Westwood v Human Rights and Equal Opportunity Commission

[2004] FCA 1231

FEDERAL COURT OF AUSTRALIA

Westwood v Human Rights and Equal Opportunity Commission
[2004] FCA 1231

PRACTICE AND PROCEDURE – application for extension of time in which to seek leave to appeal – where delay is not great and is explicable – no prospect of success in appeal against primary judge's judgment – no error disclosed in draft notice of appeal – application dismissed

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 11
Federal Court Act 1976 (Cth) s 23
Human Rights and Equal Opportunity Commission Act 1986 (Cth)
Sex Discrimination Act 1984 (Cth)

Federal Court Rules O 52 r 10, O 52 r 15A

Kim Hyun Tai v Bolkus (1996) 42 ALD 249 cited
Hunter Valley Development Pty Ltd v Cohen (1984) 3 FCR 344 cited

PAMELA WESTWOOD v HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION AND MEMBERS OF THE COUNCIL OF THE SCOTS COLLEGE AND ANOTHER

N 413 OF 2004

MOORE J
24 SEPTEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 413 OF 2004

BETWEEN:

PAMELA WESTWOOD
APPLICANT

AND:

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
FIRST RESPONDENT

MEMBERS OF THE COUNCIL OF THE SCOTS COLLEGE
SECOND RESPONDENT

[NAME SUPPRESSED]
THIRD RESPONDENT

JUDGE:

MOORE J

DATE OF ORDER:

24 SEPTEMBER 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the second and third respondents' costs.

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	N 413 OF 2004

BETWEEN:

PAMELA WESTWOOD
APPLICANT

AND:

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
FIRST RESPONDENT

MEMBERS OF THE COUNCIL OF THE SCOTS COLLEGE
SECOND RESPONDENT

[NAME SUPPRESSED]
THIRD RESPONDENT

JUDGE:	MOORE J
DATE:	24 SEPTEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This judgment concerns an application filed on 24 March 2004 for an extension of time to file and serve a notice of appeal against a judgment of Conti J of 27 February 2004:  Westwood v Human Rights and Equal Opportunity Commission [2004] FCA 153. Conti J dismissed an application (filed on 17 March 2003) for an extension of time to file and serve an application for an order for review of a decision of the Human Rights and Equal Opportunity Commission ("the Commission") of 31 January 1991 (the reasons for decision were handed down on 31 May 1991).

2. The application filed on 24 March 2004 was accompanied by a draft notice of appeal and a supporting affidavit.  The grounds for appeal in the draft notice of appeal were:

   1.  The appellant appeals from the whole of the judgment of [Conti J] given on February 27 2004 at Sydney.
   Grounds
   2.  Factual errors in decision of 27 February 2004.
   3.  The matters regarded by the decision maker as decisive, namely the length of delay and inadequate explanation for the delay could not possibly be decisive.  What was necessarily decisive in the circumstances of the case was the overwhelming prejudice to the appellant absent of any serious degree of prejudice to the [respondents]. 
   4.  The appellant is liable for the respondents' costs of the action which will be substantial.

   The supporting affidavit said the applicant received the judgment of Conti J on (what was said to be) 30 February 2004 and she was not advised that she had a right to appeal the decision to a Full Court of the Federal Court.  The affidavit then said the applicant was seriously ill with an inoperable cancer and had been in hospital.  A document from John Hunter Hospital was annexed to the affidavit indicating the applicant was hospitalised between 12 and probably 17 March 2004.

3. The applicant sought to present her case in support of the application in writing under O 52 r 15A of the Federal Court Rules, and no respondent objected to this course.  Notwithstanding that O 52 r 15A sets out the requirements for parties to submit their written case, on 28 June 2004 directions were made for written submissions.  The applicant was to file and serve any further written submissions in support of her application by 9 July 2004.  The respondents were to file and serve any submissions in opposition to the application by 23 July 2004 and the applicant was to file and serve any submissions in reply by 6 August 2004.  The applicant did not file submissions in support of the application or in reply to the respondents' submissions.  Written submissions in opposition to the application were filed by the second respondent on 11 June 2004, and the third respondent on 24 June 2004.

   Background

4. The following is taken principally from the reasons for judgment of Conti J.  The applicant commenced employment at Scots College ("the College") in May 1986.  On 22 April 1988 the applicant was dismissed.  The applicant was subsequently reinstated on 19 May 1988.  For considerable periods of time during the following six weeks, the applicant was absent on sick leave.  The College terminated the applicant's employment effectively from 1 July 1988. 

5. Pursuant to the Sex Discrimination Act 1984 (Cth) ("the SD Act"), the applicant forwarded a written complaint about her treatment and the termination of her employment to the Commission.

6. On 3 May 1989, in the course of the inquiry into the complaint by the Commission, the applicant was informed that "in the Commission's judgment, the actions complained of by the applicant were not unlawful and that the Commission's inquiry would be thereupon discontinued". The applicant requested her complaint be referred to the Commission for full hearing under s 52(4) of the SD Act. This occurred. The hearing Commissioner, in the course of that hearing, dismissed an application for summary dismissal of the complaint. The hearing Commissioner proceeded to hear the complaint and made her decision on 31 January 1991 and her reasons for decision were published on 31 May 1991. The hearing Commissioner determined that the applicant had failed to establish that she had been discriminated against on the ground of sex within the terms of s 14 of the SD Act.

7. During 1991 and 1992 the applicant made various inquiries and applications for legal assistance to appeal against that decision.  At that time, there was no mechanism under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ("the HREOC Act") for review of a decision of the Commission. An aggrieved person could apply for an order for review in the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("AD(JR) Act") on the grounds set out in s 5 of the AD(JR) Act.

   The decision of Conti J

8. The applicant filed her application for an order of review under the AD(JR) Act on 17 March 2003. The application for an order for review stated:

   [The applicant is] making application for HREOC… by Commissioner Moss, be set aside under s 5 ADJR Act [and] a rehearing of the matter in compliance with, understanding of, [and] acceptance of the Sex Discrimination Act 1984.

9. On 14 April 2003 the applicant filed an amended application for an order for review, a notice of motion seeking to set aside the orders of the Commission and a rehearing of the matter, and an affidavit setting out eight reasons why the Commission had denied her procedural fairness.  It was not until 22 May 2003 that the applicant sought an extension of time in which to file and serve an application for an order for review.  That application was made by way of notice of motion filed on 22 May 2003 and sought the following orders: 

   1.that an order in [the applicant's] favour be made for an out-of-time application to be heard.  The reasons why [the applicant] failed to make a successful appeal application within the period of 28 days in 1991, was that despite numerous attempts, and seeking of much advice as to the appeal procedure, [the applicant]was mentally disabled to such a degree that [the applicant] was unable to work through the layers of complexity required of the appeal process.  [the applicant] was unemployed and living in impecunious circumstances.

   2.that an order be made in [the applicant's] favour that … [HREOC] hearing Commissioner Irene Moss made the wrong decision in dismissing my case under section 81(1)(a) of the Sex Discrimination Act 1984 (SDA).

10. Conti J concluded the applicant had provided no satisfactory explanation for the long period of time that had elapsed since the decision of the Commission.  His Honour inferred that the circumstances giving rise to the application for an order for review were controversial and could lead to protracted and costly litigation that would occasion substantial distress and inconvenience to people directly and indirectly involved in that litigation.  His Honour considered that the memories of witnesses would have faded significantly with the lapse of time.

11. Conti J went on to indicate the second and third respondents would suffer substantial prejudice if the applicant succeeded in her application (at [36]):

    In my opinion, it has been sufficiently demonstrated by the College and the third respondent that substantial prejudice to their respective defences of the proceedings proposed by the applicant would be occasioned by the long and essentially unexplained delay on the applicant’s behalf in seeking leave to bring such proceedings.  It would I think be wrong to inconvenience so many people potentially involved, as well as the College as an institution, by granting the present application.  Moreover the likelihood of injustice to the intended respondents, on account of fading memories by reason of the lapse of time involved is significant.  Considerations of fairness require on clear and decisive balance that the present application be dismissed. 

12. His Honour then discussed whether the application for an order for review adequately particularised a viable basis for the allegation of denial of procedural fairness.  His Honour concluded at [37] and following:

    Whilst fully appreciating that the applicant is a litigant in person without any at least disclosed legal assistance, the grounds for denial of procedural fairness the subject of the originating process (see [4] above) would not appear to be viably concerned, even given the most generous interpretation which can be afforded to the content thereof.  The same are framed in relation merely to the weight of the evidence said to have been tendered by the applicant to Commissioner Moss, and the particulars of those grounds (see [5] above) essentially maintain the theme of failure to accord sufficient weight.  Moreover the amended originating process extracted in [6] maintains at least the pre-eminence of the theme of insufficiency of weight accorded by the Commissioner, as also do the further particulars extracted in [7] above.  The applicant’s subsequent affidavit summarised in [11] above also maintains the essence of the theme of weight of evidence.  Also, for instance, the broad sweep of the material lastly produced by the applicant, as summarised in [13] above, does not adequately particularise a viable basis for the allegation of denial of procedural fairness.

    Submissions of the second respondent

13. The second respondent's contentions and reasons for opposing this application can be briefly summarised as follows.  As a preliminary matter, the applicant had not filed an affidavit showing, in a reasoned fashion, the nature of the case, the questions involved and the substantive reasons why leave should be given:  see O 52 r 15(6) of the Federal Court Rules.  The applicant had not disclosed any 'special reasons' for the granting of the application:  see O 52 r 15(2) and generally Jess v Scott (1986) 12 FCR 187 at 195.

14. The decision of Conti J is interlocutory and no appeal lies of right even if the Court allows the extension of time.  The applicant has not applied for leave to appeal:  see O 52 r 10(2)(b).  The applicant is faced with the difficulties inherent in seeking leave to appeal an interlocutory judgment as discussed in Décor Corporation Pty Limited v Dart Industries (1992) 104 ALR 621 at 622-623. Further, the judgment of Conti J is a discretionary judgment and the principles set out in House v R (1936) 55 CLR 499 at 504-5 apply and require the applicant to show that Conti J erred in exercising his discretion. It is insufficient that the applicant shows that an appellate court might have made a different decision.

15. It was submitted that from the reasons for judgment it can be seen that Conti J:

    (a)Isolated the basis of the application for judicial review of the decision of Commissioner Moss and determined the nature of the applicant's complaints of error made by Commissioner Moss.

    (b)Determined that there was no demonstration of error in fact.

    (c)Considered the applicant's conduct and difficulties subsequent to the decision of Commissioner Moss particularly her attempts to explain why the application was not filed in time for many years.

    (d)Considered the respondents' arguments of prejudice if time was extended.

    (e)Applied the relevant legal principles applicable to an application to extend time for judicial review to the facts as found on the available evidence.

    The applicant has not shown a discretionary error within the meaning of House v R (supra).  In particular, the applicant has not demonstrated error in Conti J's analysis of the issues or the evidence, nor has the applicant shown error in Conti J's application of the relevant legal principles.

16. The draft notice of appeal does not particularise what factual errors the applicant asserts Conti J made.  The finding by Conti J of prejudice to the respondent was a finding supported by the facts and was open to his Honour to make, and there is no reasonable basis for asserting that his Honour erred in making that finding.  His Honour also found that other persons would be substantially affected by a successful application for an extension of time.  His Honour considered the prejudice to the applicant in not extending time. 

17. In determining the application for an extension of time, Conti J took into account the length of delay and the inadequate explanation for that delay.  Both these factors were relevant to determining the application before his Honour. 

    Submissions of the third respondent

18. The third respondent's reasons for opposing this application can be summarised as follows.  The applicant has not sought leave to appeal from the interlocutory decision of the Federal Court and, in the alternative, if an application to seek leave to appeal from an interlocutory decision is assumed, the draft notice of appeal does not disclose reasons that would satisfy the test for granting such leave as set out in Décor Corporation Pty Limited and Anor v Dart Industries Inc (1991) 104 ALR 621. The applicant, in her draft notice of appeal:

    Does not show that, in all the circumstances, the decision of his Honour Justice Conti is attended with sufficient doubt to warrant it being reconsidered by the Full Court.  Nor does the Appellant show that substantial injustice would result to if leave were refused, supposing the decision of His Honour Justice Conti to be wrong.

    The draft notice of appeal disclosed no appealable error. 

    Consideration of the present application

19. The judgment of Conti J dismissing the application for an extension of time was made in the exercise of the Court's original jurisdiction: see s 23 of the Federal Court Act.  In determining that application, Conti J referred to the principles identified by Wilcox J in Hunter Valley Development Pty Ltd v Cohen (1984) 3 FCR 344 (subject to the qualification of Hill J in Kim Hyun Tai v Bolkus (1996) 42 ALD 249 which is not relevant here). His Honour noted that the AD(JR) Act does not require 'special circumstances' be shown by the applicant to commence proceedings under the AD(JR) Act out of time: see s 11 of the AD(JR) Act. However, his Honour concluded that the Court must nonetheless be positively satisfied that it is proper to do so in the circumstances: see his Honour's reasons at [28].

20. As the decision of Conti J was an interlocutory decision, the applicant was required to file and serve an application for leave to appeal by 5 March 2004: see O 52 r 10 of the Federal Court Rules. I will treat this application as an application for an extension of time in which to seek leave to appeal. Having regard to the circumstances set out above and the period of 19 days delay in seeking leave to appeal against his Honour's decision, the delay is short and explicable. However, the factor weighing heavily against extending time or granting leave is the applicant's prospects of success in an appeal against the decision of Conti J. It is not apparent to me that Conti J erred when considering the application for an extension of time. His Honour considered the length of time in bringing the application, the explanation for that delay, the prejudice to both parties (though the problems of fading witnesses recollections may be of limited relevance in a case involving an allegation of a denial of procedural fairness) and the applicant's prospects of success in an application for an order for review under the AD(JR) Act should the applicant be allowed to commence proceedings in this Court out of time.

21. The application should be dismissed with costs.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:            24 September 2004

Written submissions filed for the Second Respondent:	Colin Biggers & Paisley
Written submissions filed for the Third Respondent:	Mallesons Stephen Jaques
Final date for submissions:	6 August 2004
Date of Judgment:	24 September 2004