Vel, Peter v The Human Rights and Equal Opportunity Commission

[1997] FCA 1145

FEDERAL COURT OF AUSTRALIA

PRACTICE & PROCEDURE - application for leave to appeal from an interlocutory judgment - prospects of success - whether irrelevant considerations were taken into account or relevant considerations overlooked.

Federal Court of Australia Act 1976, O 52 r 10(2)(b)

Hall v Nominal Defendant (1966) 117 CLR 423, referred to
Dousi v Colgate Palmolive Pty Ltd (1987) 9 NSWLR 374, referred to
Federal Airports Corporation v Aerolineas Argentinas & Ors  (1997) 147 ALR 649,
referred to
Jess v Scott (1986) 12 FCR 187, referred to
House v R (1936) 55 CLR 499, referred to
Gronow v Gronow (1979) 144 CLR 513, referred to
Kalaba v R , unreported, FCA, (Finn J), 13 September 1996, referred to
Wati v Minister for Immigration and Ethnic Affairs, unreported, FCA (Davies J) 4 April 1997, referred to

PETER VEL v THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION and COMMONWEALTH OF AUSTRALIA
NG 448 OF 1996

LEHANE J
SYDNEY
31 OCTOBER 1997

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 448  of   1996

BETWEEN:

PETER VEL
APPLICANT

AND:

THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
FIRST RESPONDENT

COMMONWEALTH OF AUSTRALIA
SECOND RESPONDENT

JUDGE(S):

LEHANE J

DATE OF ORDER:

31 OCTOBER 1997

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1. The applicant’s motion is dismissed.

1. No order as to costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 448 of 1996

BETWEEN:

PETER VEL
APPLICANT

AND:

THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
FIRST RESPONDENT

COMMONWEALTH OF AUSTRALIA
SECOND RESPONDENT

JUDGE(S):	LEHANE J
DATE:	31 OCTOBER 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT

By his notice of motion filed on 12 September 1997 Mr Vel seeks leave, under O 52 r 15(2) of the Federal Court Rules, to file and serve a notice of appeal from an order made by Branson J on 16 April 1997. By that order her Honour refused an application for an extension of time within which Mr Vel might lodge an application for an order of review, under the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act), of a decision of the first respondent (the Commission) dated 31 December 1990. The Commission took no part in the hearing of the motion; the second respondent (the Commonwealth), however, submitted that the Court should refuse the order which Mr Vel seeks.

There is a preliminary point. The Commonwealth submitted that an order refusing an extension of time under s 11(1)(c) of the ADJR Act is an interlocutory order, so that there is no appeal as of right from such an order; Mr Vel requires leave to appeal and, because of the lapse of time, he may apply for leave only if he is allowed further time under O 52 r 10(2)(b). The Commonwealth’s submission is, I think, correct: Hall v Nominal Defendant (1966) 117 CLR 423 at 440, 441 and at 444, 445; Dousi v Colgate Palmolive Pty Ltd (1987) 9 NSWLR 374 at 378, 379; and in Federal Airports Corporation v Aerolineas Argentinas & Ors  (1997) 147 ALR 649 at 665-667 the Full Court proceeded on the basis that an order under s 11 is interlocutory in character. The Commonwealth, however, was content that I should deal with the motion as if it were an application under O 52 r 10(2)(b) and also (I take it) for leave to appeal under O 52 r 10(2)(a). The Commonwealth submitted - in my view correctly - that in the circumstances the issues raised by such an application would be similar to those which arise on an application for an extension of time under O 52 r 15(2).

Mr Vel appeared on the motion in person; his command of English is limited and he made submissions (as he did before Branson J) through an interpreter.  He is an Australian citizen of Greek origin.  He was employed by the Department of Defence (that is, by the Commonwealth) between 1977 and 1985 (there is an issue between Mr Vel and the Commonwealth as to whether that employment was continuous or whether, on the other hand, it was broken by resignation and re-engagement).  In 1986 Mr Vel complained to the Anti-Discrimination Board of New South Wales of treatment of him by the Department of Defence which infringed the Racial Discrimination Act 1975. He claimed to have been discriminated against on the grounds of race. In 1988 Mr Vel’s complaint was referred to the Commission. On 14 June 1989 Einfeld J, then President of the Commission, dismissed an application by the Department for summary dismissal of the complaint under s 25X of the Racial Discrimination Act.  His Honour gave lengthy reasons dealing with the various particulars of Mr Vel’s complaint and held that the Department had not established that the complaint was without substance.  His Honour directed that the complaint be heard by a Commissioner.

Mr Vel’s complaint ultimately was heard over eight days in the latter part of 1990 by the then President of the Commission, Sir Ronald Wilson.  On 31 December 1990 the President delivered reasons for his decision to dismiss the complaint.  Mr Vel received a copy of the decision on 8 January 1991. 

Such a decision is one made under an enactment and is reviewable under the ADJR Act. Mr Vel, however, did not apply for an order of review under the ADJR Act until 4 June 1996. But he did not accept the President’s decision: he made it clear immediately that he was dissatisfied with the decision and has continued, throughout the intervening period, to seek redress through a number of avenues (described in the reasons for judgment of Branson J), but fruitlessly. It is not necessary to describe again the history of Mr Vel’s attempts to have the decision of the President, dismissing his complaint, reviewed: Branson J found that, in the circumstances, Mr Vel had shown an acceptable explanation for the delay in the institution of proceedings under the ADJR Act. Her Honour concluded, however, that Mr Vel had not shown that it would be fair and equitable to grant him the extension of time which he sought. That was so principally because of “obvious prejudice” which the Commonwealth would suffer as the result of an extension. The complaint by Mr Vel involved a series of claims, some relating to events which occurred before 1980. At the hearing before the President the Commonwealth relied on evidence from 13 persons, 12 of whom were then employed by the Department: of those, only one remained in the Department’s employ and the Department had been able to contact only four, two of whom had expressed reservations about their present recall of events concerning Mr Vel. If Mr Vel were to succeed in having the decision of the President set aside, the consequence would almost inevitably be a re-hearing of his complaint; given the lapse of time and the circumstances proved by the Commonwealth, the Commonwealth would be at a serious disadvantage should a re-hearing of the complaint occur.

Mr Vel, in affidavits read on his motion and in submissions, concentrated on two broad matters: one was his contention that the Commission did not deal fully or adequately with his complaint in all its aspects; the other was what he described as “new evidence”.  That arises in the following way.  Mr Vel had lodged with the Commission, for the purposes of the strike-out application before Einfeld J, a number of documents.  In circumstances about which there appears to be some contention between Mr Vel and the Commonwealth, certain of those documents were returned to Mr Vel shortly before his complaint was heard by Sir Ronald Wilson and, apparently, some at least of the documents returned were tendered again in the proceedings before Sir Ronald.  However, upon inspecting, in 1995, the files of the Commission relating to his complaint, following an application under the Freedom of Information Act 1982, Mr Vel claims to have discovered that the Commission still held a number of documents which he identified as five green folders comprising exhibit A2 in the proceeding before Einfeld J and another bundle comprising exhibits A3 to A42. According to Mr Vel, those were not among the documents returned to him before the hearing of his complaint; had they been returned he would have tendered them; because he did not have the opportunity to tender them it is at least likely that the President did not take them into account. Mr Vel contends that he should have the opportunity, upon a further hearing of his complaint, to tender all that material.

The evidence upon which Mr Vel seeks to rely is not new in the sense that it has emerged since the hearing before Branson J; on the contrary, Mr Vel’s inspection of the files took place well before the hearing of his application for an extension of time to seek an order of review under the ADJR Act and the matters which Mr Vel put to me were, clearly enough, also put to Branson J. Her Honour did not discuss in detail matters going to the strength, or otherwise, of any case which Mr Vel might make in support of a claim that the decision of the President be set aside. Rather, as I have mentioned, her Honour held that in the circumstances it would not be fair and equitable to grant an extension of time because of the obvious prejudice which the Commonwealth would suffer if an application for review were allowed to proceed.

The Commonwealth was prepared to accept that, given Mr Vel’s difficulties with the English language and with the procedures of the Court, the Court might regard as adequately explained his delay in seeking an extension of time within which to appeal (or to seek leave to appeal).  The Commonwealth submitted, however, that Mr Vel had not in the circumstances made a case “upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served” (Jess v Scott (1986) 12 FCR 187 at 195). Particularly, Mr Vel had not, it was said, indicated with any clarity the existence of grounds upon which an appeal from the decision of Branson J might succeed: especially in circumstances where the decision was one involving the exercise of a broad discretion (House v R (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513). No error of principle affecting her Honour’s decision, it was submitted, had been or could be identified. Accordingly, Mr Vel’s proposed appeal lacked any significant prospect of success; accordingly no extension of time should be granted (Kalaba v R , unreported, FCA, (Finn J), 13 September 1996; see also Wati v Minister for Immigration and Ethnic Affairs, unreported, FCA (Davies J) 4 April 1997).  A similar result would follow, applying the principles accepted by the Full Court in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-400, if the application were treated as one for leave to appeal.

The substance of Mr Vel’s argument is that, in the documents to which I have referred, he has material which could be placed before the Commission on a re-hearing of his complaint and which might result in a favourable decision.  But he had that material when the matter was before Branson J and he put to Branson J, in substance, what he has put to me.  Her Honour did not overlook the propriety of taking into account the merits of the substantial application in considering whether an extension of time should be granted: she quoted at length the observations of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348, 349. She also cited the decisions in Comcare v A’Hearn (1993) 119 ALR 85 and Kim Hyun Tai v Bolkus (1996) 42 ALD 249 (though the observations in those authorities about the weight to be attributed to lack of explanation for delay were, in the light of her Honour’s finding on that subject, not ultimately significant to the fate of Mr Vel’s application). Her conclusion was that, in the light of the clear policy of the ADJR Act as to the time within which applications are to be made, of the unusually long period which (albeit explained) had elapsed before Mr Vel applied for review of the decision of the President and the circumstances of prejudice proved by the Commonwealth, it was not just and equitable to grant an extension. It could not be suggested, in my view, that those considerations on which her Honour relied were not relevant or weighty; and her Honour’s lengthy reference to authority must, in my view, deprive of any serious prospect of success an argument that she overlooked relevant considerations. That being so, I cannot see a basis on which it might be held, applying well established principle, that the Judge’s exercise of discretion was not one properly open to her.

The jurisdiction which I am exercising is appellate, but is exercisable, under s 25(2) of the Federal Court of Australia Act 1976, either by a single judge or by the Full Court. The motion was listed before me; no submissions were made, and I invited none, as to whether it might more appropriately be heard by a Full Court. The determination of that question is not a matter for election by a party but, ultimately, a question for the Court or judge before whom the matter is listed: Wati v Minister for Immigration and Multicultural Affairs, unreported, FCA (Full Court) 3 October 1997.  I have considered whether there is any matter arising in the circumstances of this case which suggests that the motion should appropriately be dealt with by a Full Court: I can see none.  The principles to be applied are the same, whether an application is heard by a Full Court or a single judge, and the consequences of the decision (including the absence of a right of further appeal to a Full Court) are the same.  In my view, this is a clear case and it is appropriate that I deal with it.

The result is that, in the circumstances, Mr Vel will not have a re-hearing of what he strongly believes to be a just complaint.  In my view, however, that result follows from an application of clearly established law.  For the reasons I have given, an extension of time within which to lodge a notice of appeal would (if an appeal were competent) be of no utility and the application for such an extension should be refused.  Equally, for the reasons I have given, this is not a proper case, in my view, for leave to appeal and, again, to extend the time within which leave might be sought would be of no utility.  Mr Vel’s motion must, therefore, be dismissed.  The Commonwealth does not seek an order that Mr Vel pay its costs; accordingly, there should be no order as to costs.

I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Lehane

Associate:

Dated:            31 October 1997

The Applicant appeared in person.

Solicitor for the Second Respondent:	Australian Government Solicitor
Date of Hearing:	24 October 1997
Date of Judgment:	31 October 1997