Westwood v Human Rights & Equal Opportunity Commission [2004] FCA 153 (27 February 2004)

Last Updated: 1 March 2004

FEDERAL COURT OF AUSTRALIA

Westwood v Human Rights & Equal Opportunity Commission
[2004] FCA 153

ADMINISTRATIVE REVIEW – application for extension of time to seek review made 12 years after decision – applicant litigant in person – claims of denial of procedural fairness – application refused – applicable principles


Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5 and 11(1)
Sex Discrimination Act 1984 (Cth) s 52(4)


Reid v Sheiban (1988) HREOCA 5 (28 July 1988)
Kim Hyun Tai v Bolkus (1996) 42 ALD 249
Hunter Valley Development Pty Ltd v Cohen (1984) 3 FCR 344
Brisbane South Regional health Authority v Taylor [1996] HCA 25; (1996-1997) 186 CLR 541
R v Lawrence [1982] AC 510
Vel v Human Rights an Equal Opportunity Commission (1997) 47 ALD 219
















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

N 321 OF 2003


CONTI J
27 FEBRUARY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 321 OF 2003

BETWEEN:	PAMELA WESTWOOD APPLICANT
AND:	HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION FIRST RESPONDENT MEMBERS OF THE COUNCIL OF THE SCOTS COLLEGE SECOND RESPONDENTS (NAME SUPPRESSED) THIRD RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	27 FEBRUARY 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. Application dismissed.

2. The applicant to pay the costs of the second and third respondents of the application.

3. The order of the Court made on 24 July 2003 in the following terms, as corrected, be continued to hereafter read as follows:

‘Pursuant to s 50 of the Federal Court of Australia Act 1976 (as amended), the name of the third respondent, and any published material that might enable the identification of the third respondent to be made, and of any other person referred to in the evidence tendered in the application for leave herein to extend the time for filing legal process, not be published.’

4. There be liberty to apply in relation to Order 3.

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 321 OF 2003

BETWEEN:	PAMELA WESTWOOD APPLICANT
AND:	HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION FIRST RESPONDENT MEMBERS OF THE COUNCIL OF THE SCOTS COLLEGE SECOND RESPONDENTS (NAME SUPPRESSED) THIRD RESPONDENT
JUDGE:	CONTI J
DATE:	27 FEBRUARY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

The context to the proceedings in summary

1 On 17 March 2003 the applicant filed in this Court an application for an order for review, the sole respondent then named being Irene Moss. Ms Moss was then a Hearing Commissioner of the Human Rights and Equal Opportunity Commission (hereafter abbreviated as HREOC). I shall refer to Ms Moss hereafter as the ‘Commissioner’. By s 11(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘Judicial Review Act’), application to review an administrative decision must be made within twenty-eight days of the decision, or within such further time as the Court may allow. The context to the application was that on 31 January 1991, the Commissioner rejected a complaint lodged by the applicant with HREOC that she had been subjected to sexual harassment whilst employed by the second respondent (‘the College’), and in particular by a resident master in the College boarding house where the applicant worked as a matron. The name of that resident master has been suppressed, pursuant to an order which I made at the request of his counsel on 24 July 2003 without objection from the applicant. There had been additionally in place since 4 March 1992 a suppression order made by the Commission, which has never been revoked.

2 The applicant was a trained nurse who commenced employment at the College boarding house in May 1986. She was previously married and has two adult children. On 22 April 1988, the applicant was dismissed from that employment at the College, but she was subsequently reinstated, effectively from 19 May 1988. At all material times, her status has been that of a single woman. During the following six weeks, she was absent on sick leave for what the Commissioner described as various considerable periods of time. Her employment by the College was terminated, effectively from 1 July 1988. She complained thereafter to the Sex Discrimination Commission about her treatment as an employee at the College, and in particular in relation to the termination of her employment. On 3 May 1989 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. On 15 May 1989, the applicant exercised her right nevertheless to have her complaints referred to the Commission for a full hearing, pursuant to s 52(4) of the Sex Discrimination Act 1984 (Cth) (‘the 1984 Act’) then in force.

3 The respondents to the Commission proceedings were ultimately the members of the College Council as second respondent and her supervising resident boarding house master as third respondent. In the context of certain interlocutory proceedings which took place on 26 September 1990, the Commissioner directed that the parties to the proceedings, the media and members of the public should not publish any information that might identify the parties or any witnesses or other persons referred to in the documentation, or the College itself. Also in the course of those interlocutory proceedings, the Commissioner dismissed an application for summary dismissal of the complaint. It was in the context of the subsequent final hearing of those proceedings that on 31 January 1991, the Commissioner found 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 1984 Act. The Commissioner provided twenty pages of reasons for her decision, which were the subject of a confidentiality order.

Applications for review and for extensions of time obtained for that purpose

4 The relief sought by the application for an order for review, originally filed by the applicant in this Court on 17 March 2003 as above stated, was that Commissioner Moss’s decision of 31 January 1991 be set aside under s 5 of the Judicial Review Act. The ground of the application was stated to be denial of procedural fairness, for the following reasons:

‘Hearing Commissioner, Irene Moss failed to put sufficient weight when making her decision, that my physical, emotional, mental health had deteriorated so as not to allow me to be able to present my case, in a fair, adequate and proper manner.

Hearing Commissioner Moss failed to put sufficient weight when making her decision that hearsay evidence was admitted into records of HREOC H89/26 an extraordinary length of time had elapsed since the making of my written complaint, to when the matter came for hearing.’

The orders sought by the application for review were specified as follows:

‘(a) To set aside decision H89/26 made by Commissioner Irene Moss in the Human Rights & Equal Opportunity Commissioner 31:01:91 [Reason for Decision 31:05:1991 enclosed].

(b) A rehearing of the matter HREOC H89/26 in compliance with understanding of and acceptance of the Sex Discrimination Act 1984.’

It is not readily to be perceived how those confusingly expressed reasons could constitute a denial of procedural fairness according to law. In relation to the first ground, it is not stated that the applicant made an adjournment application which was wrongly refused, and if so, when and in what circumstances.

5 The applicant’s first affidavit in support of the application merely annexed five sets of documents, as well as containing assertions, but nothing more, to the effect that the information contained in the annexed documents was true; those five sets of documents comprised in summary the following:

(i) three pages of extracts or documentary summaries set out in chronological sequence, with a covering sheet identifying the same by the following contention:

‘Procedural fairness was denied to me, Pamela Westwood, Complainant HREOC Hearing H89/26, as the Hearing Commissioner failed to put sufficient weight when making her decision, on the fact that my mental, physical and emotional health suffered following the making of my written complaint on June 7, 1988, my subsequent dismissal from my employment at The Scots College Prep School on July 1, 1988, followed by the HREOC decision that as the respondents had refused to conciliate, [July 28 1988] this most important of procedures under the Sex Discrimination Act 1984, would be excluded from the complaints handling process of my complaint.

The following three pages are included to support my claims.’

(ii) six pages of allegations extracted from the applicant’s written complaint to HREOC, with a covering sheet identifying the same by the following contentions:

‘Procedural fairness was denied to me, Pamela Westwood, Complainant HREOC Hearing H89/26, as the Hearing Commissioner failed to put sufficient weight on the fact when bringing down her decision, that an extraordinary length of time had elapsed from the making of my written complaint 07.06.1988, to the hearing 17.12.1990.
The Hearing Commissioner failed to place the correct amount of weight when bringing down her decision on the fact that contemporaneous records were neither kept nor supplied by the respondents.

The following six pages are enclosed in support of my claims.’

(iii) a further six pages of transcript of the HREOC hearing, with a covering sheet containing the following contention and explanation:

‘Procedural fairness was denied to me, Pamela Westwood, Complainant HREOC H89/26, as the Hearing Commissioner Irene Moss failed to put the correct weight when making the decision on the fact that I was denied adequate notice of a hearing, following the appointment of Senior Counsel to assist HREOC.
When Senior Counsel is appointed by HREOC, the parties are then permitted to have legal representation.

explanation:
As the barrister I had found on or about July 15 1990 – Mr Peter Dowding – was committed to a Perth Court on July 25 1990, Mr Charles Waterstreet, barrister, with the assistance of Ms Anne Einfeld, solicitor represented me in an adjournment application:

-	until late August 1900 when Mr Dowding would be free to represent me
-	until legal aid could be obtained from the Legal Aid Commission of New South Wales, for which an application had been made.

The following six pages are enclosed in support of my claims.’

(iv) two pages comprising mainly an extract from a report of Dr Roberts, with a covering sheet containing the following contention and explanation:

‘Procedural fairness was denied to me Pamela Westwood, Complainant, HREOC H89/26, as the Hearing Commissioner did not put the correct amount of weight when making her decision by allowing hearsay evidence to be included into the records of this hearing.

The following 2 pages are enclosed in support of my claims.’

(v) a further two pages of extracts from correspondence and transcript of the HREOC hearing, with a covering sheet containing the following contention and explanation:

‘Procedural fairness was denied to me, Pamela Westwood, Complainant HREOC H89/26, as the Hearing Commission failed to put the correct weight when making her decision, on the fact that pre-hearing, H89/26, during the hearing, H89/26, and post-hearing H89/26, I was denied access to the written allegations against me, contained in written correspondence from the lawyers lawfully – as per the Sex Discrimination Act 1984 representing the respondents.’

(vi) the Reasons for Decision of Commissioner Moss given on 31 January 1991; and

(vii) a document comprising 37 pages of allegations made by the applicant to HREOC, together with transcript extracts of the HREOC hearing.

6 On 14 April 2003, the applicant filed in this Court the following further originating processes:

(i) an amended application for an order for review, this time naming the three present respondents as respondents in lieu of Commissioner Moss, which seeks to set aside the HREOC decision (identified as H89/26 by Commissioner Moss), and the re-hearing of her dismissed application, pursuant to s 5 of the ADJR Act, for the following reasons:

‘1. Hearing Commissioner Irene Moss failed to put sufficient weight on the fact that my mental, physical and emotional health had deteriorated, to the extent that I was disabled in presenting my case in a fair, adequate and proper manner.

2. Hearing Commissioner Irene Moss failed to put sufficient weight when making her decision on the fact that hearsay evidence was accepted into records of HREOC H80/16. This same hearsay would not necessarily be given the same weight when used out of context elsewhere.

3. Hearing Commissioner Irene Moss failed to put sufficient weight when making her decision on the fact that an extraordinary length of time elapsed between the making of my HREOC complaint to the HREOC Hearing, with the resultant extraordinary number of instances of witness testimonies falling into the presumption, assumption or basis "I can’t recall" category.

The basis for the application was stated to be denial of procedural fairness.

(ii) A notice of motion seeking the following orders:

‘1. To set aside HREOC H89/26 31 May 1991, decision under s 81(1) of the Sex Discrimination Act 1984, made by Race Discrimination Commissioner, Irene Moss in the Human Rights and Equal Opportunity Commission.

2. That a re-hearing of the matter HREOC H89/16 be held in compliance with, understanding of, and acceptance of the Sex Discrimination Act 1984.’

7 Also on 14 April 2003, the applicant filed an affidavit in which she set out, over some four pages, eight reasons why procedural fairness was said to have been denied to her by Commissioner Moss; those reasons related to the following matters in summary:

(i) despite her disabling mental emotional and physical health at the time of the HREOC hearing, her cross-examination at that hearing extended over five days;

(ii) the failure of HREOC ‘... to apply for an interim determination’;

(iii) the failure of Commissioner Moss ‘... to put sufficient weight... on the fact that the respondents... included a vexatious confidentiality caveat in their correspondence with HREOC... [which] excluded me from gaining access to replies to my allegations and the counter-allegations being made against me’;

(iv) an elaboration upon the reasons in (iii) immediately above;

(v) the failure of Commissioner Moss to put sufficient weight on the fact that the second respondents to these proceedings (ie the members of the College governing council) took three months to respond to the applicant’s allegations lodged with HREOC;

(vi) the ‘... extraordinary length of time... between the making of my complaint and the hearing of my complaint – two and a half years’;
(vii) the failure of Commissioner Moss to put sufficient weight on the fact that ‘... hearsay evidence was admitted into the formal records of HREOC’; and

(viii) the denial of adequate notice to enable the applicant to present her complaint ‘... in a fair, proper and adequate hearing, following the appointment of Senior Counsel assisting the HREOC’.

I would observe that grounds (vi) and (viii) above are on their face inconsistent. Moreover the authority of the Hearing Commissioner to have granted the relief stated in (ii) above, and the reasons therefor, were not stated.

8 On 22 May 2003 the applicant filed on behalf of herself, as a litigant in person, a further notice of motion seeking the following relief against the present respondents, this time to the exclusion of Commissioner Moss personally (though of course HREOC was named as first respondent):

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

(ii) ‘that an order be made in my favour that Human Rights and Equal Opportunity Commission (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).’

9 The following assertions thereafter appeared in the notice of motion, apparently by way of intended particulars of ground (ii) above:

‘My complaint A v B&C HREOCA (sic) was heard under s 28(3) of the Sex Discrimination Act 1984 in 1991. In 1992 section 28(3) was repealed and replaced with a new definition section 28A. Rather than having to prove actual detriment in addition to unwelcome sexual conduct, the new definition was to provide that a complainant need only establish that a reasonable person would have anticipated that the person harassed would be offended, humiliated or intimidated by the unwelcome sexual behaviour. Under section 28(3) Commissioner Moss, imposed upon my case a very narrow reading of the SDA, despite the fact that an adjudicator/decision-maker always has scope for broader interpretations. Commissioner Moss in her narrowest reading of the SDA perceived that no detriment had flowed to me following these proven acts.

• Intimate touching of the complainant as she sat down on the passengers seat of the respondent’s car.
• The respondent lying on top of the complainant and simulating the sex act and moaning.
• The making of allegations by the respondent concerning the sexual preference of another staff member in the presence of the complainant.

Commissioner Moss’s decision to dismiss my complaint under section 81(1)(a) of the SDA that I was unable to substantiate it, was wrong. A more experienced adjudicator/decision maker with a more receptive attitude to the difficulties of a complainant under SDA would arguably have found in my favour.’

10 Those assertions do not readily yield any actionable basis for administrative review. In any event, the decision of the respondent Commission (ie HREOC), in relation to which the applicant seeks very belatedly administrative review, having been dismissed by Commissioner Moss on 31 May 1991, preceded by almost twelve years the making of the present purported application to this Court.

11 In support of that further notice of motion, the applicant firstly provided an affidavit of nearly six pages in length sworn on 21 May 2003. That affidavit asserted (inter alia) the following matters, in summary:

(i) the applicant was diagnosed with anxiety and depression on 28 September 1987, and on 12 March 1992 she was granted a disability service pension for chronic anxiety and depression; a probable cause of that condition was identified as post traumatic stress disorder (eight medical reports were identified as implicitly supporting that medical thesis, including one from Dr Richard Bryant partly extracted, together with eleven medico-legal assessments, all said to support her claims of mental disability);

(ii) the probable cause of that mental disability was the alleged misconduct of persons in the employ of the College Council;

(iii) Commissioner Moss erred in accepting testimonies provided by or on behalf of the respondents to the present proceedings, which were said to be at best reconstructions of recollections, and to be at worst false and misleading;

(iv) what was presented by HREOC officers to Commissioner Moss was flawed, containing as it did allegations made neither verbally or in writing by the applicant;

(v) Commissioner Moss wrongly permitted hearsay evidence to be given;

(vi) Sir Ronald Wilson, whilst President of HREOC in 1993, disclosed to a third person that the applicant suffered a miscarriage of justice (I should interpolate to record however that in her concluding written submissions to the Court, the applicant acknowledged, to her credit, that Sir Ronald Wilson later effectively withdrew any such expression of view);

(vii) there were unacceptable delays on the part of HREOC officers in dealing with the applicant’s ‘extremely serious allegations’;

(viii) the applicant’s credibility was subjected to forceful attacks, but the same scrutiny was not applied to the counter-claims of the College and the third respondent;

(ix) the HREOC delegate usurped the role of the Tribunal in assessing and accepting the evidence tendered on behalf of the second and third respondents and prejudging the applicant’s complaints;

(x) Commissioner Moss discounted or ignored or failed to understand that there are many different ways a victim of sexual harassment may respond to the harassment, which in the applicant’s case was of an ongoing nature, and which inflicted her with feelings of shame, embarrassment, vulnerability and intimidation;

(xi) Commissioner Moss discounted or ignored the power relationships and gender hierarchy between the victim and the offender;
(xii) Commissioner Moss failed to judge the appropriateness of the applicant’s reactions; and

(xiii) The applicant’s attempts to provide evidence that she had been employed in a sexually hostile work environment and had been sexually harassed by a serial sexual abuser, and to demonstrate that the College had full knowledge of these facts, were met with rejection by HREOC.

The affidavit cited dictum of Einfeld J, formerly a judge of this Court, as to the implications of discrimination in employment contexts practised against women for generations, including implications of a sexual nature, said to have been made by his Honour in Hall Oliver and Reid v Sheiban (1988) HREOCA 5 (28 July 1988). There is apparent difficulty with the foregoing allegations by reason of the absence of any connecting factor between the substance thereof and the applicant’s dismissal from her employment by the College, for what that might ultimately matter.

12 Placed before me by the applicant was additionally a bundle of the following documents (inter alia):

(i) Commissioner Irene Moss’ decision now complained of; and

(ii) extracts of transcripts of evidence given at the Commission hearing before Commissioner Moss.

13 The applicant’s complaint to the Court was denial of procedural fairness occasioned to her by HREOC, for the reasons that:

(i) insufficient weight was given to the circumstances that her mental, physical and emotional health suffered following the making of her written complaint of 7 June 1988 and her subsequent dismissal from the College;

(ii) the College had declined to conciliate her case on 28 July 1988;

(iii) the Commission delayed in deciding her complaints until 19 December 1990;

(iv) she was denied adequate notice of the Commission hearing;

(v) the Commission admitted hearsay evidence in the course of the hearing; and

(vi) the applicant was denied access to written allegations made against her.

Particulars, or at least adequate particulars, were essentially absent in relation to those alleged instances of denial procedural fairness, whether in pleading or affidavit form.

The applicant’s subsequent investigations of avenues of review of HREOC’s dismissal of her complaint and the outcome thereof

14 The applicant provided the following material to the Court relating to steps taken by her for review of HREOC’s rejection of her complaint of 31 January 1991, being additional to what I have already sought to summarise. That material bears directly or indirectly upon the absence of administrative review sought by the applicant from this Court prior to her application filed on 17 March 2003.

15 On 1 August 1991, the applicant filed with the Administrative Appeals Tribunal an application for review of the decision of Commissioner Moss given on 31 January 1991. The applicant acknowledged in that application that the same had been made out of time, her stated reasons for the delay being there stated as follows:

‘I am unable to afford legal opinion. I was not aware of how to appeal a decision nor who I needed to approach.’

The response of the Duty Registrar of the Tribunal was to the effect that the applicant would first need to inform the Tribunal of the legislation which she contended would give it jurisdiction.

16 The applicant appears to have consulted about this time a firm of solicitors Messrs McMahon & Drake, to whom a psychiatric report was furnished on 18 October 1991 by Dr Peter Klug, prepared apparently on their instructions with a view to the applicant commencing litigation against the College and Mr and Mrs Neville Jeffress, at least for workers compensation. The history taken by Dr Klug was assembled in considerable detail, tracing as it did the applicant’s account of the events leading to her dismissal from employment at the College, the loss of her weekend employment at the Sacred Heart Hospice, and her back injury sustained in the course of her employment by Mr and Mrs Jeffress, for which injury she was by then apparently seeking workers compensation relief from WorkCover. Dr Klug’s conclusions were as follows:

‘There appear to be at least two diagnoses in Mrs Westward. The first is an anxiety disorder with panic attacks. She became increasingly emotionally labile during her period at Scots College and increasingly anxious. However, the changes in her mood were associated with agitation, loss of appetite and possible loss of weight and increasing preoccupation with these events, poor concentration and loss of motivation associated with some degree of social withdrawal. This complex of symptoms indicates a diagnosis of depression. Mrs Westward appears to have suffered from mixed features of both anxiety and depression.

The second diagnosis is one of Serepax (oxazepam) dependence and this may very well have led to some kind of state which makes it difficult for Mrs Westward to recall events clearly. It seems there was period of time in which she was quite confused and to some degree oblivious to events around her. There is a past history of Serepax dependence some ten years ago.

The question then arises whether there is some other condition giving rise to her depression/anxiety and her Serepax dependence. In view of the extreme nature of her complaints about her harassment at Scots College, one must consider that it is

(a) real
(b) partly reality based and partly exaggerated
(c) fantasy

If it is (c), then one must consider that Mrs Westward has a paranoid condition. If she does have a paranoid condition, then it may be that she has a paranoid personality disorder or that she has a paranoid psychosis.

I suspect that Mrs Westward has a previous psychiatric history apart from her Serepax dependence. She seems guarded about her history and I note that Dr Jolly found that she was guarded as well. Without further accurate information about this and events at Scots College, it is impossible for me to diagnose her as having a paranoid condition. It is also therefore impossible for me to know for certain whether events at Scots College gave rise to her dysfunction or not. On interview she gave no evidence that she was psychotic but certainly held the beliefs about her mistreatment and about the mistreatment of the boy at Scots College with great conviction.

Certainly her back injury would have caused an obstacle to her improvement from her depression/anxiety and is a risk factor with respect to ongoing Serepax abuse. I do not believe that her back condition as a consequence of her employment with Mr Jeffress is the cause of her psychiatric condition as it is apparent that she had a pre-existing psychiatric condition or conditions during and following her employment at Scots College. Nevertheless it will have exacerbated her depression/anxiety and places her at risk for recurrent episodes if her physical symptoms persist.’

17 It appears that the applicant thereafter sought legal aid with a view to pursuing claims for compensation at least against the College. By letter dated 7 November 1991, the Legal Aid Commission responded as follows:

‘Since speaking to you I have read the decision of the HR & EO Commission and made a number of enquiries.

As you can see from the enclosed copy of the relevant section of the CCH (part of which you have), the grounds for review of the decision are limited. The merits of the decision cannot be reviewed. In other words, you cannot say that the Commission simply made the wrong decision. The only grounds for review are that there was a denial of natural justice or that one of the circumstances set out in section 5 of the Administrative Decisions (Judicial Review) Act (ADJR Act) applies. Section 44 of the Administrative Appeals Tribunal Act (AAT Act) is not relevant at all to your case.

It is usually very difficult to establish that natural justice has been denied even if you firmly believe that it has. It is also most unlikely that you could establish to the satisfaction of the Federal Court any of the circumstances set out in section 5 ADJR Act. I have read the decision and there is nothing which suggests to me that you would be likely to succeed with an appeal. Furthermore, Federal Court appeals are very expensive.

You can apply for legal aid to appeal against the decision but these matters are handled by the Civil Law Section of the Legal Aid Commission. The Commission has a means test and a merit test. If the solicitor who assesses your application believes that you do not have a reasonable chance of succeeding with an appeal, the application will be rejected. I enclose an Application for Legal Aid form which you should complete and send to the "Civil Law Referrals" section of the Legal Aid Commission. If you do this you should attach a letter explaining in as much detail as possible why you think there was a breach of natural justice or an error of law etc. State that I have a copy of the decision and the person who assesses your application can obtain it from me.’

It will be seen from the above that the applicant was thereby put on notice, at least by that time, as to the limited scope of administrative review, quite apart from the Legal Aid Commission’s discouraging view as to her prospects of success in that regard. Earlier Ms Judith Gibson, a lawyer apparently associated with the Women’s Legal Resources Centre, had given the applicant a negative view as to the applicant’s prospects of ‘appealing’ against the decision of Commissioner Moss (see the Centre’s letter of 8 November 1991 addressed to the applicant). The applicant responded by letter dated 5 December 1991, setting out in detail the circumstances of her complaints against the College and the third respondent, the essence of which already appears in these reasons. The Tribunal wrote back by letter of 16 December 1991 addressed to the applicant and containing the following initial discouraging observation:

‘The holding of a preliminary conference is not an option in this instance as there has been no indication from you of any legislation which you contend would give the Tribunal the jurisdiction to review your matter.

You also request that the application fee be waived because of your impecunious circumstances. Unfortunately there is no legislative provision for the Tribunal to waive the payment of application fees on hardship or any other grounds.’

18 The applicant then turned unsuccessfully to the Office of Legal Aid and Family Services for assistance, its negative response of 27 May 1992 being as follows:

‘I refer to your letter of 5 April 1995 (sic), with attachments, in relation to your request for Commonwealth Financial assistance for possible further action concerning your complaints under the Sex Discrimination Act 1988 that were dismissed by the Human Rights and Equal Opportunity Commission.

The Act makes no provision for an appeal against a decision of the HR & EOC. However, such a decision may be subject to a review by the Federal Court pursuant to the provisions of the Administrative Decisions (Judicial Review) Act 1977. There is a good deal of difference between the process of review and an appeal, and it seems that the advice to which you refer in the third paragraph of your letter was directed at possible AD(JR) Act proceedings. In that regard, has any solicitor suggested to you a favourable view of your case? If so, may I have a copy.

I am currently seeking a copy of the HR & EOC decision in your case. As it is the practice of this Office to seek the advice of relevant Government agencies in relation to possible public interest or test case elements in particular matters, I am also seeking the views of the HR & EOC in this regard. Their comments will not of course be determinative in regard to your application.

In the meantime, would you please provide me with the name and address of the solicitors who have indicated that they will act for you if financial assistance is granted (of course I am not saying at this stage that it necessarily will be).

Also, in regard to your allegations that both you and a young boy in your care were subjected to at least attempted sexual assaults by the respondent, I would like to know if these incidents were reported to the police and, if so, the outcome of your complaints.’

There is no suggestion in the evidence as to reports made to the Police, either by the applicant or by any pupil, or by any parent of a pupil, in relation to incidents of the nature or description expressed or implied in any of the applicant’s viva voce or documentary evidence. It may be observed that the administrative relief, whereof the above letter speaks, is that which about eleven years later, the applicant now seeks to pursue.

19 The applicant thereafter received a negative response from the Office of Legal Aid and Family Services bearing date 3 June 1992, in the following terms:

‘I refer to your faxed letter of 31 May 1992 concerning your request for Commonwealth financial assistance in order to seek Judicial Review of your complaints under Sex Discrimination Act 1988 that were dismissed by the Human Rights and Equal Opportunity Commission in its decision of 14 February 1992.

Your letter does not address the questions I put to you in my letter of 27 May 1991. In particular you have not provided me with the name of a solicitor who has indicated that he or she will act for you if assistance is granted. There is a difference between a firm offer of this nature and the rather noncommittal expressions of support from several practitioners to which you have referred.

Also, the guidelines of the Public Interest and Test Cases Scheme, a copy of which was forwarded to you with our letter of 16 December 1991, require that an applicant must have a case with reasonable prospects of success. It follows that assistance cannot be granted for the purposes of perusing transcript to see whether or not you might have a case. Financial assistance is not available for the purposes of conducting fishing expeditions and you will need to provide me with a short, reasoned opinion from a legal practitioner providing me with some details as to how the HR & EOC processes were wrong in terms of the Administrative Decisions (Judicial Review) Act 1977, and how the proposed review is likely to be of benefit to you with the likely costs of those proceedings being born in mind. Such an opinion might also provide us with some indication of the practitioner’s level of support for your case.

Until I am provided with such information, I will not be able to proceed further with your application.’

20 No further steps appear to have been subsequently taken by the applicant, at least of any litigious significance, with a view to vindicating what she claims to have been serious misconduct on the part of the third respondent, or of another teacher at the College whom the applicant originally joined as an additional respondent to the HREOC proceedings, or on the part of the College vicariously, until her commencement of the present proceedings. The intervening delay of eleven years was explained by the applicant to reside in the circumstance that her alleged unawareness, until relatively recent times, of her entitlement to represent herself in proceedings in this Court for the relief she presently seeks. That claim of lack of awareness is inconsistent with a file note made by Ms Merryl Lees of the Human Rights Commission of a purported conversation with the applicant on 28 February 1991, as follows, ‘Workers Comp claim lawyers have said they won’t do that case because PW lost at the HREOC – PW intends to do it herself’, and perhaps also with the applicant’s reported statement to a journalist, published in the Daily Mirror of 4 February 1991 under the heading ‘School Sex Case Appeal’, that ‘... she plans to lodge an appeal in the Federal Court’. All that material was placed in evidence by the applicant. Apart from those two references, I do not think that explanation is credible.

The respondents’ case for denial of leave to the applicant to pursue her claims for administrative relief

21 I should add for completeness that the 1984 Act was repealed on 13 April 2000 by the Human Rights Legislation Amendment Act (No 1) 1999 (Cth), and by that amending legislation, the function of hearing and determining complaints from HREOC was removed to this Court and the Federal Magistrates Court. I draw attention in that regard to s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth). However by virtue of s 8 of Acts Interpretation Act 1901 (Cth), the applicant’s complaints would remain subject to s 28 of the 1984 Act. If I was minded to grant leave to the applicant to bring her application for administrative review out of time, and if any such application was to be successful, she would be entitled to commence proceedings in this Court or the Federal Magistrates Court for a hearing on the merits of her claim. Unlike the situation in relation to HREOC, the Court would be empowered to award costs against the unsuccessful party.

22 After commencement of the current proceedings, the College’s solicitors, and also the solicitors for the third respondent, acted promptly to enquire as to the whereabouts of witnesses and documentary records relating to the matters raised by the applicant and otherwise connected to the disputes involving the College, and the applicant, directly or indirectly. Of six persons who testified at the Commission hearing, the solicitors for the College have identified to the Court three witnesses whose present whereabouts are unknown. Moreover the College principal Mr Renney, who was ultimately responsible for the applicant’s dismissal from employment at the College, died some years ago, though a signed albeit unsworn statement made by him has been located; it would appear however that Mr Renney did not testify at the hearing of the HREOC proceedings, and I would be inclined not to attribute much weight to that factor. It was also stated by counsel for the College that the member of the firm of solicitors having carriage of the proceedings on behalf of the third respondent had left the firm’s employ many years ago, and further that senior counsel, who appeared for the College in the HREOC proceedings, was appointed to this Court some years ago, and was therefore no longer available. Those latter two matters also do not seem to me to be compellingly significant. Different considerations apply however in relation to important witnesses now dead or whose whereabouts is presently unknown. One of those persons in particular was described controversially by the applicant ‘... as a witness to many... simulated sexual acts performed on my person by [the third respondent]’.

23 In addition, counsel for the College drew to the following circumstances of asserted prejudice to the College which would arise if the present application was to be granted:

(i) the applicant had purportedly identified in material provided to HREOC, at the time of the proceedings conducted by Commissioner Moss, the names of 39 College students said by her to have witnessed certain sexual misconduct the subject of her allegations; the logistical task of locating and interviewing each of those persons would be obviously formidable as well as very onerous and costly;

(ii) the College and the third respondent had already suffered damaging media exposure, albeit following the dismissal by Commissioner Moss of the HREOC proceedings, and notwithstanding the suppression order that had been made; that media excerpt is in evidence;

(iii) there was no satisfactory evidence, at least of a corroborative nature, that at all times since cessation of her employment by the College, the applicant has been unemployed, living in impecunious circumstances or mentally disabled, such that she was not capable of much earlier filing an application for judicial review; Dr Klug’s report was said to have implicitly demonstrated on the contrary that she was ‘competent’ to undertake a task of that kind; and

(v) no satisfactory explanation had been given for the long period of delay in commencing the present proceedings for review; on the contrary it was apparent that at least the Legal Aid Commission had explained many years ago the nature of the process the applicant needed to confront, albeit that it gave her no encouragement of any prospect of success in any legal avenue she might undertake.

24 Moreover in relation to the decision of Commissioner Moss, the following submissions (inter alia) were advanced on behalf of the College, partly by way of explanation of what took place before HREOC, partly by way of grounds for refusing the application, and partly by way of explanation of matters which the applicant mentioned directly or indirectly, to the Court:

(i) Commissioner Moss made her decision in 1991 by reference to s 28(3) of the 1984 Act; and that it was subsequent to her decision in 1992 that s 28(3) was repealed and replaced by s 28A, without any purported retroactive operation;

(ii) the fact that a different decision-maker might have reached a more favourable decision constituted no reviewable error;

(iii) the alleged failure of Commissioner Moss to afford sufficient weight to the various matters the applicant now sought to raise did not constitute reviewable error;

(iv) the applicant’s alleged disablement mentally, emotionally or physically was irrelevant to any issue as to denial of procedural fairness;

(v) any subsequent lack of access on the applicant’s part to ‘replies and counter allegations from the respondents’ was offset by the availability of the College material at the HREOC hearing, comprising as it did part of its referral file;

(vi) the applicant had access in particular to the College confidential material produced to HREOC, prior to the hearing before Commissioner Moss;

(vii) no ground for administrative review was demonstrated by the circumstances that Commissioner Moss may have given no due weight to the fact of the delay of about three months taken by the College to reply to HREOC in relation to the applicant’s allegations;

(viii) the absence of contemporaneous records of enquiries held by the Commissioner or the College, including absence of statement of witnesses, demonstrated no ground for viable administrative review;

(ix) the admission by Commissioner Moss of hearsay evidence into the ‘formal records of HREOC’ constituted no ground for administrative review, at least as at the time any such evidence was admitted;

(x) the alleged failure of Commissioner Moss to take into account issues concerning the appointment of senior counsel assisting HREOC constituted no ground for review;

(xi) the various contentions of the applicant as to Commissioner Moss failing to give sufficient weight to the applicant’s mental, physical and emotional health, following the making of her written complaint, and to the fact that contemporaneous records were neither kept nor supplied by any of the respondents to the present application for review, could at best only have related to the weight of evidence, and not to any ground for administrative review;

(xii) the alleged failure of HREOC to give adequate notice of the appointment of senior counsel to assist the enquiry constituted no ground for administrative review;

(xiii) the admission of hearsay evidence by Commissioner Moss, which was not in any event identified by the applicant, was not demonstrative of error;

(ix) no ground of review was demonstrated by the imposition by Commissioner Moss of confidentiality restrictions in the pre-hearing phase of her inquiry; and

(x) no ground of review was demonstrated by the alleged ignoring, discounting or failure to recognise, on the part of Commissioner Moss, ‘the power relationships and gender hierarchy between the harasser and complainant...’, nor by the dismissal of the applicant’s complaint as allegedly sending ‘a dangerous antisocial and aggressive message to all women’.

25 What I have above catalogued thus far serves to exemplify the fundamental misconceptions of the applicant as to the scope of legitimate administrative review, and her lack of understanding of what I would describe as insurmountable difficulties confronting the applicant to make out a viable case for administrative review, whether so belatedly or in any event at all. I could further record other misconceived or futile submissions of the applicant which Counsel for the College and the third respondent have exhaustively reproduced and answered. It suffices to say that the applicant’s claims and submissions rose no higher in substance and reality than unspecific assertions as to matters essentially irrelevant to or unsupportive of the relief she would now seek from the Court. Her submissions demonstrated a fundamental misunderstanding of the nature, parameters and limitations of administrative review, and of the significance of the time that has elapsed since the occurrence of the matters which the applicant alleges.

26 The applicant sought to explain her delay in bringing the present proceeding by reference to a very large number of medical reports which I have already foreshadowed (apart from that provided by Dr Klug to which I have already referred). They were made mainly in the years 1987 to 1991, and largely comprised psychiatric assessments. But of course the subject proceedings have been brought many years later, and although those reports reveal a person subjected to considerable distress, they provide little assistance to any viable explanation for the long delay in commencing the subject proceedings. The exception relates to a recent brief report of 27 May 2003 of the Hunter Centre for Gynaecological Cancer, which speaks of this unfortunate lady’s then recent major surgery for recurrence of cancer, and the likelihood of further recurrences in the future. The applicant frankly conceded to the Court her appreciation of the ‘[v]ery difficult task’ which she faced. She protested to the Court that the reason for delay in bringing the present application was that ‘... I was mentally disabled and I didn’t have the money to approach the Federal Court, I knew I had human rights, and I was trying other avenues’, but whatever those avenues might have been, they do not appear to have involved anything in the nature of legal proceedings. I should also mention for completeness that Dr Klug’s report, which I have earlier extracted in full, tends, on balance, to be more unhelpful than of assistance to the case of the applicant for this Court’s belated intervention.

27 One further matter of history which should be formally recorded is that the applicant brought proceedings unsuccessfully in the Compensation Court of New South Wales against the College and Neville Jeffress Pty Limited for workers compensation arising out of her employment by both entities, being proceedings which were dismissed on 29 May 1992. In those proceedings, she was legally represented. I have already referred to Mr and Mrs Jeffress in [16] above. It appears that her employment with Neville Jeffress Pty Limited commenced on 21 January 1989 and was terminated at the end of January 1990, though she was paid workers compensation until 4 October 1990. Those circumstances at least do not assist the applicant’s endeavours to explain the long delay which has occurred in bringing the subject application.

Principles concerning delay in commencement of proceedings applicable to the subject proceedings

28 In Hunter Valley Development Pty Ltd v Cohen (1984) 3 FCR 344, Wilcox J set out at 348-349 the principles which may guide the exercise of the Court’s discretion in extending the time for commencing out of time proceedings for administrative review, being principles which have since been confirmed on many occasions, subject to one qualification which will later be mentioned. Those principles may be summarised as follows:

(i) although the Judicial Review Act does not in terms place any onus upon an applicant for extension, and special circumstances need not be shown, the court will not grant the application unless positively satisfied that it is proper to do so, and the prescribed period is not to be ignored; indeed it is the prima facie rule that proceedings commenced outside that period of time will not be entertained;

(ii) it is a pre-condition to the exercise of discretion in extending the time for making any such application that the applicant for extension must show an acceptable explanation of the delay, and that it is fair and equitable in the circumstances to extend the time;

(iii) a distinction is to be drawn 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, and a case where the decision-maker was allowed to believe that the matter was finally concluded; the reasons for that distinction are said to be not only the need for finality of disputes, but also the fading from the human memory problem that inherently arises the longer review of a decision is delayed;

(iv) any prejudice to the respondent to the proceedings, including any prejudice in defending the proceedings occasioned by the delay is material; moreover the mere absence of prejudice is not enough to justify the grant of an extension; in that context, public considerations may often intrude; thus a delay which may result, if the application is successful, in the unsettling of other people is likely to prove fatal to the application;

(v) the merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted; and

(vi) considerations of fairness as between the applicant and other persons otherwise in a like position are also relevant to the manner of exercise of the Court’s discretion.

29 The qualification to the foregoing longstanding dictum of Wilcox J, which I have foreshadowed, was made by Hill J in Kim Hyun Tai v Bolkus (1996) 42 ALD 249 at 252 reading as follows:

‘The comment of his Honour in respect of the first guideline, that it is a pre-condition to the exercise of discretion that the applicant show an acceptable explanation of a delay might, if seen as a statement of law, require some modification having regard to the decision of the full court in Comcare v A’Hearn (1993) 119 ALR 85 at 88. 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 for review.

In the present case no explanation at all has been given. The failure to give an explanation is a matter to be taken into account. It does not, however, in my view, lead to the conclusion that the application should automatically be disallowed.’

30 In Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996-1997) 186 CLR 541, the High Court discussed the operation of the principle concerning the grant of extensions of time in which to bring proceedings prima facie barred by time limitation. Justice Dawson said at 544 that he agreed with McHugh J that ‘once the legislature has selected a limitation period, to allow the commencement of an action outside that period is prima facie prejudicial to the defendant who would otherwise have the benefit of the limitation’. Justice McHugh said at 553-554 that ‘[t]he discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question’, and that therefore an applicant for leave ‘has the positive burden of demonstrating that the justice of the case requires that extension’. Justice McHugh earlier cited at 551 the well known observation of Lord Hailsham in R v Lawrence [1982] AC 510 at 517 the general perception that ‘[w]here there is delay the whole quality of justice deteriorates’. Moreover in the joint judgment of Toohey and Gummow JJ at 547, their Honours observed that ‘[t]he discretion conferred by the subsection is to order an extension of the limitation period. It is a discretion to grant, not a discretion to refuse, and on well established principles an applicant must satisfy the court that grounds exist for exercising the discretion in his or her favour. There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion. But the ultimate onus of satisfying the court that time should be extended remains on the applicant’.

31 Moreover as Branson J observed in Vel v Human Rights an Equal Opportunity Commission (1997) 47 ALD 219, it is possible that the justice of a particular situation may require an extension of time within which to seek administrative review, even when the applicant fails to give an explanation for the delay. That observation was in the context of an applicant’s limited command of the English language and his limited understanding of the workings of the Australian legal system. Her Honour found herself compelled nevertheless to conclude that the discriminatory conduct, having occurred more than ten years earlier, did not justify the exercise of a discretion in favour of an applicant for administrative review, given the prejudice to the Commonwealth if the decision of the Commissioner there involved was to be set aside.

The operation of the above principles upon the circumstances of the present application

32 The applicant has provided no satisfactory explanation for the very long period of time which elapsed since the decision of HREOC (Commissioner Moss) was made on 31 January 1991 adversely to the applicant. The length of time involved between that date and the filing of the present application on 17 March 2003 may well be without precedent in relation to judicial review of administrative decisions. The termination of the applicant’s employment by the College had earlier taken place effectively from 1 July 1988.

33 The applicant had been aware of the legal process of judicial review of decisions made by HREOC at least since the Legal Aid Commission wrote to her on 7 November 1991 (see [17] above). Moreover the Office of Legal Aid Services wrote to her subsequently on 27 May 1992 (see [18] above), and the Attorney General’s Department wrote to her on 3 June 1992 (see [19] above), on each occasion in relation to the subject of judicial review of the HREOC decision. It may have been the case that the applicant had no financial means to undertake judicial review with the assistance of legal representation, but the applicant has not adduced any evidence, or at least sufficient satisfactory evidence, in that regard. In any event, she has made the present application without apparent legal assistance. It may be observed for completeness that the applicant did have the benefit of legal assistance in her workers compensation proceedings, which were dismissed on 29 May 1992 (see [27] above).

34 I would infer that the circumstances said by the applicant to give rise to her present application are highly controversial, and likely to be the subject of protracted and costly proceedings in this Court, if the present application for leave is granted. To have those circumstances reinvestigated and litigated, after the lapse of so many years, would doubtless occasion substantial distress and inconvenience to the many people who would be likely to be involved, or potentially so, directly and indirectly. The memories of likely or prospective witnesses would obviously have faded significantly after the lapse of time that has occurred since the events of which the applicant has complained.

35 The circumstances of the applicant are not readily comparable to those involved for instance in Vel, where the applicant for administrative review had a limited command of the English language, such as to have occasioned to the presiding judge the initial concern or hesitation which she expressed. The evidence in the present proceedings demonstrates conversely that the applicant has retained at all times significant intellectual capacity and energy to pursue her litigious claims, especially against the College, in relation to whom she has obviously harboured a great deal of resentment and bitterness by reason of her dismissal as an employee. Moreover the report of Dr Klug, which I have earlier partly extracted, and which was tendered by the applicant, tends to raise more imponderable concerns potentially in relation to the circumstances underpinning the present application, than to provide viable reasons for the delay of the applicant in the pursuit of the complaints the subject of the applicant’s present application.

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.

37 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.

38 The application must be dismissed with costs.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated: 27 February 2004

Applicant appeared in person
Counsel for the Second Respondent:	Mr G L Turner
Solicitor for the Second Respondent:	Colin Biggers & Paisley
Counsel for the Third Respondent:	Ms K Eastman
Solicitor for the Third Respondent:	Mallesons Stephen Jaques
Date of Hearing:	24 July 2003
Date of Judgment:	27 February 2004