Zoltaszek v Downer EDI Engineering Pty Limited [2010] FMCA 100 (2 February 2010)

Federal Magistrates Court of Australia

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Zoltaszek v Downer EDI Engineering Pty Limited [2010] FMCA 100 (2 February 2010)

Last Updated: 23 February 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ZOLTASZEK v DOWNER EDI ENGINEERING PTY LIMITED

[2010] FMCA 100

HUMAN RIGHTS – Application for an extension of time under s.46PO of the Australian Human Rights Commission Act 1986 (Cth).

Australian Human Rights Commission Act 1986 (Cth), ss.46PO, 46PH Disability Discrimination Act 1992 (Cth), ss.15, 17 Federal Magistrates Court Rules 2001, rr.4.05, 41.02A

Bahonko v Royal Melbourne Institute of Technology [2006] FCA 1325 Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344; 58 ALR 305 Ingram-Nader v Brinks Australia Pty Ltd (2006) 151 FCR 524; [2006] FCA 624 Lawton v Lawson [2002] FMCA 68 Lucic v Nolan (1982) 45 ALR 411 Phillips v Aust. Girls’ Choir & Anor [2001] FMCA 109 Ralkon Agricultural Co Pty Ltd v Aboriginal Development Commission [1982] FCA 153; (1982) 43 ALR 535; 69 FLR 328

Applicant:

ZENON ZOLTASZEK

Respondent:

DOWNER EDI ENGINEERING PTY LIMITED

File Number:

SYG 1569 of 2009

Judgment of:

Barnes FM

Hearing date:

2 February 2010

Delivered at:

Sydney

Delivered on:

2 February 2010

REPRESENTATION

Applicant:

In person

Solicitors for the Respondent:

Fisher Cartwright Berriman Pty Ltd t/as FCB – Workplace Lawyers & Consultants

ORDERS

(1) The applicant’s application for an extension of time under s.46PO(2) of the Australian Human Rights Commission Act 1986 (Cth) is allowed.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 1569 of 2009

ZENON ZOLTASZEK

Applicant

And

DOWNER EDI ENGINEERING PTY LIMITED

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. On 1 July 2009 the applicant filed an application in this court in relation to conduct said to constitute discrimination under the Disability Discrimination Act 1992 (Cth). At the time of his application s.46PO(2) of the relevant legislation (now known as the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act)), provided that an application must be made within 28 days after the date of issue of a termination notice under s.46PH(2) of the Act, or within such further time that the court concerned allowed.
2. It is not in dispute that the notice of termination from the Australian Human Rights Commission (previously known as the Human Rights and Equal Opportunity Commission) was dated 26 May 2009, and that the present proceedings were commenced on 1 July 2009 which was
   36 days after the date of issue of the notice of termination, that is eight days outside the 28 day period specified as the time to make an application to this court within s.46PO(2) of the AHRC Act. Hence it is necessary to consider whether the court should allow further time under s.46PO(2) such that the application was validly filed.
3. In addition to the application, the applicant has filed and relies on an affidavit sworn on 27 January 2010, which in part consists of submissions in relation to his application for an extension of time.
4. Section 46PO(2) of the AHRC Act gives the court a broad discretion as to whether to grant an extension of time. Neither party directed me to any authorities in relation to the exercise of the court’s discretion. As Brown FM noted in Lawton v Lawson [2002] FMCA 68 at [30], s.46PO(2) “does not express any qualifications or set any criteria for the exercise of the discretion”. Nonetheless it is relevant to bear in mind that the Act deals with matters pertaining to human rights and discrimination, so that there exist strong public policy reasons in support of the view that the court should, if possible, entertain bona fide claims made pursuant to the Act and other related Acts, such as the Disability Discrimination Act 1992 (Cth).
5. Similarly, in Phillips v Aust. Girls’ Choir & Anor [2001] FMCA 109, McInnis FM stressed the difference between the principles to be applied in a case such as this and those that would apply in other contexts where an extension of time was sought (such as under the Administrative Decisions (Judicial Review) Act 1977 (Cth)). In this regard the remedial and/or beneficial nature of the human rights legislation should be borne in mind.
6. Relevantly, in Phillips McInnis FM also formulated a list of principles in relation to the exercise of the court’s discretion, based on the principles set out by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344; 58 ALR 305. I consider these matters relevant to the present application.
7. Thus, while there is no onus of proof upon an applicant for an extension of time and special circumstances need not be shown, the court will not grant an extension of time unless positively satisfied that it is proper to do so. The prescribed period, which at the relevant time was 28 days, is not to be ignored (Ralkon Agricultural Co Pty Ltd v Aboriginal Development Commission [1982] FCA 153; (1982) 43 ALR 535 at 550; [1982] FCA 153; 69 FLR 328)
8. It has been said that there is a prima facie rule that proceedings commenced outside a prescribed period “should not be entertained” (Lucic v Nolan (1982) 45 ALR 411 at 416). However it is not a pre-condition for success that an acceptable explanation for delay be given, although it is to be expected that such an explanation will normally be given as a relevant matter to be considered. Other actions taken by the applicant in addition to making the application to the court are also relevant in assessing the adequacy of any explanation for a delay.
9. It is relevant to have regard to any prejudice to the respondent occasioned by the delay, including any prejudice in defending the proceedings. In this case the delay between the time of issue of the notice of termination from the Australian Human Rights Commission and the commencement of the proceedings was only 8 days. While any prejudice in defending the proceedings occasioned by such delay would be a material factor militating against the grant of an extension, the mere absence of prejudice is not enough to justify the grant of an extension of time.
10. It is also appropriate to take into account the merits of the substantive application in considering whether an extension of time should be granted. Considerations of fairness as between the applicant and other persons in like position are also relevant to the exercise of the court’s discretion (see Phillips at [10]).
11. Considering first whether there is any explanation for the delay, in this case there are two aspects to the explanation that the applicant now seeks to provide. For the first time, in his affidavit of 27 January 2010 he sought to put before the court limited medical evidence. Such evidence is not relevant to the condition or conditions which he alleged constituted the disability in relation to which there was discrimination as outlined in his original application and in the proceedings before the Australian Human Rights Commission, but rather addresses a claim that he suffered from insomnia, including in the period after the issue of the notice of termination, that he thought was caused by a medical procedure as well as some issues with a neighbour. He claimed that he was being treated for insomnia, and provided a medical certificate and an invoice in relation to a medical procedure that he said that he underwent, as well as extracts from an unsigned copy of a medical report which does not bear a doctor’s signature, but which appears to be on a Centrelink form which, he says in his affidavit, was submitted to Centrelink.
12. The solicitor for the respondent took issue with this medical evidence, suggesting that there had not been sufficient time to verify the validity of the documents. It was pointed out that the medical certificate from the doctor was retrospective and related to fitness for court and not to the applicant’s ability to attend a registry and that the applicant had, on his own evidence, in fact attended the registry. The respondent also pointed to the fact that the document annexed to the affidavit as a medical report to Centrelink was a copy of a document, although I note that it appears to bear a Centrelink stamp and is addressed to the applicant.
13. The medical certificate of itself is not such as to satisfy me that the applicant would have been unable to attend to the filing of his application. However he also put unchallenged affidavit evidence before the court as to the fact that on 26 June 2009 he attended the registry of the Federal Magistrates Court and understood from the conversation that he had with a registry staff member that although he was already three days out of time, as he had indicated on the application form that he sought an extension of time, he had received an extension of time. He did not understand that he had to provide reasons for an application for extension of time or that an extension of time was not automatic.
14. The applicant was not cross-examined on this evidence. While it does not explain the initial three day delay, I accept that it does provide an explanation for the period from 26 June 2009 onwards. That leaves a delay of some three days that the applicant attributes to his medical circumstances, including his insomnia. On balance he has provided some explanation for that period of time, and certainly an explanation for the period following his attendance at the registry of this court on 26 June 2009.
15. The nature and extent of the explanation is relevant to take into account in determining whether the balance of convenience between the parties favours the granting of an extension of time.
16. It is also necessary to consider any prejudice to the respondent arising from the delay, bearing in mind that in this case the delay in issue is the delay in filing the application. In that respect it is relevant to have regard to Ingram-Nader v Brinks Australia Pty Ltd (2006) 151 FCR 524; [2006] FCA 624, in which Cowdroy J pointed out that he had “not been referred to any authority in which a court ha[d] taken into account prejudice caused by delay prior to the commencement of the prescribed period” (at [17]), and that the only relevant period for consideration of prejudice was the time following the expiration of the prescribed period and prior to the filing of the application.
17. The delay in filing the application is not such that the respondent would have been entitled to regard the claim as being finalised, or such as to indicate that the applicant was resting on his rights, given that it was a short delay of eight days. Some time has passed since these proceedings were initiated, occasioned by the fact that Mr Zoltaszek was seeking legal advice. Insofar as this is of relevance, I am not persuaded that any substantial prejudice in defending the proceeding has been occasioned. Insofar as costs have been incurred, such matters could, if appropriate, be dealt with by a costs order.
18. In relation to the issue of an arguable case, the respondent had previously raised an issue as to whether the applicant was seeking to rely on s.15 or s.17 of the Disability Discrimination Act and whether the claim was brought in the context of an employment relationship or as a claim of discrimination against a contract worker. The solicitors for the respondent sought clarification from the applicant.
19. Mr Zoltaszek has now clarified in submissions that he intends to rely in the alternative on a claim under s.15 or under s.17 of the Disability Discrimination Act.
20. The respondent contended generally, and without elaboration, that the case was fundamentally flawed because there was no requisite link between the disability and the claimed unfair treatment.
21. However, I bear in mind that I am determining this application at a time when the only documents filed by the applicant are the original application and the affidavit in support of the application for an extension of time, which has addressed the issue raised by the respondent in relation to whether s.15 or s.17 of the Disability Discrimination Act was relied upon. At this stage having regard to all the circumstances I am not satisfied that the applicant does not have an arguable case. Further clarification of the precise nature of the applicant’s claim, either by way of affidavit or by way of points of claim, is necessary, but I am not satisfied that in the particular circumstances of this case it would be futile to extend the time to enable him to pursue a hopeless case in the manner considered by Weinberg J in Bahonko v Royal Melbourne Institute of Technology [2006] FCA 1325.
22. In circumstances where the applicant has provided some explanation for the delay, while there are some issues about the nature of the medical evidence, on balance I am satisfied that there is a sufficient and reasonable explanation for the delay. The delay is not of great magnitude and on the evidence before me I am not satisfied that it would be futile to extend the time for filing the application in this court. I bear in mind the fact that because of the nature of these proceedings, under r.41.02A the Federal Magistrates Court Rules, r.4.05 did not apply to the application. Hence there was no obligation on the applicant at the commencement of these proceedings to file either an affidavit or a statement of claim or points of claim. The absence of such documents creates some difficulty in assessing the arguability of the applicant’s claims but, as indicated, he has now addressed the particular issue previously raised by the respondent as to whether the claim was brought under s.15 or s.17 of the Disability Discrimination Act. While the respondent clearly disputes any claim of discrimination, the evidence at this stage is not such as to establish that the applicant cannot contest a claim under either ss.15 or 17 of the Disability Discrimination Act. In all the circumstances I am satisfied that it is appropriate to grant the extension of time sought by the applicant.
23. For the sake of completeness I note that the time limit is now 60 days. It was 28 days at the time that the applicant filed his application and clearly that was the time that to be taken into account in these proceedings. However, contrary to the respondent’s submissions, I do not accept that in proceedings such as these where the prescribed time period in the legislation had expired, that period of time should necessarily “stand”, given that the court has a discretion to extend the time.
24. Accordingly the application for an extension of time under s.46PO(2) of the AHRC Act should be granted.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 22 February 2010