Usher v Human Rights and Equal Opportunity Commission

[1999] FCA 394

FEDERAL COURT OF AUSTRALIA

Usher v Human Rights & Equal Opportunity Commission [1999] FCA 394

ANGELA MARIEN USHER v HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
QG 147 of 1998

DOWSETT J
26 MARCH 1999
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 147 OF 1998

BETWEEN:	ANGELA MARIEN USHER Applicant
AND:	HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION Respondent
JUDGE:	DOWSETT J
DATE OF ORDER:	26 MARCH 1999
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.        The application for judicial review is dismissed.

2.        The applicant is to pay the respondent’s costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 147 OF 1998

BETWEEN:	ANGELA MARIEN USHER Applicant
AND:	HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION Respondent

JUDGE:	DOWSETT J
DATE:	26 MARCH 1999
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. From 1986 until the early 1990s the present applicant was employed by Qantas in that company’s catering facility.  In 1994 her employment was terminated.  In 1996 the applicant applied to the Queensland Anti-Discrimination Commission alleging that she had been the subject of sexual discrimination whilst employed by Qantas.  She initially alleged that this occurred from early 1993 through to February 1994.  At a later stage in the quite lengthy time during which this matter has been the subject of investigation, this allegation was amended to allege discrimination from late 1992 through to early 1993. 

2. Her formal complaints, which were the subject of investigation by the Human Rights and Equal Opportunity Commission, were contained in a letter which was faxed to that Commission in March 1997 and in a statement taken by the Queensland Legal Aid Office and referred to by the applicant as the “Andrew Brown statement”, a reference to the employee of the Legal Aid Office who took it from her.  It is not clear how the matter was transferred from the Queensland body to the Federal body, but it does not matter for present purposes.

3. The Andrew Brown statement was forwarded to the Human Rights and Equal Opportunity Commission in Sydney on 29 July 1997. On 5 September 1997 an officer of the Commission responded, pointing out that the complaint was of conduct which had occurred more than two years previously and that in those circumstances, there was a discretion conferred by section 52.2(c) of the Sex Discrimination Act 1984 (Cth) to discontinue any investigation. The officer sought submissions on this point and also asked for clarification concerning the nature of the allegations. It seems that at the same time, the Commission wrote to Qantas and to various employees who had been named by the applicant, seeking their submissions with respect to the question of delay and also as to the substantive matters of complaint.

4. On 21 January 1998 the delegate of the Acting Sexual Discrimination Commissioner wrote to the solicitors for the applicant indicating that she had exercised her discretion pursuant to section 52 to determine the inquiry.  The reasons given were as follows:

   “I find that there is insufficient evidence of good cause for the delay in lodgment of this complaint.  I further find that the delay in lodgment has prejudiced the investigation of this complaint through diminishing the recollection of events by relevant parties, including the complainant and her witness.”

5. The applicant, as was her right, asked that the matter be referred to the President of the Commission for reconsideration.  Sir Ronald Wilson considered the matter and confirmed the decision.  In an accompanying letter, he addressed in some detail the various problems arising out of the allegations and out of the delay, apparently with a view to explaining to the applicant in a very humane way the reasons for his decision.

6. There is, as far as I can see, nothing about his reasons which could be the subject of any complaint.  On their face they appear to be appropriate and proper reasons for the decision to which he came.  The applicant, however, does not complain of the content of the reasons.  She alleges that the Commission, and presumably the President, were motivated by improper considerations or fraud in coming to this conclusion.  She alleges that Qantas paid money to the Commission to prevent the applicant's complaint going to hearing and that such decision was made as a result of the receipt of this money.

7. The applicant has frankly and fairly conceded that she has no evidence of this and says that it is an inference which she draws from the circumstances.  She has also complained orally that the respondent Commission failed to investigate her complaints in a serious way.  Again, this appears to be an inference which she draws rather than an allegation of any specific, primary facts.  Further, she asserts that Sir Ronald Wilson, in his involvement in the matter, has told certain lies.  She refers particularly to paragraphs 30, 32 and 33 of a document which appears on the Court correspondence file, although its provenance is not clear.  These paragraphs allege specific lies by Sir Ronald.  Again, the allegations appear to reflect the applicant’s views rather than facts.  

8. There can be no doubt that the applicant is dissatisfied with the way in which the Commission has dealt with her complaint.  This dissatisfaction, she concedes, is at least in part attributable to the fact that the Commission appeared to treat her complaint seriously for some time, leading her to believe that she would receive satisfaction, and then discontinued the inquiry in circumstances which, she feels, did not justify such action.

9. I am not presently concerned with the merits of her complaint to the Commission but rather with the decision by the Commission, as confirmed by the President, to discontinue that inquiry.  That decision was based upon relevant considerations, and I am unable to reach the conclusion asserted by the applicant that it was tainted in any way by fraud, whether motivated by financial considerations or otherwise.  I am unable to conclude that Qantas paid any money to the Commission in circumstances which would lead to an inference that such payment was related to this case.  Indeed, as far as I am aware on the material, there is no reason to believe that Qantas paid any money to the Commission.  I also see no basis for inferring that Sir Ronald Wilson told lies.  He obviously expressed opinions, but that was his job.  I accept that the applicant disagrees with his conclusions.  She has every right to do so, but that does not lead me to the conclusion that he has told lies. 

10. As to the adequacy of the investigation by the Commission, it seems that it attempted to make preliminary inquiries but was concerned by the delay in the making of the complaint, which consideration was eventually decisive in its resolution of the matter.  That was a decision which was within its discretion, and I see no reason to believe that the exercise of the discretion miscarried, either initially or when the matter was before the President.  In the circumstances, the application for judicial review will be dismissed.

11. I order the applicant to pay the respondent's costs.  I consider that it would be inappropriate in the circumstances for the order to be enforced.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:  26 March 1999

The Applicant appeared in Person:
Solicitor for the Respondent:	Human Rights and Equal Opportunity Commission
Date of Hearing:	26 March 1999
Date of Judgment:	26 March 1999