Cheng v Bavarian Hospitality Group Pty Ltd [2009] FMCA 114 (16 February 2009)

Last Updated: 26 February 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHENG v BAVARIAN HOSPITALITY GROUP PTY LTD

[2009] FMCA 114

HUMAN RIGHTS – Disability discrimination – where applicant failed to file amended application despite receiving legal advice – where leave sought to sue individuals.

Applicant:

MARK CHENG

Respondent:

BAVARIAN HOSPITALITY GROUP PTY LTD T/AS THE ARGYLE BAR

File Number:

SYG 2976 of 2008

Judgment of:

Raphael FM

Hearing date:

16 February 2009

Date of Last Submission:

16 February 2009

Delivered at:

Sydney

Delivered on:

16 February 2009

REPRESENTATION

For the Applicant:

In person

Solicitors for the Respondent:

Enterprise Law

ORDERS

(1) Application dismissed.
(2) Applicant to pay the Respondent’s costs assessed in the sum of $1,500.00.
(3) Leave to amend application refused.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2976 of 2008

MARK CHENG

Applicant

And

BAVARIAN HOSPITALITY GROUP PTY LTD T/AS THE ARGYLE BAR

Respondent

REASONS FOR JUDGMENT

1. On 17 November 2008 Mr Cheng, the applicant, commenced his proceedings in this Court by filing an application and an affidavit. He also filed, as required, a copy of the letter from the Australian Human Rights Commission terminating his complaint, which was alleged to have been made against the Bavarian Hospitality Group Pty Ltd trading as the Argyle Bar.
2. Part B of the applicant’s complaint to HREOC was also filed. Under the question “who are you complaining about?” the applicant named “Loy Catada, Nikki, Zach and current management (to investigate)” of the Argyle Bar at 18 Argyle Street, The Rocks. The form also mentioned that “Loy was bar manager, Nikki and Zach were managing staff”.
3. The application which was made on 17 November 2008 was addressed to Zach, Loy Catada and Argyle Bar staff and the address given was the Argyle Bar. I am not initially sure how the proceedings were served but on 16 December 2008 the Bavarian Hospitality Group Pty Ltd, which appears to be the company with whom the Australian Human Rights Commission corresponded in relation to this matter, appeared through their solicitor Ms McNaughton. At the first directions hearing Mr Cheng also appeared.
4. Mr Cheng advised the Court that the people he really wanted to sue in this matter were Zach and Loy Catada. He does not have Zach’s surname and he does not know either of their addresses. His complaint against them is that they declined him employment, knowing full well that he suffered from a disability which appears to me to be of a psychological nature. I explained to Mr Cheng that in my view anything that either of these two people did would have been done on behalf of their employer, the Bavarian Hospitality Group and it seemed to me that company was the most appropriate defendant. Mr Cheng was adamant that he wished to sue these two individuals so I made an order in the following form:
   • “1. Proceedings stood over until 10 am on 16 February 2009.
   • 2. Applicant to file and serve an Amended Application and comply with Part 41 Rule 41 of the Federal Magistrates Court Rules 2001, such application to clearly identify the persons said to be respondents and clearly indicate the connection between the alleged refusal of employment and the applicant’s sex or disability.
   • 3. The Amended Application to be filed on or before 16 January 2009.”
5. This was not all that was done. I explained to the applicant that it was important that he really understood the nature of the proceeding he was starting and suggested to him that he go to see the Disability Discrimination Legal Centre. In order to ensure that he got seen by this group, the Court wrote a letter to them on 16 December 2008. The Court sent the DDLC a copy of the incomplete application that the applicant had filed. On 16 January 2009 the DDLC wrote a letter to the Court advising that Mr Cheng had attended the centre on a number of occasions when he was provided with advice on his application. Mr Cheng was also referred to the Kingsford Legal Centre for advice on the sex discrimination aspects of his application.
6. Notwithstanding the assistance that the applicant was provided with, no amended application was filed. When the matter came into Court this morning, the applicant provided me with what he claimed was a further draft application but which from what I can see is, with the exception of an application for leave to sue Mr Catada and “Zach” individually, exactly the same as the one which has been before the Court before.
7. Ms McNaughton, who appears for the original respondent, the employer company, seeks that the original application be dismissed.
8. It is probably best that I deal with the matters consecutively. The applicant wishes to file an amended application which does not mention the original respondents, from which I assume he does not wish to proceed against that company. Mr Cheng has confirmed to me that he does not wish to proceed against the company. In those circumstances, I dismiss the application against the company. I order that the applicant pay the respondent’s costs which I assess in the sum of $1,500.00.
9. I am not prepared to give Mr Cheng leave to amend the application so that the only respondents are the two named individuals. It is not appropriate to commence proceedings against people whose names and addresses are not known in full. They cannot be served (as I understand it, neither remain employees of the original respondent). Having a case such as this on the court files indefinitely is tantamount to an abuse of process. More seriously, Mr Cheng has not complied with the Court order made on 16 December 2008 notwithstanding the fact that he has clearly had some legal advice and I do not see why the Court should grant him any further indulgence. Leave to amend is refused.
10. The effect of these two decisions is that the total application is dismissed.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 18 February 2009