Vel v Human Rights and Equal Opportunity Commission

[2000] FCA 1940

FEDERAL COURT OF AUSTRALIA

Vel v Human Rights & Equal Opportunity Commission [2000] FCA 1940

JURISDICTION – application for leave to appeal from a judgment refusing leave to appeal – a single judge hearing an application for leave to appeal exercises appellate jurisdiction – Court has no jurisdiction to hear appeal from a judgment refusing leave to appeal – discretion not to award costs – applicant had no legal advice and genuine sense of grievance.

Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424, cited

Wati v Minister for Immigration & Multicultural Affairs (1997) 78 FCR 543, cited

PETER VEL v HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION AND THE COMMONWEALTH

N825 of 2000

MADGWICK J
4 DECEMBER 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N825 of 2000

BETWEEN:

PETER VEL
APPLICANT

AND:

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
FIRST RESPONDENT

THE COMMONWEALTH
SECOND RESPONDENT

JUDGE:

MADGWICK J

DATE OF ORDER:

4 DECEMBER 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N825 OF 2000

BETWEEN:

PETER VEL
APPLICANT

AND:

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
FIRST RESPONDENT

THE COMMONWEALTH
SECOND RESPONDENT

JUDGE:	MADGWICK J
DATE:	4 DECEMBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

HIS HONOUR:

1. This is an application for an extension of time in which to file and serve a notice of appeal from a judgment of Lehane J given on 31 October 1997.  The application was filed on 31 July 2000. 

2. The judgment of Lehane J was given in respect of a notice of motion filed on 12 September 1997 by the present applicant, Mr Peter Vel.  Before Lehane J, the applicant sought 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 Branson J had 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) (Cth) of a decision of the first respondent, the Human Rights & Equal Opportunity Commission (“the Commission”), dated 31 December 1990.

   Background

3. Mr Vel appeared before me in person as he had done before Lehane J.  Lehane J commented that the applicant’s command of English was limited and that he had made submissions, through an interpreter, as he had also apparently done before Branson J.

4. When the matter first came on before me it was pointed out that no appeal would lie in this Court from the judgment of Lehane J because his Honour was engaged in an exercise of the appellate jurisdiction of the Court in determining whether leave to appeal from Branson J’s judgment should be granted. Section 25(2) of the Federal Court of Australia Act 1976 (Cth) provides:

   “Applications:
   …

   (b)for an extension of time within which to institute an appeal to the Court

   …
              may be heard and determined by a single Judge or by a Full Court.”

   His Honour considered it was appropriate that, as a single judge, he determine the matter.  He did so adversely to the applicant.

5. The background of the matter was set out by Lehane J as follows:

   “Mr Vel... 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 [that is the first respondent].  On 14 June 1989 Einfeld J, then President of the Commission, dismissed an application by the Department for summary dismissal of the complaint under section 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 was ultimately 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.”

6. It appears that, although the applicant did not thereafter approach this Court until about five years later, Branson J accepted that in the circumstances Mr Vel had shown an acceptable explanation for this delay.  However, her Honour concluded that the applicant had not shown that it would be “fair and equitable” to grant him the extension of time which he sought, and this was mainly so because of prejudice to the Commonwealth.  It appears that of 12 departmental employees who were called to give evidence before Sir Ronald Wilson, only one remained in the Department's employment and the Department had been able to contact only four of them.  Two of these had expressed reservations about their present recall of events concerning the applicant.  In Branson J’s view, if the applicant were to succeed in having the decision of Sir Ronald Wilson as President of the Commission set aside, the virtually inevitable consequence would 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.

7. Before Lehane J, the applicant concentrated on two broad matters.  The first was a contention that the Commission had not dealt fully or adequately with the various aspects of his complaint and the other was what he called “new evidence”. 

8. The term “new evidence” was applied to various documents which had been lodged with the Commission for the purposes of the preliminary proceedings before Einfeld J.  Some of those were returned to the applicant shortly before his complaint was heard by Sir Ronald Wilson and apparently some more were tendered in the proceedings before Sir Ronald Wilson.  However, in 1995 the applicant claims to have discovered that the Commission still held a large number of documents which were not among the documents returned to him before the hearing of his complaint and so he was unable to tender them.  The applicant says that it seems very likely that the President, Sir Ronald Wilson, did not take the documents into account in making his decision and that, upon a re-hearing of his complaint, he should have the chance to put that material before the person re-hearing it.

9. Lehane J observed that the applicant was out of time to seek leave to appeal from Branson J’s judgment; when the application was made to his Honour, he dealt with the applicant’s motion as if it were both an application under O 52 r 10(2)(b) for an enlargement of time in which to make an application for leave to appeal and also as what it was (as I understand it), an application for leave to appeal under O 52 r 10(2)(a). 

   The Court’s jurisdiction

10. It is well settled that a decision by a single judge of the Court refusing leave to appeal to a Full Court of this Court is itself an exercise of the appellate jurisdiction of the Court:  see Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424 and Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543. Accordingly, no appeal lies to the Full Court from an order of a single judge refusing or granting leave to appeal.

11. Lehane J refused an extension of time for the making of an application for leave to appeal, because he considered that Branson J’s discretionary judgment was not attended by sufficient doubt as to its correctness to justify leave to appeal being granted.  Technically, I am also dealing with an application for an extension of time, this time to appeal from Lehane J’s judgment.  However, in my view there is no prospect that his Honour's judgment would be disturbed on appeal because the appeal would be incompetent.  There is, in my opinion, no power in the Court to extend time to lodge an appeal which would be plainly incompetent.  In any case, it seems to me that Lehane J’s judgment is not attended by sufficient doubt as to warrant any extension of time in which to enable the applicant to file and serve a notice of appeal from it.  Accordingly, I must refuse the application and it will be dismissed.

    Costs

12. There will be no order as to costs in this matter.  At the heart of the applicant’s efforts to engage the Court is the genuine belief, for which there would appear to be some possible basis, that there was a concurrence of events whereby documents that may have helped his case were not in his hands when his case was heard and so he did not have a chance to put them before the distinguished former High Court Justice who heard the case.  To the applicant this seems very unjust, as it might to anybody if the facts which he asserts are true.  It does not abundantly appear that the applicant’s claims are not true, and nobody has dealt with the case on that basis. 

13. When the matter was first before me, it was apparent that the applicant had some difficulty fastening on the legal issues and that it was difficult for me to explain them to him.  I took some steps to have officers of the Court contact the New South Wales Bar Association to ask them if it might try to find the services of a Greek-speaking barrister to assist the applicant.  Apparently no such assistance was forthcoming.  I do not say this in any sense critically of the Bar Association.  I do not know what happened.  However, the fact is that the applicant has not had any advice. 

14. This does not appear to be the case of a person who knowingly proceeds with a case which must be seen as hopeless.  It is the case of a man who, rightly or wrongly, feels a deep sense of injustice.  He asks no more than that his case be reheard and that all relevant documents be considered and he asks that the Court intervene to bring this about.  The applicant, it seems to me, does not understand the legal issues but has approached the Court in subjective good faith.  The discretion of the Court might properly be exercised against further burdening him with a costs order. 

    Disposition

15. The application is dismissed.  There will be no order as to costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:            15 January 2001

Applicant appeared in person.
Solicitor for the First Respondent:	Human Rights and Equal Opportunity Commission
Solicitor for the Second Respondent:	Australian Government Solicitor
Date of Hearing:	4 December 2000
Date of Judgment:	4 December 2000