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Vel v Human Rights and Equal Opportunity Commission

Vel v Human Rights and Equal Opportunity Commission

Case [1997] FCA 262 16 April 1997

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CATCHWORDS

ADMINISTRATIVE LAW - judicial review - Administrative Decisions (Judicial Review) Act 1977 (Cth) s11 - application for extension of time to lodge application - applicant disadvantaged by limited competence in English language and lack of understanding of legal system - delay substantial - relevant conduct occurring more than 10 years ago

Administrative Decisions (Judicial Review) Act 1977 (Cth) s11
Racial Discrimination Act 1975 (Cth) ss 19, 24, 25X
Human Rights and Equal Opportunity Commission Act 1986 (Cth)

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Maric v Comcare (1977) 40 FCR 244
Corlette v MacKenzie (1995) 39 ALD 10
Kim Hyun Tai v Bolkus (1996) 42 ALD 249
Comcare v A'Hearn (1993) 119 ALR 85
Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1

PETER VEL v
THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION & ANOR

No. NG 448 of 1996

CORAM:    BRANSON J
PLACE:    SYDNEY
DATE:     16 APRIL 1997

IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 448 of 1996
GENERAL DIVISION )

BETWEEN: PETER VEL
Applicant

AND:              THE HUMAN RIGHTS AND EQUAL
  OPPORTUNITY COMMISSION
  First Respondent

COMMONWEALTH OF AUSTRALIA
Second Respondent

CORAM:    BRANSON J
PLACE:    SYDNEY
DATE:     16 APRIL 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

The application for an extension of time within which the applicant may lodge an application for an order of review of the decision of the first respondent dated 31 December 1990 is refused.

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

IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 448 of 1996
GENERAL DIVISION )

BETWEEN: PETER VEL
Applicant

AND:              THE HUMAN RIGHTS AND EQUAL
  OPPORTUNITY COMMISSION
  First Respondent

COMMONWEALTH OF AUSTRALIA
Second Respondent

CORAM:    BRANSON J
PLACE:    SYDNEY
DATE:     16 APRIL 1997

REASONS FOR JUDGMENT

INTRODUCTION

The applicant ("Mr Vel") seeks an extension of time within which to lodge with the Court an application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"). Mr Vel is aggrieved by a decision of the President of the Human Rights and Equal Opportunity Commission ("the President"). The terms of that decision were recorded in writing and set out in a document that was furnished to Mr Vel. The reasons for decision of the President are dated 31 December 1990. They were apparently received by Mr Vel on 8 January 1991. The "prescribed period" within the meaning of s11 of the ADJR Act within which the application for an order of review of the decision of the
President was required to be lodged with the Court expired on 5 February 1991. Mr Vel lodged his application for an order of review of the decision of the President with this Court on 4 June 1996; that is, more than 5 years outside the prescribed period. He named as the only respondent to the application…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Vel v Human Rights and Equal Opportunity Commission

Details

AGLC: Vel v Human Rights and Equal Opportunity Commission [1997] FCA 262
Case: [1997] FCA 262
Decision Date: 16 APRIL 1997

CaseChat Overview and Summary

The applicant, Mr Vel, sought an extension of time to lodge an application for judicial review of a decision made by the President of the Human Rights and Equal Opportunity Commission. The decision in question dated 31 December 1990 dismissed the applicant's complaint of racial discrimination in his employment by the Department of Defence. The prescribed period for lodging the application for judicial review expired on 5 February 1991, but Mr Vel did not lodge his application until 4 June 1996. The court had to determine whether Mr Vel's delay in instituting proceedings was sufficient to warrant an extension of time. The court found that Mr Vel had a limited command of English and a limited understanding of the Australian legal system, which contributed to his delay. However, the court also found that the delay was substantial and that it would not be fair and equitable to grant an extension of time given the prejudice that would be suffered by the Department of Defence if the application were allowed to proceed. The court also noted that the events giving rise to Mr Vel's complaints of racial discrimination occurred over 10 years ago. The application for an extension of time was dismissed.

Orders