Vanniasinghe, Anton Hillary v The President, Human Rights & Equal Opportunity Commission & Anor [1998] FCA 772

FEDERAL COURT OF AUSTRALIA

ADMINISTRATIVE LAW - judicial review - application made out of time - whether extension should be granted Administrative Decisions (Judicial Review) Act 1977 (Cth) s 11(3) Racial Discrimination Act 1975 (Cth) s 24(2)(d), 24AA(2)(b)(i) Anton Hillary Vanniasinghe v The President, Human Rights and Equal Opportunity Commission and Australian Poultry Ltd (Steggles Limited) No QG 25 of 1998 Kiefel J Brisbane 26 June 1998

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QG 25 of 1998

on appeal from a decision OF THE PRESIDENT OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY Commission

BETWEEN: ANTON HILLARY VANNIASINGHE

Applicant

AND: the president, HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

First Respondent

AUSTRALIAN POULTRY LTD (STEGGLES LIMITED)

Second Respondent

JUDGE: KIEFEL J

DATE OF ORDER: 26 JUNE 1998

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. The application for extension of time for the bringing of an application under the Administrative Decisions (Judicial Review) Act 1977 is refused. 2. The applicant pay the second respondent's costs of and incidental to 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

QUEENSLAND DISTRICT REGISTRY QG 25 of 1998

on appeal from a decision OF THE PRESIDENT OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY Commission

BETWEEN: ANTON HILLARY VANNIASINGHE

Applicant

AND: the president, HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

First Respondent

AUSTRALIAN POULTRY LTD (STEGGLES LIMITED)

Second Respondent

JUDGE: KIEFEL J

DATE: 26 JUNE 1998

PLACE: BRISBANE

REASONS FOR JUDGMENT EX TEMPORE I am in a position to give my reasons and judgment now because I have had an opportunity of reading the material filed by the parties and their written submissions and I have heard further submissions today. Mr Vanniasinghe applied to this Court on 27 March 1998 to review the decision of the President of the Human Rights and Equal Opportunity Commission, dated 11 June 1996 and which was in terms that the President: "...is satisfied that there is no evidence, or no sufficient evidence capable of proving that the conduct of the respondent was based on, or by reason of the complainant's race." The second respondent applies to dismiss the application. There are two principal bases for it. In the first place it submits that the application is well out of time; and secondly that the application, in any event, lacks any substance. The latter contention may, of course, be taken into account in relation to the application for extension of time. Mr Vanniasinghe complained to the Commission in April 1992 that he had been disadvantaged in his work with the second respondent by reason of his race. The delegate of the Commission decided, pursuant to s 24(2)(d) Racial Discrimination Act 1975, not to continue to inquire into Mr Vanniasinghe's allegations because his complaint was lacking in substance. This was notified to Mr Vanniasinghe by letter of 13 November 1995. The complaint noted by the delegate was that Mr Vanniasinghe had been treated less favourably in his employment than other workers as a result of his colour and ethnic origin; that he was demoted and had his conditions altered; and that he was forced to resign his position. He had also mentioned his detection of a fraud within the company had led to his being forced to resign from his employer. The delegate found that there was no evidence, from the facts put forward, to substantiate the general allegations. The President of the Commission in his later reasons said that he had read and considered the report and the file relating to the complaint, and confirmed the decision under s 24AA(2)(b)(i). Mr Vanniasinghe seeks a review of that decision and claims damages in the order of $5.5 million. Generally one can say that Mr Vanniasinghe is dissatisfied with the Commission's refusal to further investigate the matter, and that he does not accept that there was no evidence, or no sufficient evidence capable of proving his complaint, namely that the conduct of the respondent was racially based. It is accepted that were there such evidence there may be disclosed an error of law. The grounds set out for Mr Vanniasinghe's application are in summary: (a) that his conditions and status as an employee were changed from that of monthly paid salary staff to hourly paid wage earner; (b) that he was demoted to a clerical position from that of a stock supervisor, and (c) that he was forced to resign, and he says that these matters were not properly investigated by the Commission. As to the extension of time, s 11(3) Administrative Decisions (Judicial Review) Act 1977 requires an application to be filed within 28 days of the notification of the decision. Mr Vanniasinghe says that he was not advised of the decision until September 1996 when his then solicitors told him that they would need more money to look into his rights of redress. It is implied in his affidavit, and Mr Vanniasinghe informed me today, that he was not advised of any right to apply to this Court for review. Eventually Mr Vanniasinghe wrote to the President of the Human Rights and Equal Opportunity Commission himself, and was then advised by letter dated 19 March 1997 that, whilst the President had no further ability to deal with this matter, he could apply to this Court. At the same time he was warned that there was a need to obtain an extension of time. He obtained the application form from the Court in April 1997. He did not file an application until 27 March 1998. There is certainly a substantial period of unexplained delay which might provide grounds for refusing an extension, even if one put to one side the complaints of prejudice made by the second respondent. In connection with applications for review it will not always be the case that actual prejudice can be pointed to, for the reason that witnesses will not usually be required and people's recollections will not be in question. Matters will usually be undertaken on the basis of the material which was filed before the Commission, or other decision-makers, and errors of law, if any, disclosed in the reasons which are provided. That is not to say, however, that extensions of time are not viewed seriously by the Court. In this respect, the second respondent says that it was not aware at all of the likelihood of this application being brought to the Court until it was filed on 27 March 1998. Even allowing for the difficulties which Mr Vanniasinghe, as a litigant in person, would encounter in attempting to ascertain and apply himself to what is required by an application of this kind, the delay is substantial and would, I consider, be of such magnitude as to warrant the refusal of an order for extension. I do think, however, in light of the submissions put forward that I ought to consider the substance of Mr Vanniasinghe's complaint before I foreclose altogether the possibility of his application being heard by the Court. In my view a consideration of the four affidavits, in the nature of booklets, filed by Mr Vanniasinghe, together with his submissions, written and oral, disclose that the application is one without merit. Mr Vanniasinghe's material is somewhat discursive and repetitive. The most coherent statement of his position is to be found in a statement drawn by his solicitors and which, I infer, was filed with the Commission. From that, and doing the best I can from the material which Mr Vanniasinghe has added, it seems to me that these are, in summary, the matters he complains of: (1) that his pay and his status was changed in the manner I have outlined above with no reasons being given for that; (2) that he was asked to punch a time clock and he found this demeaning; (3) that when he inquired about the change he was abused and called a "black" by his supervisor; (4) that a wrongful deduction was made from his salary at one point, although this was reinstated; (5) that in December 1990 he attempted to change the system in the stock room but was told that this would not be accepted because of his racial origin; (6) he was asked to do far too much work. He had worked long hours and was placed under stress; (7) that he detected fraud and this somehow led to the person referred to as his supervisor being demoted; (8) that he was forced to accept an error in his stocktake in May 1991 although he in fact accepts that there was an error involved. But that this led to a mark against him as an employee; and lastly (9) that he was forced to resign in October 1991. These matters are all denied by the second respondent. However, even if one assumes that they are all correct, and did occur in the way in which Mr Vanniasinghe describes, in my view they would provide no basis for concluding that he was in some way disadvantaged in terms of his work. The only references to racist remarks by him are in connection with his work not being accepted as of an appropriate standard. But this is taken no further, and does not seem to be connected with his later demotion or his resignation. The remark, which he says was made when he sought an explanation as to his change in pay and status, also appears to have led nowhere in terms of actual disadvantage which accrued to him. Another remark which he refers to being made in relation to his employer's employment of white persons would appear to indicate a discrimination against them in terms of offers of employment and not Mr Vanniasinghe. The difficulty with his application is that there is no causal connection between these remarks and any actual disadvantage he experienced in his employment. Mr Vanniasinghe's true complaint, and which I attempted to explain to him today, appears to be based upon his belief that the Commission ought to have investigated and found the evidence that was necessary to substantiate his claim. The highest that Mr Vanniasinghe can put the matter, in the absence of the necessary further evidence, is that there can be no other reason, other than racial discrimination, for the changes that occurred in the course of his employment. But that is simply not the only inference that may be drawn. There may well be other reasons and it was incumbent upon Mr Vanniasinghe, as an applicant to the Commission, to show that the claim which was brought had the necessary substance. Whilst Mr Vanniasinghe may himself believe that he has been wronged in some way, the information placed before the Commission and before this Court goes no way towards substantiating the general allegations he made. There is in my view no basis shown for a conclusion that the President of the Commission erred in law in concluding that there was no evidence, or no sufficient evidence. For these reasons I am, I consider, obliged to refuse the application for an extension of time within which Mr Vanniasinghe brings his claim on the two grounds I have outlined above. The second respondent seeks an order for costs against Mr Vanniasinghe. He understands that this is sought. Usually an order for costs is made against an applicant where an application is brought which requires another party to come to the Court and to incur legal costs, and where the applicant is unsuccessful. There seems no reason in this case to depart from that, and I will therefore order that Mr Vanniasinghe pay the second respondent's costs of and incidental to the application brought to the Court. I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel