Zheng v Beamish - [2004] FCA 512

FEDERAL COURT OF AUSTRALIA
Zheng v Beamish [2004] FCA 512
PRACTICE AND PROCEDURE – application for extension of time in which to file a notice of appeal – where delay is not great and explicable – whether proposed grounds of appeal disclosed an arguable case – application dismissed
Federal Court Rules O 52 rr 15(1) and 15(2)
Jess v Scott (1986) 12 FCR 187 referred to
NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24 referred to
ZHONG HAI ZHENG v JEWELS LOUISE BEAMISH
N 450 of 2004
ZHONG HAI ZHENG v JEWELS LOUISE BEAMISH
N 451 of 2004
MOORE J
29 APRIL 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 450 of 2004

BETWEEN:

ZHONG HAI ZHENG
APPLICANT

AND:

JEWELS LOUISE BEAMISH
RESPONDENT

N 451 of 2004

BETWEEN:

ZHONG HAI ZHENG
APPLICANT

AND:

JEWELS LOUISE BEAMISH
RESPONDENT

JUDGE:

MOORE J

DATE OF ORDER:

29 APRIL 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS IN PROCEEDING N 450 of 2004 THAT:
1.The application for an extension of time to file and serve a notice of appeal be dismissed.
2.The applicant pay the respondent's costs of the application.

THE COURT ORDERS IN PROCEEDING N 451 of 2004 THAT:
1.The application for an extension of time to file and serve a notice of appeal be dismissed.
2.The applicant pay the respondent's costs of the application.

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 450 of 2004

BETWEEN:

ZHONG HAI ZHENG
APPLICANT

AND:

JEWELS LOUISE BEAMISH
RESPONDENT

N 451 of 2004

BETWEEN:

ZHONG HAI ZHENG
APPLICANT

AND:

JEWELS LOUISE BEAMISH
RESPONDENT

JUDGE:

MOORE J

DATE:

29 APRIL 2004

PLACE:

SYDNEY

REASONS FOR JUDGMENT

This judgment concerns two applications ("the applications") by Mr Zheng ("the applicant") for an extension of time to file and serve notices of appeal to appeal against two judgments of a Federal Magistrate of 19 February 2004 (Beamish v Zheng [2004] FMCA 60 and Zheng v Beamish [2004] FMCA 61). In the first judgment, the Federal Magistrate determined that the applicant had sexually harassed Ms Beamish ("the complainant") and in the second judgment, rejected a complaint by the applicant that the complainant had behaved in an offensive manner towards him because of his race.
Under Order 52 r 15(1) of the Federal Court Rules, the applicant was required to file and serve on the complainant a notice of appeal by 11 March 2004. On 31 March 2004, the applicant filed the applications along with two supporting affidavits and two draft notices of appeal. The supporting affidavits do not address the issue of why an extension should be granted, but rather address the grounds of the appeal. The grounds contained in the notices of appeal are substantially the same as, if not identical to, those contained in the supporting affidavits. As to the application concerning the judgment about…

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 Zheng v Beamish

Details

AGLC: Zheng v Beamish [2004] FCA 512
Case: [2004] FCA 512
Decision Date: 29 APRIL 2004

CaseChat Overview and Summary

In Zheng v Beamish, the applicant sought an extension of time to appeal the Federal Magistrate's decision. The applicant, unrepresented and using an interpreter, argued for an extension based on an acceptable explanation for the delay, the correctness of his account of events, and his absence from work during part of the alleged harassment period. The Federal Magistrate had previously found the applicant guilty of sexual harassment, awarding the complainant damages and an apology. The applicant contested this finding, asserting his absence during some of the harassment period.

The legal issues before the court included whether the applicant's explanation for the delay in filing the appeal was acceptable, whether the Federal Magistrate's findings on the harassment allegations were correct, and if the applicant was indeed absent from work during part of the harassment period. The court needed to determine if these factors justified an extension of time and if the applicant's appeal had any merit.

The court examined the reasons for the delay in filing the appeal, the correctness of the Federal Magistrate's findings, and the applicant's presence at work during the harassment period. It found that the explanation for the delay was not acceptable, upheld the Federal Magistrate's findings as being correctly based on substantial evidence, and confirmed that the applicant was present at work during the relevant period. Consequently, the court denied the application for an extension of time.

The court's decision resulted in the dismissal of the applicant's appeal, with no extension of time granted. The findings and conclusions of the Federal Magistrate were upheld, and the applicant's claims were rejected.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

MOORE J

The applicant was unrepresented at the hearing. He addressed the Court through an interpreter. It was apparent that his case in support of the extension of time had two or possibly three elements. The first was that there was an acceptable explanation for the delay. The second was that his account of the events on which the two judgments were based, was correct and had been wrongly rejected by the Federal Magistrate. The third, which was really an aspect of the second, was that at least during some of the period in which the Federal Magistrate found he had sexually harassed the complainant (who was a co-worker), the applicant had not been present at work and had been on long service leave. Before discussing these matters it is convenient to refer to the judgments of the Federal Magistrate.Federal Magistrate's decision On 18 March 2003 the complainant made an application to the Federal Magistrates Court under s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) seeking, among other things, a declaration that the applicant had engaged in sexual harassment contrary to s 28B of the Sex Discrimination Act 1984 (Cth), an order requiring the respondent to apologise and monetary compensation. On 26 November 2003 the applicant made an application to the Federal Magistrates Court under s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) seeking damages for 'racial harassment'. The Federal Magistrate treated this claim as asserting a breach of s 18C of the Racial Discrimination Act 1975 (Cth). The Federal Magistrate heard the two applications together on 10 February 2004 and gave judgment in each matter on 19 February 2004. The gist of the complaint made by the complainant about sexual harassment was that the applicant had made, over a period of time, inappropriate comments to her of a sexual nature, attempted to touch her in a sexual way and offered to pay her money for sexual favours. In relation to these allegations, his Honour accepted the account of the complainant and rejected the account of the applicant who denied they had occurred. His Honour found that:The statements made by [the applicant] was clearly conduct of a sexual nature. So was his action in attempting to touch [the claimant's] breasts. The conduct was unwelcome. His offer to pay $200 for sex was an unwelcome request for sexual favours.The workplace in which [the applicant and the claimant] worked was a fairly rough and tumble place in which lighthearted behaviour was tolerated. In the circumstances, a certain amount of sexual banter could have been anticipated. However, [the applicant's] conduct was persistent and went beyond anything that could be described as lighthearted sexual banter. [The claimant's] reactions to his conduct should have made clear that it was unwelcome. In the circumstances, a reasonable person would have anticipated that [the claimant] would have been offended, humiliated or intimidated by [the applicant's] persistent conduct. In particular, the attempt to touch her breasts was unacceptable and the offer of money for sex was grossly demeaning.His Honour held that the applicant had breached s 28B(2) of the Sex Discrimination Act 1984 (Cth) and that the complainant was entitled to an apology and damages for non economic loss in the sum of $1000. In assessing the evidence and determining whether the events as alleged by the complainant had occurred, his Honour noted, correctly, that because of the seriousness of the allegations he had to be comfortably satisfied that the events had occurred. The Federal Magistrate indicated he had a 'high degree of satisfaction' that the allegations made by the complainant were true.

Ratio Decidendi

Legal Principle Established

Established by: MOORE J

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IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 450 of 2004

BETWEEN:	ZHONG HAI ZHENG APPLICANT
AND:	JEWELS LOUISE BEAMISH RESPONDENT
N 451 of 2004
BETWEEN:	ZHONG HAI ZHENG APPLICANT
AND:	JEWELS LOUISE BEAMISH RESPONDENT

JUDGE:	MOORE J
DATE OF ORDER:	29 APRIL 2004
WHERE MADE:	SYDNEY

JUDGE:	MOORE J
DATE:	29 APRIL 2004
PLACE:	SYDNEY