper J, in which essentially he says that the delay related to delays in obtaining legal aid.   It seems to me, as I will further indicate shortly, that Reverend Ryan has shown a capacity to undertake significant detailed research and investigation, and an ability to properly articulate what has been a long and convoluted dispute.  I do not think that, of itself, the inability to obtain legal aid should have prevented the filing of the application within time.  If that was, however, the only issue that I had to consider, the delay of just over three months between the termination letter and the date of filing would not have itself have been determinative of this matter.  It seems to me, however, that the totality of the evidence on the other issues, which I am now going to mention, are quite persuasive.

13.The  Queensland Anti-Discrimination Commissioner, and in fact the President to the Human Rights and Equal Opportunity Commission in the notice of termination, both referred to the fact that the complaint has been lodged significantly after the date upon which the alleged unlawful discrimination took place.  Reverend Ryan explains this by saying that, although he was demissioned in November 1993, and that the effect of that demission took place in mid-1994, it was not until a telephone conversation between his wife and a senior member of the church in November 1997 that he was aware of the reasons for his demission.   Such conversation appears to have taken place after he had already commenced his Workers Compensation claim; had at least pursued to conciliation stage his rights in the Industrial Relations Commission, and had commenced and settled his Supreme Court proceedings. 

14.I find it hard to accept, on the face of the material, that he did not have a fair idea of the reasons why he was asked - or he says, forced to resign. - well prior to 1997.  The relevant history of the matter is set out in the voluminous material filed in the Court.  It includes an unpublished book of Reverend Ryan, dealing with the issues since at least 1993 between the church and Reverend Ryan.  Again, it seems to me that if Reverend Ryan had seriously wished to pursue, as an alternative, a right for a remedy under any of the relevant anti-discrimination legislation, he had more than a reasonable opportunity to do so. 

15.In terms of the prejudice to the Church, one of the issues raised by Mr Favell is that the action is ill-founded.  He says that it is relevant, when I consider the exercise of my discretion, that I should consider that the applicant's application demonstrates no reasonable cause of action.  Reverend Ryan was alerted to this issue, and in his affidavits he relied upon the High Court decision in McQueen And Others – V -- Frankelton (1910) 9 CLR673; To show, in effect, that he was an employee of the Church, and that the Court has the jurisdiction to consider the church's rules and operation of those rules.  Now, while some remarks in the decision referred to the “consensual compact” existing between members of the Church in Queensland, the decision, really, is about the characterisation of the Church as a voluntary association. 

16.I was directed to a recent decision of the Full Court of the Supreme Court of South Australia, Greek Orthodox Community of South Australia Inc and Emogenous, (unreported decision of 5 October 2000).  In that decision, the Court considered the decision of McQueen and also the decision of Wright J, President of the Industrial Relations Commission of New South Wales, in the matter of Knowles and the Anglican Church Property Trust, Diocese of Bathurst (1999) 89 IR47, when the learned President was concerned with a case of alleged unfair dismissal by a priest of the Anglican church.  He concluded that the relationship with the church was a religious one, based on consensual compact to which the parties were bound by their shared faith, based on spiritual and religious ideas, and not based on common law contract. 

17.The South Australian Full Court found similarly in its decision. This presents, in my view, a clear difficulty for Reverend Ryan in this case where he alleges that he was unlawfully discriminated in his employment on the grounds of his acknowledged disability (stress related disorder) at the time, this was his stress related disorder, at the time of his demission in November 1993. It would seem that he seeks to rely upon Section 15(2)(c) of the Disability Discrimination Act 1992. I find that he will have some difficulty in establishing, as a matter of law, that he was an employee of the Church at the time.

18.The totality of the evidence before me persuades me that Reverend Ryan, whose submissions and correspondence reflect an almost obsessive attention to detail and research, should have be aware of the time limits available had he wished to pursue this form of remedy. It seems that he seeks another forum to have his clearly, strong held concerns about the church ventilated. This is not the sole or even dominant purpose of Courts who are vested by the legislation with the power to determine disputes between parties. The intention of the legislation, when one considers the timing imposed by Section 46PHB and Section 46PO(2) of the Act, is that persons with complaints about discrimination should, if they seek the remedies available to them under the Act, pursue them diligently.

19.Reverend Ryan appears, on the evidence, to have adopted this forum as an avenue of last resort for his concerns about the events of November 1993 and thereafter. This is after he has successfully been compensated as a result of a claim for workers' compensation; has been compensated for damages which he sought to secure by reason of the Supreme Court proceedings and after he had pursued, on at least two occasions, a claim of discrimination under the State legislation. I do not, in all the circumstances, regard it as an appropriate exercise of my discretion to grant an extension of time as required by Section 46PO(2) and in the circumstances the applicant's application filed 12 September 2000 is, therefore, dismissed.

20.Mr Favell has made an application for Costs for these proceedings.  He estimates the costs to be $10,000.00.  Whilst I have the power to award costs, the nature and intent of anti-discrimination legislation could be thwarted if citizens were unreasonably inhibited from prosecuting bona fide, even ultimately unsuccessful claims.  He also seeks to proceed with his motion for an order restraining Reverend Ryan from commencing any further actions in this Court against the Church and its officers and members.  I have expressed some reservations about my jurisdiction to make such an order – certainly in the absence of finding that Reverend Ryan is a vexatious litigant, which finding I am not being urged to make today.  I also note that Reverend Ryan has informed me that, as I have dismissed his application, be can’t envisage any other proceedings.  He understands other attempts are likely to result in the plea of the operation of the restraint in the Deed of Settlement.  That is not a matter for me today.  Reverend Ryan says he is on a pension and would find paying the costs claimed in a lump sum almost impossible.  The parties wish to have some discussions about this aspect of the matter and I shall, as a result, give them that opportunity.

________________________________________________________
I certify that the preceding (20) paragraphs are a true and correct copy of the Reasons for Judgment of Federal Magistrate Baumann

Associate

Date: