Seers v Australia Postal Corporation
[2011] FCA 1163
•10 October 2011
FEDERAL COURT OF AUSTRALIA
Seers v Australia Postal Corporation [2011] FCA 1163
Citation: Seers v Australia Postal Corporation [2011] FCA 1163 Appeal from: Application for extension of time; and
Application for leave to appeal: Sharon Lee Seers v Australia Post [2011] FMCA 659Parties: SHARON LEE SEERS v AUSTRALIA POSTAL CORPORATION File number: VID 1046 of 2011 Judge: JESSUP J Date of judgment: 10 October 2011 Legislation: Disability Discrimination Act 1992 (Cth)
Federal Court of Australia Act 1976 (Cth), s 24Cases cited: Decor Corporation Proprietary Limited v Dart Industries Incorporated (1991) 33 FCR 397
Scottv The Human Rights and Equal Opportunity Commission (2007) FCA 2055Date of hearing: 10 October 2011 Place: Melbourne Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 8 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: Ms R Nelson Solicitor for the Respondent: Minter Ellison
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 1046 of 2011
BETWEEN: SHARON LEE SEERS
ApplicantAND: AUSTRALIA POSTAL CORPORATION
Respondent
JUDGE:
JESSUP J
DATE OF ORDER:
10 OCTOBER 2011
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The time for the filing of an application for leave to appeal from the judgment of the Federal Magistrates Court of Australia given on 30 August 2011 be extended to 23 September 2011.
2.The application for leave to appeal be dismissed.
3.The applicant pay the respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 1046 of 2011
BETWEEN: SHARON LEE SEERS
ApplicantAND: AUSTRALIA POSTAL CORPORATION
Respondent
JUDGE:
JESSUP J
DATE:
10 OCTOBER 2011
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
On 23 September 2011, the applicant, Sharon Lee Seers, filed a joint application for an extension of time to file an application for leave to appeal and for the grant of leave to appeal, from a judgment given by the Federal Magistrates Court of Australia on 30 August 2011. The applicant accepted that the Federal Magistrate’s judgment was an interlocutory one. That judgment was given upon an application made on 13 August 2010 by the applicant, alleging contraventions by the respondent, Australia Post, of various sections of the Disability Discrimination Act 1992 (Cth).
In his judgment of 30 August 2011, the Magistrate made the following order:
Pursuant to rule 13.10 of the Federal Magistrates Court Rules 2001, the application filed on 13 August 2010 is dismissed.
Rule 13.10 of the Federal Magistrates Rules provides for the summary dismissal of a proceeding if, amongst other things, the moving party has no reasonable prospect of successfully prosecuting the proceeding. In the penultimate paragraph of his Honour’s reasons, given on 30 August 2011, the Federal Magistrate said:
I have some sympathy for the Applicant who has appeared throughout unrepresented, because of her manifest lack of legal expertise and understanding of the law applying and what is necessary to successfully prove a case of disability discrimination. Nonetheless, I am satisfied, based on the material before me, and indeed the submissions made at court on 18 April 2011, that the Applicant has no reasonable prospect of success and I make that conclusion being mindful of the law applying and the caution expressed by the authorities about summary dismissal.
In the light of the terms of his Honour’s order, and of that paragraph in his Honour’s reasons, I cannot accept the submission – indeed, it might on one view be regarded as a concession – made on behalf of the respondent today that the judgment given by the Federal Magistrate was other than a summary disposition of the proceeding before him, or that it was other than an interlocutory one: see Scottv The Human Rights and Equal Opportunity Commission [2007] FCA 2055.
The application made today by the applicant is based upon the supposition which, for reasons I have given, was quite clearly a correct one, that the judgment below was interlocutory. In those circumstances, leave to appeal is required: Federal Court of Australia Act 1976 (Cth), s 24(1)(a). The applicant was originally advised that the time for filing an application for leave to appeal was 21 days after the date of the order sought to be appealed from. However, under r 35.13 of the Federal Court Rules 2011, the period within which application for leave should be made is 14 days. Pursuant r 1.39 of those Rules, the court has power to extend that time.
The respondent does not oppose the applicant’s application for an extension of time and, given the circumstances explained by the applicant, and the shortness of time involved, I shall accede to that application.
I proceed to deal with the application for leave to appeal. When such an application is made, it is to be disposed of by reference to the two-part test to which the Full Court referred in Decor Corporation Pty Ltd and Anor v Dart Industries Inc (1991) 33 FCR 397 at 398, 399. The first part of the test requires the court to consider whether, in all the circumstances, the decision below is attended with sufficient doubt to warrant its being reconsidered by this court on appeal. Neither the application for leave as filed, nor the affidavit in support, dealt with that question. However, I have heard from the applicant at length this morning, and she has, it seems, given me the benefit of everything which she is able to put in support of her case that the Federal Magistrate was in error to have summarily dismissed her application before him.
Although the application before the Federal Magistrate alleged that the respondent had discriminated against the applicant in a way that would be unlawful under the Disability Discrimination Act, the Federal Magistrate took the view that the substance of the complaint which the applicant wished to ventilate against the respondent was not concerned with discrimination, or with anything rendered unlawful by that Act at all. His Honour said:
None of the allegations contained in the statement of claim (read with the further and better particulars of claim) amount to an allegation that could in any way offend the provisions of the DDA.
His Honour also said:
The Respondent’s submissions claim, with which claim I agree, that the Applicant has failed to identify, either explicitly or by implication, any comparator in the Applicant’s application, statement of claim, or the particulars. I agree with the Respondent when it said that no allegation made by the Applicant that, but for her disability, the Applicant would have been treated differently. When pressed by the Respondent to particularise how the Act applied to her claims the Applicant, in effect, responded by suggesting that it must apply otherwise the Commission would not have entertained her claim under the DDA. This plainly is not a basis for a conclusion that the complaint made over the conduct of the Respondent in respect of her claim for worker’s compensation came within the purview of the DDA. I am satisfied that none of the allegations made by the Applicant against the Respondent amount to allegations of disability discrimination.
Nothing put to me by the applicant this morning has given the slightest suggestion that his Honour misunderstood the nature of the case which the applicant then sought to conduct.
Although it appears, from the passages to which I have referred, that the Federal Magistrate approached the question before him largely by reference to the applicant’s Statement of Claim and particulars, I have today heard from the applicant at length with respect to the nature of her complaint against the respondent, and I have not been able to perceive anything in that complaint which would cast any doubt upon the conclusion reached by the Federal Magistrate. The complaints which the applicant desires to have heard in court are manifestly strongly felt but, in my view, the Federal Magistrate was correct to have reached the conclusion that they do not invoke the discrimination provisions of the Disability Discrimination Act.
I am therefore not satisfied that the judgment below is attended by sufficient doubt to warrant it being considered by this court, and must in the circumstances reject the application for leave to appeal.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup. Associate:
Dated: 20 October 2011
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