FEDERAL COURT OF AUSTRALIA Pham v Human Rights & Equal Opportunity Commission [2002] FCAFC 353 CHARLES PHAM v HUMAN RIGHTS & EQUAL OPPORTUNITY COMMISSION, COMMONWEALTH OF AUSTRALIA (DEFENCE) & UNIVERSITY OF QUEENSLAND V 307 of 2002 JUDGES: WHITLAM, NORTH and WEINBERG JJ DATE: 6 NOVEMBER 2002 PLACE: MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 307 of 2002 BETWEEN: CHARLES PHAM APPELLANT AND: HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION FIRST RESPONDENT COMMONWEALTH OF AUSTRALIA (DEFENCE) SECOND RESPONDENT UNIVERSITY OF QUEENSLAND THIRD RESPONDENT JUDGES: WHITLAM, NORTH and WEINBERG JJ DATE OF ORDER: 6 NOVEMBER 2002 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. Leave to appeal from the order made by Gray J on 9 May 2002 dismissing the claims against the second and third respondents is refused. 2. The appeal in respect of those claims is dismissed as incompetent. 3. The appeal from the said order dismissing the claim against the first respondent is dismissed. 4. There is no order for costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 307 of 2002 BETWEEN: CHARLES PHAM APPELLANT AND: HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION FIRST RESPONDENT COMMONWEALTH OF AUSTRALIA (DEFENCE) SECOND RESPONDENT UNIVERSITY OF QUEENSLAND THIRD RESPONDENT JUDGES: WHITLAM, NORTH and WEINBERG JJ DATE: 6 NOVEMBER 2002 PLACE: MELBOURNE REASONS FOR JUDGMENT WHITLAM J 1 On 4 March 2002 Charles Pham commenced a proceeding under Pt IIB Div 2 of the Human Rights and Equal Opportunity Commission Act 1986 ("the Act"), alleging unlawful discrimination by three named respondents, the Human Rights and Equal Opportunity Commission ("the Commission"), the Commonwealth of Australia (Defence) ("the Commonwealth") and the University of Queensland ("the University"). The proceeding related to a complaint lodged by Mr Pham against the Commission, which the President of the Commission had terminated on 7 February 2001. The Commonwealth and the University were not respondents to the terminated complaint, and each of them applied to have the claim against it summarily dismissed. The application against the Commission was also out of time. By virtue of s 46PO(2) of the Act, such an application had to be made within 28 days after 7 February 2001 or "within such further time" as the Court allows. 2 The motions for summary dismissal were heard by Gray J on 9 May 2002, at which time his Honour also considered whether to allow Mr Pham the further time necessary to pursue an application against the Commission. At the conclusion of the hearing that day, his Honour made an order dismissing the proceeding generally. 3 On 20 May 2002 the Registry accepted for filing a document lodged by Mr Pham, purporting to appeal from Gray J's order. The question has arisen here today as to whether that appeal is competent. 4 An order for summary dismissal is an interlocutory order. By way of authority it is convenient to refer to the recent Full Court judgment in Marketing Advisory Services (MAS) v Football Tasmania Ltd (2002) 42 ACSR 128 at [29], per Sackville, Kenny and Allsop JJ, where their Honours approved the reasoning of Burchett J in Weatherall v Satellite Receiving Systems (Australia) Pty Ltd (1999) 92 FCR 101. That decision had earlier been applied by another Full Court in Dai v Telstra Corporation Ltd (2000) 171 ALR 348 at [21]. It follows that leave is required to appeal from the order made in favour of the Commonwealth and the University, otherwise the purported appeal as against those respondents is incompetent. 5 The position in relation to the purported appeal as it affects the Commission is not so clear. As a matter of quick impression it seems from what was said by the Full Court in Cubillo v Commonwealth of Australia (2001) 112 FCR 455 at [181]-[185] that an order refusing to allow further time to commence a proceeding may be a final order, not an interlocutory order, since its effect is to bring a proceeding to conclusion. That is what occurred here, where the order dismissed the proceeding generally. So far as the Commission is concerned, it is content for present purposes to proceed on the basis that an appeal lies as of right. 6 The requirements for leave to appeal are well known. They are succinctly stated in Jarrett v Seymour (1993) 46 FCR 557 at 559-560, where Lockhart and Beaumont JJ referred to what was said by an earlier Full Court in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. Their Honours said that the relevant considerations for the Court in considering whether leave to appeal should be granted are: "(a) whether in all the circumstances the judgment of the primary judge is attended by sufficient doubt to warrant it being reconsidered by the Full Court; and (b) whether substantial injustice would result if leave were refused supposing the decision would be wrong." 7 As to the first of those hurdles, Mr Pham has failed to show the slightest misapprehension of the facts on the part of Gray J in his dealing with the applications before him, and he has not even vaguely suggested an error of principle in his Honour's approach to them. In my view, everything Gray J said about the construction of the Act is plainly correct. 8 However, so far as the purported appeal against the Commission is concerned, I approach that on the basis that leave to appeal is not required and that an appeal lies as of right. The ground of "bias" stated in Mr Pham's notice of appeal rests on a misconception. It appears from what Mr Pham said in his oral argument today that he did not really understand what bias meant in law. He certainly did not refer to it in terms of apprehended bias or actual bias. He developed an argument which referred to what would be normally regarded as errors of law in the construction of the Act, together with a slight suggestion that there was an error in fact finding in relation to his medical condition. I need only say that no such error of law or error in fact finding was made out, and I agree entirely with what Gray J said. 9 I would refuse leave to appeal and dismiss the appeal as incompetent as against the second and third respondents. In respect of the first respondent, I would dismiss the appeal. As to the question of costs, it being accepted by the second and third respondents that the appeal was incompetent as against them, O 52 r 18(3) operates to require a special order to be made before they would be entitled to costs of such an incompetent appeal. No such order is sought. Counsel appearing for the Commission does not seek costs of the appeal against it. Accordingly, in my opinion, there should be no order as to the costs of the appeal. Those are the orders I propose. NORTH J 10 I agree with the conclusions of the presiding judge and with the reasons that he has given for those conclusions. WEINBERG J 11 I agree, for the reasons given by the learned presiding judge, with the orders proposed. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate: Dated: 18 November 2002 The appellant appeared in person. Counsel for the first respondent: Jonathon Hunyor Solicitor for the first respondent: Susan Roberts Counsel for the second respondent: P J Ginnane Solicitor for the second respondent: Australian Government Solicitor Counsel for the third respondent: E G de Zilwa Solicitors for the third respondent: Sparke Helmore Date of hearing: 6 November 2002 Date of judgment: 6 November 2002