Vel v Human Rights and Equal Opportunity Commission
[1997] FCA 262
•16 APRIL 1997
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 "The Human Rights Commission".
By his application Mr Vel asserts that he is aggrieved by the decision of the President on the grounds that -
"1. Sir Ronald Wilson's decision is not supported by the facts;
2.Sir Ronald Wilson was sleeping the majority of the time during the hearing proceedings;
3.Sir Ronald Wilson failed to consider the evidence before him."
These grounds are, in my view, capable of being understood as encompassing one or more of the grounds upon which s5 of the ADJR Act authorises an application to be made to the Court for an order of review (see, for example, s5(1)(a),(b),(h) and (j)). Mr Vel's application does not indicate the relief sought by him on his application. It is plain, however, from the way in which his application was presented that he seeks to have the determination of the President that he was not subjected to racial discrimination in his employment by the Department of Defence set aside and a determination made that he was subjected to racial discrimination.
I stress that it is not the role of this Court on this application to determine whether or not Mr Vel was subjected to racial discrimination in his employment by the Department of Defence.
On 3 July 1996 Justice Hill ordered that the Commonwealth of Australia be joined as a party to the proceedings. It has been joined as the second respondent. The first respondent, the Commission, did not seek to place submissions before the Court on the present application.
BACKGROUND
The applicant is an Australian citizen of Greek national origin. He commenced duty with the Department of Defence as a storeman on 8 December 1977. His employment was terminated on 8 May 1985. Some time before this latter date the second respondent claims that the applicant resigned and was later reinstated. The applicant denies this, stating he was away from work on compensation benefits for hypertension.
A letter addressed to "Ms J. Secanski, Community Relations Office" on the letterhead of the Anti-Discrimination Board dated 19 December 1983 refers to a complaint made by Mr Vel to the Board. Apparently this complaint was referred by the Board to the Community Relations Office. A letter from Mr Vel to that office dated 21 December 1983 outlines the nature of this first complaint. The applicant made no reference to racial discrimination in this letter.
On 3 July 1986 the applicant complained to the Anti-Discrimination Board of New South Wales of unlawful treatment by the Department of Defence during the term of his employment and in respect of his dismissal, contrary to the Racial Discrimination Act 1975 (Cth) ("the Racial Discrimination Act"). He alleged that he was discriminated against on the grounds of race. The Board, as delegate of the Race Discrimination Commissioner, declined to deal with the complaint on the basis that it did not identify any unlawful discrimination.
On 13 April 1988, at the request of the applicant, his complaint of racial discrimination was referred to the Human Rights and Equal Opportunity Commission ("the Commission") in accordance with s24(4) of the Racial Discrimination Act. On the 14 June 1989, Justice Einfeld, the then President of the Commission, handed down his decision on an application by the Department of Defence for summary dismissal of the complaint pursuant to s25X of the Racial Discrimination Act. The application for summary dismissal was dismissed, and Einfeld J directed the Registrar of the Commission to consult with the parties to fix an early hearing of the complaint. Einfeld J also stated in his reasons, "I appoint Commissioner Burdekin to hear the complaint as soon as possible."
For reasons not made clear to me, but which I do not consider could be relevant to the application before me, the President, not Commissioner Burdekin, was the member of the Commission who eventually heard the substantive complaint by the applicant against the Department of Defence. The hearing was held in Sydney, and took eight days spread from early September to mid December 1990. The President handed down his decision and published his reasons on 31 December 1990, dismissing the complaint of the applicant against the Department of Defence. This is the decision the applicant seeks to have reviewed.
At the end of the written reasons of the Commission sent to Mr Vel the following appears:
"If you wish to pursue this matter any further you can:
REQUEST UNDER SECTION OF THE ACT
Requests under the Act- A client who is aggrieved by a decision of an administrative nature and is entitled to apply to the Federal Court for a review of the decision may obtain reasons for that decision.
There are a number of grounds on which a decision may be reviewed by the Federal Court, including when procedures required by law were not observed, there was no evidence or other material to justify the decision and a discretion was exercised in accordance with policy without regard to the merits of a particular case.
Hence to pursue the matter further you may get in touch with the Federal Court"
It appears that certain words are missing from this statement. I presume that this is a standard form that is placed at the end of reasons of the Commission, and that normally the gaps are filled with references to the legislation relevant to the particular case.
A letter written by Mr Vel to the President, dated 9 January 1991 acknowledges receipt of the decision of the Commission on 8 January 1991.
STATUTORY FRAMEWORK
The Racial Discrimination Act 1975 (Cth)
The Racial Discrimination Act s22 provides for the hearing of complaints made in writing alleging that a person has done an act that is unlawful by virtue of the Racial Discrimination Act. The Human Rights and Equal Opportunity Commission has a number of functions conferred on it by s20 of this Act. One such function is the function "to inquire into alleged infringements of Part II or Part IIA, and endeavour by conciliation to effect settlements of the matters alleged to constitute these infringements" (s20(1)(a)). The functions conferred on the Commission by s20 of the Racial Discrimination Act are required by s21 of the Act to be performed by the Race Discrimination Commissioner on behalf of the Commission. Parts II and IIA of the Racial Discrimination Act proscribe racial discrimination and offensive behaviour based on racial hatred.
Division 2 of Part III of the Racial Discrimination Act sets out the provisions relating to inquiries by the Commissioner. Section 24 provides:
"(1) Where:
(a)a complaint relating to an alleged unlawful act is made to the Commission under section 22; or
(b)it appears to the Commission that a person has done an act that is unlawful by virtue of a provision of Part II or Part IIA;
the Commission shall notify the Commissioner accordingly and the Commissioner shall, subject to subsection (2), inquire into the act and endeavour, by conciliation, to effect a settlement of the matter to which the act relates.
(2)The Commissioner may decide not to inquire into an act, or, if the Commissioner has commenced to inquire into an act, decide not to continue to inquire into the act, if:
(a)the Commissioner is satisfied that the act is not unlawful by reason of a provision of Part II or Part IIA;
(b)the Commission is of the opinion that the person aggrieved by the act does not desire, or none of the persons aggrieved by the act desires, that the inquiry be made or continued;
(c)in a case where a complaint has been made to the Commission in relation to the act, a period of more than 12 months has elapsed since the act was done; or
(d)in a case where a complaint has been made to the Commission in relation to the act, the Commissioner is of the opinion that the complaint was frivolous, vexatious, misconceived or lacking in substance.
(3)Where the Commissioner decides not to inquire into, or not to continue to inquire into, an act in respect of which a complaint was made to the Commission, the Commissioner shall give notice in writing to the complainant or each of the complainants of that decision, of the reasons for that decision and of the rights of the complainant or each of the complainants under subsection(4).
(3A)Subsection(3) does not apply in relation to a decision of the Commissioner that is made at the request of the complainant or all the complainants, as the case requires.
(4)Where the Commissioner has given a complainant a notice under subsection (3) relating to a decision. the complainant may, within 21 days after the receipt of the notice, by notice in writing served on the Commissioner:
(a)if paragraph (2)(a) applies- require the Commissioner to refer the complaint to the Commission; or
(b)in any other case- require the Commissioner to refer the decision to the President.
(5)On receipt of a notice under paragraph (4)(a), the Commissioner shall refer the complaint to the Commission together with a report relating to any inquiries made by the Commissioner into the complaint.
(5A)If the Commissioner receives a notice under paragraph (4)(b), the Commissioner must refer the decision to the President together with a report about the decision..."
Division 3 of Part III outlines the procedure for inquiries to be made by the Commission, and includes s25X which provides for dismissal of frivolous complaints. The Racial Discrimination Act does not itself make provision for the review of a decision of the Commission.
The Human Rights and Equal Opportunity
Commission Act 1986 (Cth)
Section 7 of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (the "HREOC Act") establishes the Commission. The Commission consists of a President and six other Commissioners, including the Race Discrimination Commissioner (s8). The functions of the Commission, which are set out in s11(1), include "(a) such functions as are conferred on the Commission by the Racial Discrimination Act 1975, the Sex Discrimination Act 1984 or any other enactment".
The HREOC Act does not provide for mechanisms for review of a decision made by members of the Commission.
Administrative Decisions (Judicial Review) Act 1977
The ADJR Act provides a means whereby persons who are aggrieved by administrative decisions made under Commonwealth legislation, such as the Racial Discrimination Act, may apply to this Court for an order for review on grounds specified by s5 of the Act.
Section 11 of the ADJR Act sets out the manner in which an application for an order for review is to be made. So far as is here relevant, it reads -
"11 (1) An application to the Court for an order of review -
(a)...
(b)...
(c)shall be lodged with a Registry of the Court and, in the case of an application in relation to a decision that has been made and the terms of which were recorded in writing and set out in a document that was furnished to the applicant, including such a decision that a person purported to make after the expiration of the period within which it was required to be made, shall be so lodged within the prescribed period or within such further time as the Court (whether before or after the expiration of the prescribed period) allows.
(2)...
(3)The prescribed period for the purposes of paragraph (1)(c) is the period commencing on the day on which the decision is made and ending on the twenty-eight day after -
(a)if the decision sets out the findings on material questions of fact, refers to the evidence or other material on which those findings were based and gives the reasons for the decision- the day on which a document setting out the terms of the decision is furnished to the applicant; ..."
THE HISTORY OF THE APPLICATION FOR AN ORDER FOR REVIEW
As mentioned above, Mr Vel apparently received a copy of the written reasons for decision of the President on 8 January 1991. On the following day he sent a letter to the President acknowledging receipt of the reasons, and, amongst other things, expressing disagreement with the President's decision and requesting his resignation. The letter includes the sentence:
"I request for someone who is fit to review my case."
It may thus be accepted that the Commission was promptly placed on notice that Mr Vel was aggrieved by the decision of the President and that he sought a review of such decision. I conclude that at this time Mr Vel was seeking an internal review of the decision by the Commission, being as it seems, unaware that an order for review by the Federal Court could be sought pursuant to s11 of the ADJR Act. It does not appear that the Department of Defence was at this time placed on notice that Mr Vel was seeking a review of the decision of the President.
On 11 January 1991 the Registrar of the Commission responded to Mr Vel's letter of 9 January 1991. The opening paragraphs of this letter are in the following terms:
"I am replying to your letter of 9 January 1991 to the President of the Commission, in which you request a review of the President's decision ...
There is no provision within the Commission's legislation for Commissioner review of such decision. If you wish to consider further action it will be necessary for you to seek independent legal advice as to what remedies might be available to you outside the Commission."
Meanwhile, on 10 January 1991, Mr Vel had written to the Attorney-General of the Commonwealth ("the Attorney-General") complaining of the conduct of the President, requesting his (ie the President's) resignation and advising that he (ie Mr Vel) did not agree with the decision of the President. Mr Vel expanded on his complaints by a lettergram to the Attorney-General dated 14 January 1991.
On 15 February 1991 the Assistant Secretary Human Rights Branch of the Attorney-General's Department responded on behalf of the Attorney-General to Mr Vel advising him that "(i)t is open to you to seek legal advice as to any rights you may have to seek review of the Commission's decision".
In April 1991 Mr Vel sought from the Department of Defence copies of certain papers relating to his employment at Victoria Barracks. His requests for such documents made no reference to the Commission or the decision of the President. They would not, in my view, have alerted the Department of Defence to the fact that Mr Vel sought review of the decision of the President.
Later in April 1991 it appears that Mr Vel communicated by telephone, and probably in writing, with the Centre for Human Rights of the United Nations Office at Geneva, Switzerland ("the Centre"). It further appears that in early May 1991 Mr Vel travelled to Geneva with the intention of continuing there a hunger strike which he had earlier held at the corner of George and King Streets, Sydney. He advised the Attorney-General of his intentions in this regard. By letter dated 21 May 1991 the Centre confirmed receipt of a complaint by Mr Vel against the Australian Government, and by a letter dated 27 May 1991 the Centre confirmed that the matter had been raised with the Australian Government and that the Centre could not be of further assistance to Mr Vel.
By letter dated 25 June 1991 Mr Vel requested the Centre to review the decision of the President together with the earlier decision of Justice Einfeld in his capacity as President of the Commission. The Centre advised Mr Vel of its inability to assist him in the way that he sought. Mr Vel subsequently wrote a number of letters to the Centre and to the Secretary-General of the United Nations expressing dissatisfaction with his inability to appeal to the United Nations against the decision of the President. It appears that he undertook a hunger strike in Geneva.
Mr Vel gave evidence that in late 1991 he came to the Registry of the Federal Court and asked for a review of the decision of the Commission and was told "that's not like anybody who doesn't like a decision of the Human Rights to come here and ask for a review - must have the Act to be able to ask for a review". It seems likely that the tenor of the advice intended to be conveyed to Mr Vel on that occasion was that a decision of the Commission could only be reviewed by this Court on grounds specified in the ADJR Act. It appears, however, that Mr Vel understood the advice to refer him back to the Commission to obtain from them an "act".
Although a copy of the letter is not in evidence, it appears that on 10 October 1994 Mr Vel wrote to the Chief Justice of the High Court of Australia, having been motivated to do so by learning through media reports of the appeal to the High Court in the matter of Brandy v Human Rights and Equal Opportunity Commission & Ors. That appeal is now reported at (1995) 183 CLR 245. On 12 October 1994 the Associate to the Chief Justice wrote to Mr Vel advising him that the Chief Justice had asked him to reply as follows:
"The High Court does not have jurisdiction to hear an appeal against a decision of the Human Rights and Equal Opportunity Commission. Mr Brandy, in his case before the High Court on Tuesday, 4 October, was not seeking to appeal against the determination made against him. Rather, he sought to challenge the validity of certain sections of the Racial Discrimination Act. The High Court does have jurisdiction to determine whether a Commonwealth Act is contrary to the Constitution.
There is a right to review a decision in the Federal Court.
It follows that the documents you have sent cannot constitute originating process in the High Court. Accordingly, they are enclosed."
On 13 March 1995 Mr Vel wrote to the Race Discrimination Commissioner. The opening paragraphs of the letter read as follows:
"With the case of Brandy v Bell media coverage, I became aware that I had a right to Appeal on [the President's] decision of 21/12/90 (for unlawful discrimination against the Department of Defence) and this right was withheld.
On 19/1/91 I had written to the Human Rights Commission requesting to review the decision (see attached). The Human Rights Commission again neglected to advise me of my right to an Appeal in their letter of 11/1/91 (see attached).
I am requesting the Human Rights Commission to review my case based on the following reasons ..."
(emphasis in the original)
By correspondence dated 24 November and 18 December 1995 incorrectly addressed to Mr Chris Sidoti as President of the Commission, Mr Vel made further complaints about the decision of the President. In the second of these letters, the following statement appears:
"I accuse HREOC of racial discrimination; it can only not be classified as racial discrimination conduct if steps are being taken to overturn Sir Ronald Wilson's decision of 30 December 1990."
On 8 January 1996 Mr Vel again wrote to the President of the Commission, advising of his wish to have the decision of the President subjected to a review and of his having advised the Attorney-General accordingly. The Commission's response to this letter includes the following paragraphs:
"The President's decision was handed down on 31 December 1990 and as you know, the complaint was dismissed. I regret to say that a 1990 decision of the President, following the referral of a complaint for hearing under s24(4) of the Racial Discrimination Act, cannot be revisited by the Commission or by the President.
The Racial Discrimination Act itself does not presently provide any mechanism by which a 1990 decision to dismiss a complaint may be the subject of subsequent negotiation or challenge by the unsuccessful party. The only way for you to implement an 'order of review' is to lodge a claim in the Federal Court.
I hope you will understand that the process of launching and then conducting Federal Court judicial review proceedings is not one about which it is appropriate for the Commission to advise."
Meanwhile, by letter dated 8 January 1996 Mr Vel had again written to the Attorney-General. The letter opens as follows:
"Dear Sirs,
APPLICATION FOR AN ORDER TO REVIEW
SIR RONALD WILSON'S DECISION
This application is an order to review Sir Ronald Wilson's (President of Human Rights and Equal Opportunity Commission ('HREOC')) decision of 30 December 1990 where he stated '... there is no evidence of any racial remarks being addressed to him by anyone. The workforce at Zetland was racially mixed. The case of racial discrimination is not established. The complaint must be dismissed.'"
On 22 January 1996 the Acting Senior Government Counsel Human Rights Branch of the Attorney-General's Department replied on behalf of the Attorney-General to Mr Vel's letter of 8 January 1996. Regrettably, in the circumstances, she advised Mr Vel
that he "should ensure that [his] application for review is lodged directly with the Commission ...".
On 28 March 1996 Mr Vel filed with the Supreme Court of New South Wales an application seeking review of a decision of the Anti-Discrimination Board of New South Wales. The Secretary of the National Union of Workers and Daryl Williams, the Commonwealth Attorney-General, were later joined. Notices of discontinuance have been filed in relation to those parties.
As is mentioned above, on 4 June 1996, the application for an order of review in this matter was filed with this Court. The precise circumstances which precipitated its being filed on that day are not known to me.
CONSIDERATION
The distressing history of Mr Vel's attempts to achieve a reconsideration of the decision of the President amply justify, in my view, his assertion that -
"It is obvious that since Sir Ronald Wilson handed down his decision in December 31 1990, I did not once give up, nor did I consider the matter to be closed. I continued seeking the right avenues seeking for my rights and to exercise my right to review Sir Ronald Wilson's decision as far as going to the United Nations in Geneva."
It appears that Mr Vel has sought to obtain legal advice and representation with respect to his endeavours to obtain a review of the President's decision but apparently without success. This is a matter of regret. At a fraction of the cost of travelling to Geneva Mr Vel could have paid for legal advice in 1991 as to his rights under the ADJR Act. If he had done so, and, having done so, given prompt instructions for judicial review proceedings to be instituted in this Court, even outside of the prescribed period for doing so, it seems likely that his application would in the circumstances have been allowed to proceed. The delay which the Court would then have had to take into account in considering whether or not to allow an extension of time within which to commence the proceedings would have been a delay measured, at most, in months, not a delay of more than 5 years as is now the case.
In Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-350 Wilcox J distilled from earlier decisions of judges of this Court certain guiding principles for the exercise of the Court's discretion under s11 of the ADJR Act. Although, as his Honour emphasised, such principles are not exhaustive of factors relevant to the exercise of the discretion and provide no more than a guide to the exercise of the discretion, they have received wide support as a useful starting point when an exercise of the discretion under s11 of the ADJR Act is under consideration (see, for example, Maric v Comcare (1977) 40 FCR 244 and Corlette v MacKenzie (1995) 39 ALD 10). His Honour formulated the principles as follows:
"1. Although the section does not, in terms, place any onus of proof upon an applicant for extension an application has to be made. Special circumstances need not be shown but the court will not grant the application unless positively satisfied that it is proper to do so. The 'prescribed period' of twenty-eight days is not to be ignored (Ralkon Agricultural Co. Pty Ltd v Aboriginal Development Commission (1982) 43 ALR 535 at 550). Indeed, it is the prima facie rule that proceedings commenced outside that period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an 'acceptable explanation of the delay' and that it is 'fair and equitable in the circumstances' to extend time (Duff v Freijah (1982) 62 FLR 280 at 485; Chapman v Reilly (unrep, Fed Ct, Neaves J, 9 December 1983) at 7).
Action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision (who has not 'rested on his rights': per Fisher J in Doyle v Chief of Staff (1982) 42 ALR 283 at 287) and a case where the decision-maker was allowed to believe that the matter was finally concluded. Compare Doyle, Chapman, Ralkon and Douglas v Allen (1984) 1 FCR 287 with Lucic at 414-415 and Hickey v Australian Telecommunications Commission (1983) 48 ALR 517 at 519. The reasons for this distinction are not only the 'need for finality in dispute' (see Lucic at 410) but also the 'fading from memory' problem referred to in Wedesweiller v Cole (1983) 47 ALR 528.
Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension: see Doyle at 287, Duff at 484-485, Hickey at 525-527 and Wedesweiller at 533-534.
However, the mere absence of prejudice is not enough to justify the grant of an extension: Douglas, Lucic at 416, Hickey at 523. In this context, public considerations often intrude (Lucic, Hickey). A delay which may result, if the application is successful, in the unsettling of other people (Ralkon at 550, Becerra [unrep, Fed Ct, Morling J, 18 February 1983] at 12-13) or of established practices (Douglas) is likely to prove fatal to the application.
The merits of the substantial application are properly to be taken into account in considering
whether an extension of time should be granted: Lucic at 417, Chapman at 6.
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 at 534-535.
In considering the authorities it is, I believe, important to bear in mind the point made by Sheppard J in Wedesweiller at 531, relating to the diversity of decision to which review may be sought under the Act:
'... there will be some cases which may be decided upon considerations which affect only the immediate parties. It will be appropriate to consider whether the delay which has taken place has been satisfactorily explained, the prejudice which may be caused to an applicant by the refusal of an application, the prejudice which may be suffered by the Government or a particular department if the application is granted and, generally, what the justice of the case requires. In other cases wider considerations will be involved.'"
Hill J in Kim Hyun Tai v Bolkus (1996) 42 ALD 249 at 252 noted that the first of Wilcox J's guidelines requires modification since the Full Court decision of Comcare v A'Hearn (1993) 119 ALR 85; that is, that it is possible that the justice of a particular situation might require an extension of time even when the applicant fails to give an explanation for the delay. Justice Hill in Kim Hyun Tai v Bolkus at 252 stated:
"Certainly it may be expected that an explanation will be given and the strength or otherwise of that explanation will be a relevant matter to be considered. So, too, would failure to give any explanation at all. But I would not wish to foreclose the possibility that the justice of allowing an extension of time was so great that failure to give an explanation operated to disentitle an applicant [sic] for review."
In this case Mr Vel's delay in commencing proceedings in this Court has been substantial. Moreover, he was early placed on notice that he should obtain legal advice as to the remedies that might be available to him. However, I do not consider it appropriate to place great weight on these factors in this case. Mr Vel has a limited command of the English language, and, I conclude, an even more limited understanding of the workings of the Australian legal system. These two attributes working in combination appear to have led him, in his genuine endeavour to seek reconsideration of the President's decision, down a long, painful and essentially futile path.
I am prepared to find, although with some reluctance, that Mr Vel has shown in the circumstances, which include his personal circumstances, an acceptable explanation for the delay in his institution of these proceedings. My reluctance stems, in particular, from the note (albeit incomplete) at the end of the President's reasons for decision which makes explicit reference to reviews by this Court, and to the advice which he received on a number of occasions to seek legal advice.
Having found that Mr Vel has shown in the circumstances an acceptable explanation for the delay in the institution of these proceedings, it is nonetheless necessary for me to consider whether it would be fair and equitable in the circumstances to extend time.
Plainly the Commission has at all times been aware that Mr Vel was seeking review of the President's decision. The Attorney-General was also early placed on notice, and from time to time reminded, that Mr Vel was seeking review of the President's decision. However, knowledge in the Attorney-General is not, in my view, to be equated with knowledge in the Minister of Defence or in officers of the Department of Defence. Mr Vel's objective in this proceeding is to have the decision of the President set aside and his complaints of racial discrimination determined in his favour. If he were to succeed in having the decision of the President set aside, this would almost inevitably require a rehearing of his complaints of discrimination. On any such rehearing, the Department of Defence would be, in effect, the respondent.
In opposing Mr Vel's application for an extension of time, Ms Henderson, counsel for the second respondent, stressed the prejudice which would be experienced by the Department of Defence should Mr Vel achieve his objective of having his complaint of racial discrimination by the Department of Defence reheard.
Evidence read on behalf of the Commonwealth reveals that the complaint by Mr Vel which was heard by the President involved 11 different claims, some raising issues going back to the late 1970s. At the hearing before the President, which took place over 8 days, the second respondent relied on evidence from 13 persons, 12 of whom were at the time employed within the Department of Defence. Most of those 12 persons were employed concurrently with Mr Vel at the Naval Supply Centre, Zetland. That centre was disbanded during 1996 and the staff working there retrenched. One of the 12 persons is known to have died. Only one of the 12 persons still works with the Department of Defence. The Department of Defence has been unable to contact 4 of the persons who no longer work with it apparently because it has no record of a current telephone number for them. Two of the persons who no longer work for the Department of Defence, but who have been contacted, have expressed reservations about their present recall of events concerning Mr Vel.
In Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1, the High Court gave consideration to the proper approach to the exercise of a direction to extend the time within which a proceeding may be instituted when a limitation period has expired. The limitation period there under consideration was the ordinary three year period for the bringing of an action for damages for negligence in respect of personal injury. The ADJR Act sets what is, in effect, a 28 day limitation period. In enacting such a short limitation period, when compared with the more common limitation period of three or six years, the legislature was presumably influenced by the nature of the decisions likely to be the subject of applications for orders for review under the ADJR Act. Only "a decision of an administrative character made, proposed to be made, or required to be made ... under an enactment" can be the subject of an application for an order for review under the ADJR Act. Ordinarily, it will be appropriate for challenges to such decisions to be made promptly to minimise disruption to ongoing administrative processes. However, each application for an extension of time under the ADJR Act must be looked at on its own facts.
In some ways this case is analogous to the type of case in which a three or six year limitation period is the rule. However, even so regarded, Mr Vel faces great difficulties in showing that it would be fair and equitable to grant him the extension of time that he seeks. The circumstances giving rise to his complaints of racial discrimination occurred over 10 years ago. In that context the following passage from the judgment of McHugh J at 8 in Brisbane South Regional Health Authority v Taylor assumes significance:
"The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that '[w]here there is delay the whole quality of justice deteriorates'. R v Lawrence [1982] AC 510 at 517 per Lord Hailsham of St Marylebone LC. Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties."
Having regard to the obvious prejudice which would be suffered by the Commonwealth should Mr Vel achieve his aim of having the decision of the President set aside, and having regard to the very considerable time which has elapsed since the occurrence of the events which Mr Vel characterises as racial discrimination, I am not satisfied that it would be fair and equitable to grant to Mr Vel the extension of time which he seeks to institute proceedings for an order of review of the decision of the President. Indeed, I am of the view that the time has come for all parties to put behind them the events out of which Mr Vel's complaints arise.
The application for an extension of time is dismissed.
I certify that this and the preceding twenty three (23) pages are a true copy of the reasons for judgment of the Honourable Justice Branson.
Associate:
Date:
The applicant appeared in person.
Counsel for the second respondent: Miss R.M. Henderson
Solicitor for the second respondent: Australian Government
Solicitor
Hearing day: 5 December 1996.
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