VAENUKU v Terrigal Trojans Rugby Club Inc
[2010] FMCA 701
•14 September 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VAENUKU v TERRIGAL TROJANS RUGBY CLUB INC & ANOR | [2010] FMCA 701 |
| PRACTICE & PROCEDURE – Extension of time to commence proceedings pursuant to s.46PO of the Australian Human Rights Commission Act 1986 – decision made without oral hearing. |
| Racial Discrimination Act 1975, ss.9, 18C Australian Human Rights Commission Act 1986, ss.46PH, 46PO Acts Interpretation Act 1901, s.36 Federal Magistrates Court Rules 2001, r.15.03 |
| Ingram-Nader v Brinks Australia Pty Ltd (2006) 151 FCR 524 Ferrus v Qantas Airways Ltd [2006] FCA 812 Phillips v Australian Girls’ Choir & Anor [2001] FMCA 109 Drew v Bates [2005] FMCA 1221 |
| Applicant: | UNUOI VAENUKU |
| First Respondent: | TERRIGAL TROJANS RUGBY CLUB INC |
| Second Respondent: | STEPHEN HENRY EDWARDS |
| File Number: | SYG 865 of 2010 |
| Judgment of: | Cameron FM |
| Hearing date: | Not applicable |
| Date of Last Submission: | 31 August 2010 |
| Delivered at: | Sydney |
| Delivered on: | 14 September 2010 |
REPRESENTATION
| Solicitors for the Applicant: | Gillis Delaney Lawyers |
| Solicitors for the First Respondent: | Nash Allen Williams & Wotton |
| Solicitors for the Second Respondent: | Brazel Moore Lawyers |
ORDERS
The time for filing the application initiating this proceeding be extended to 21 April 2010.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 865 of 2010
| UNUOI VAENUKU |
Applicant
And
| TERRIGAL TROJANS RUGBY CLUB INC |
First Respondent
| STEPHEN EDWARDS |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 21 April 2010 the applicant filed the application commencing this proceeding. He alleges against the respondents conduct in contravention of the Racial Discrimination Act 1975 (“RDA”). Annexed to the application was, amongst other things, a notice of termination issued by the Australian Human Rights Commission (“Commission”) pursuant to s.46PH(2) of the Australian Human Rights Commission Act 1986 (“AHRC Act”) concerning a complaint of unlawful discrimination under the RDA which the applicant had made against the respondents. The notice of termination is dated 10 February 2010.
This proceeding is brought to the Court pursuant to s.46PO of the AHRC Act which, amongst other things, provides that such applications must be made within sixty days after the date of issue of a notice under s.46PH(2) or within such further time as the Court allows. Assuming that the notice of termination was issued on the date it bears, the applicant had until 12 April 2010 to file the application commencing these proceedings: s.36(2) Acts Interpretation Act 1901. On that basis the proceeding was commenced nine days out of time.
Application in a case
By an application in a case filed on 13 August 2010 the applicant seeks an order that the time allowed for making the application to the Court be extended up to and including 21 April 2010. In support of that application the applicant relies on the affidavit of one of his solicitors, David Eric Collinge, sworn on 13 August 2010.
Mr Collinge deposes that on or about 13 April 2010 he directed his secretary, Ms Larkins, to make inquiries of the Commission as to the status of the complaint made by the applicant. He deposes that, the next day, Ms Larkins said to him that the Commission had told her that they had sent correspondence in respect of the complaint in February 2010. Mr Collinge caused a search for the correspondence to be conducted but it was not located and later that day he instructed Ms Larkins to telephone the Commission to ask about the outcome of the complaint and to request a copy of their February 2010 correspondence. He deposes that a short time later Ms Larkins said to him that the complaint had been terminated by a notice dated 10 February 2010 and that she would obtain a copy from the Commission.
Mr Collinge deposes that he immediately commenced drawing an application in respect of the applicant’s complaint for filing in the Court and that this was delivered to his law stationer that day. However, he deposes, a copy of the notice of termination was not attached to the application because, at that time, he did not have a copy of it. However, he deposes that at some time on 14 April 2010 Ms Larkins received a copy of the notice of termination from the Commission.
Mr Collinge deposes that on 16 April 2010 his law stationer contacted him to advise that his application had been rejected by the Court’s registry because the notice of termination had not been attached to it. He deposes that on an unspecified date he caused a copy of the notice of termination dated 10 February 2010 and received on 14 April 2010 to be sent to his law stationer for attachment to the application.
It is to be observed that the application filed on 21 April 2010 is dated 14 April 2010 and was signed by Mr Collinge on behalf of Mr Gillis, who is the solicitor on the record.
Submissions
In support of his application in a case the applicant submitted that the extension sought was a mere eleven [sic] days, that there was a reasonable explanation for the delay in bringing the application, that there was no prejudice to any respondent and that he has, in any event, an arguable case. He also submitted that if the day of issue of the notice of termination was taken to be the date in April when it was sent at the request of his solicitors then the application was actually filed within the time limit provided by s.46PO(2). As will become apparent, it is not necessary to deal with the latter argument.
The applicant submits that the delay resulted from administrative failures which caused the termination notice dated 10 February 2010 to not be received when it was apparently originally sent and that once he learned of the termination of his complaint he acted expeditiously to file an application with the Court. Further, by reference to what Cowdroy J said in Ingram-Nader v Brinks Australia Pty Ltd (2006) 151 FCR 524, the applicant submitted that the only period relevant for consideration of prejudice is the period following the expiry of the period prescribed by s.46PO(2) and that the minor delay in filing his application could not have been the cause of any prejudice to the respondents.
As to the merits of the claim, the applicant simply submitted that there was a strong prima facie case in respect of conduct contrary to ss.9 and 18C of the RDA.
The first respondent submitted that the mere absence of prejudice was not sufficient to justify an extension of time and the applicant had failed to identify any matter which indicated that his substantive claim was not without merit. The first respondent submitted that the applicant failed to establish merit in the substantive case.
The first respondent submitted that the Court should be positively satisfied that it is proper to extend time before doing so, referring to Ferrus v Qantas Airways Ltd [2006] FCA 812.
Similarly, the second respondent submitted that the Court should not grant an extension of time unless positively satisfied that it is proper to do so. However, given the relatively short period of delay and the explanation given by the applicant, the second respondent advised in his written submissions that he neither consented to nor opposed a grant of an extension of time. Nevertheless, the second respondent disputed the applicant’s assertion to have a strong prima facie case in respect of the alleged contraventions of ss.9 and 18C of the RDA and, by way of example, submitted that even if the alleged contraventions were to be proven, the applicant had identified no foundation for his claim to damages “for the impairment of his economic capacity”.
Consideration
The parties consented to a decision on the application in a case being made without an oral hearing (vide: r.15.03 Federal Magistrates Court Rules 2001).
In Phillips v Australian Girls’ Choir & Anor [2001] FMCA 109 at [10], McInnis FM set out the principles to be applied in exercising the Court’s discretion whether to grant an extension of time in a human rights application. The principles as summarised by his Honour were 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 pre-condition 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 pre-condition (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 p 287)
5. The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic at p 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 p 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 (Wedesweiller v Cole (1983) 47 ALR 528).
In Ferrus v Qantas Airways Ltd at [19] and [20], Collier J quoted the judgment of McInnis FM in Phillips v Australian Girls’ Choir with approval and her Honour also agreed with Phipps FM’s distillation of those seven principles (in Drew v Bates [2005] FMCA 1221) into three matters, namely:
a)explanation for delay;
b)any prejudice to the respondent; and
c)whether the applicant has an arguable case.
The applicant has demonstrated to my satisfaction that the delay in filing the application commencing these proceedings arose out of some administrative error whether at the Commission, Australia Post, an internet email provider or in the offices of his solicitors and that there is no reason to conclude that he sat on his hands in relation to his rights arising out of the termination of his complaint to the Commission. Indeed, it was only after the applicant’s solicitors pursued the Commission for advice on the outcome of his complaint that the existence of the notice of termination came to light. Once the applicant’s solicitors became aware that a notice of termination had been issued, they acted with appropriate alacrity to obtain a copy of the notice of termination and to commence these proceedings. Although it might be concluded that there was some delay between receipt of the notice of termination and its provision to the law stationers retained by the applicant’s solicitors, I am willing to infer that this resulted from the sort of administrative inefficiencies to which all organisations can be subject. I am satisfied that a reasonable explanation for the delay in commencing this proceeding has been provided.
The respondents have adduced no evidence to suggest that either of them has been prejudiced by the delay and it would be surprising that a delay of nine days could be the cause of material prejudice in this case. There is no reason to conclude that the respondents have, in fact, been prejudiced by the delay.
Although the applicant’s submissions on the merit of his claims against the respondents did not descend into any detail, his points of claim filed on 14 July 2010 do. It is arguable that allegations made in the points of claim, if proved, would amount to contraventions of the RDA which could sound in damages and other orders.
Conclusion
For these reasons, I am satisfied that it is proper to extend the time for the bringing of this proceeding to the date the initiating application was filed.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 14 September 2010
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