FEDERAL COURT OF AUSTRALIA Fu v Westpac Banking Corporation [2002] FCA 1154 FREDERICK WAN CHEONG FU v WESTPAC BANKING CORPORATION N.1387 of 2001 MANSFIELD J 28 AUGUST 2002 ADELAIDE (HEARD IN SYDNEY) IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N.1387 OF 2001 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT BETWEEN: FREDERICK WAN CHEONG FU APPELLANT AND: WESTPAC BANKING CORPORATION RESPONDENT JUDGE: MANSFIELD J DATE OF ORDER: 28 AUGUST 2002 WHERE MADE: ADELAIDE (HEARD IN SYDNEY) THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The appellant pay to the respondent 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 NEW SOUTH WALES DISTRICT REGISTRY N.1387 OF 2001 ON APPEAL FROM THE FEDERAL MAGISTRATE'S COURT BETWEEN: FREDERICK WAN CHEONG FU APPELLANT AND: WESTPAC BANKING CORPORATION RESPONDENT JUDGE: MANSFIELD J DATE: 28 AUGUST 2002 PLACE: ADELAIDE (HEARD IN SYDNEY) REASONS FOR JUDGMENT 1 This is an appeal from a decision of a Federal Magistrate given on 5 September 2001. The Magistrate on that day dismissed the application of the appellant complaining of contraventions of the Racial Discrimination Act 1975 (Cth) by the respondent. The application was dismissed because the appellant did not attend the hearing at the time which the Magistrate understood had been fixed for the hearing. Initially his Honour adjourned for a period of one hour to enable efforts to be made to contact the appellant. Those efforts were unsuccessful. The Magistrate then therefore said: "So at that time on 12 July Mr Fu was aware both that the mediation had been unsuccessful and that the matter would be proceeding to a hearing. He appeared in person on that day. He heard what directions I made, so I can't see any reasonable excuse for Mr Fu not being aware of the hearing today and not making any effort to either seek an adjournment or turn up to prosecute the matter." 2 In those circumstances his Honour exercised the discretion under r 13.03 of the Federal Magistrates Court Rules to dismiss the application. 3 The appeal raises one point only. It is that the Magistrate was wrong in regarding 5 September 2001 as the date fixed for the hearing. The appellant contends that the date fixed for the hearing was 5 October 2001. 4 The appellant relies upon three pieces of information upon which he asks the Court to make the finding that the application was listed for hearing on 5 October 2001. The first is an affidavit filed in the appeal, sworn on 26 February 2002, which asserts that: " ….and during the hearing on 12/7/2001, Driver J ordered the matter to be listed for a two-day hearing. The starting date was decided to be on 5 October 2001." Secondly, he refers to what he says is a very strange circumstance, namely that on 31 August 2001 the respondent served "the last document for amendment" upon the appellant. His contention is that such a document would not have been provided to him only a few days before the hearing. The third piece of information which he adduces in support of his claim is an annexure to his affidavit sworn on 27 February 2002 in the appeal of his note taken at the hearing on 12 July 2001. That note relevantly includes the following: the first line "Will they available"; the next line "AUG" crossed out, "SEP" crossed out, "OCT"; the next line "Two days, 5/8 Oct trial"; the next line "Six witness? subpoena"; the next line "Amended Appl, A-P-P-L, due 31/7/01"; the next line "Affidavit"; the next line "Defendant, Fri 31/1/01"; the next line "On three days notice for direction". He contends that is his contemporaneous note of the directions hearing which took place before the Magistrate on 12 July 2001. 5 The appeal book contains the transcript of the directions hearing on 12 July 2001. The appellant attended. It records that the Magistrate confirmed with the appellant that it was appropriate to endeavour to fix a hearing date. There is then a lengthy exchange discussing a possible hearing date. After referring to there being no available days in July or August, the discussion continued: "There is in September a possibility, only one possibility, and that would be on 5 and 6 September. Otherwise we are looking at October and that would be the week of 22 October. So it is a question of whether you have a preference for a sooner hearing or a later hearing. MR FITZHARRIS: At this stage, sir, the October hearing would be the most suitable for the respondent, purely to allow it to prepare its evidence. HIS HONOUR: All right. Is that acceptable to you, Mr Fu? MR FU: I beg your pardon, your Honour, what was the earlier date? HIS HONOUR: The earliest possible hearing date would be 5 and 6 September and after that I am looking at the week of 22 October. MR FU: I would prefer the earlier hearing because, as you are aware, the matter has dragged on for two years already. It has been through the Human Rights Courts so it has been a fair while since the actual matter. HIS HONOUR: I understand. From your perspective you are effectively ready now but the respondent clearly isn't and I will need to give the respondent some time to prepare. Let's just think about this for a moment. If I gave Mr Fu until the end of the month to make any changes that he may want to make to his application and to file any further evidence that he may want to file. And I gave the respondent until the end of August I think we could make 5 and 6 September, Mr Fitzharris? MR FITZHARRIS: That is suitable, sir. HIS HONOUR: Well, let's try for the earlier date. I will direct that this matter be listed for hearing over two days on 5 and 6 September and I order that the applicant file and serve any amended application and any further affidavit evidence on which he wishes to rely by Tuesday, 31 July 2001. It is up to you, Mr Fu, whether you want to take advantage of that opportunity to produce any additional evidence or to make any changes to your application, you don't have to if you don't want to. MR FU: Thank you, your Honour." The Magistrate also directed the respondent to file and serve by 31 August 2001 any affidavits upon which it proposed to rely at the hearing. After some further discussion, the Magistrate said, and I quote: "I wouldn't anticipate having a further directions hearing before the trial of the matter on 5 and 6 September, but I will give either party liberty to apply for further directions on three days notice if required." 6 Counsel for the respondent appeared at the hearing on 5 September 2001. 7 In my judgment, the ground of appeal which has been argued must fail. I do not have any cogent evidence that the transcript of the directions hearing on 12 July 2001 is wrong. It clearly identified 5 and 6 September 2001 as the date for the hearing in the passage from the transcript which I have set out at length above. That date was reasserted by the Magistrate in his concluding remarks, when he gave liberty to apply for further directions on three days notice. 8 Despite the appellant's evidence, to which I have referred, I find he was mistaken as to the hearing date. The second of the matters upon which he relies is not of any persuasion to my mind in any event. In oral contentions the appellant persisted in claiming that it was peculiar that the respondent would have served him with "amendment" documents on 31 August 2001. I drew to his attention that his note made apparently on 12 July 2001 required the respondent to file its affidavits by 31 August 2001. The appellant did not accept that the reference in his affidavit to an amendment being delivered by that time might have been in error, and might instead refer to the respondent's affidavit evidence. He contended that the note related to the amendment which was to be provided by 31 July 2001. The transcript indicates clearly that that was the date by which any amendment to his application was to be filed by him. His note refers to an amendment application to be filed by 31 July 2001, not to any amendment to come from the respondent. His suggestion that his handwritten note did not align dates with items, or with steps to be taken in preparation for the trial, does not really make sense. The entry in his note about the trial date, upon which he has relied, in my judgment must be erroneous, although I accept that it is not a deliberate mistake on his part. 9 Accordingly, the ground of appeal which he has argued must fail. 10 I invited the appellant to present an alternative argument that he had failed to attend the hearing of the application before the Magistrate by mistake on his part and that the Court should consider allowing the appeal on the basis that he simply was mistaken about the hearing date and so has not had the merits of his application determined. Although he was invited to present that argument on several occasions, he declined to do so. In those circumstances, strictly speaking, it is unnecessary for me to consider that alternative possibility. 11 However, as I have found that he was mistaken about the hearing date, I propose to advert to the consequences of such a mistake as if that were a ground of appeal which he now sought to pursue. The background to his application is his employment with the respondent between 19 October 1998 and 11 February 1999, when he resigned. On 31 March 1999 he lodged a complaint against the respondent with he Human Rights and Equal Opportunity Commission complaining of racial vilification, racial harassment and discrimination contrary to the Racial Discrimination Act in relation to his treatment whilst he worked for the respondent. 12 On 21 November 2000, after investigating his complaints, the Commission issued a notice of termination of the complaints under s 46PH of the Human Rights and Equal Opportunity Commission Act 1986 (Cth). In respect of the complaint of racial vilification, the termination was on the ground that there was no reasonable prospect of the complaint being settled by conciliation. In respect of the complaints of racial harassment and discrimination, the termination was on the ground that the complaints were lacking in substance. The Commission gave detailed reasons for its conclusions. 13 The application to the Federal Magistrates Court on 12 December 2000 was then made under s 46PO of the Human Rights and Equal Opportunity Commission Act. The Court explored resolution of the complaint by mediation, but that proved to be unsuccessful. On 12 July 2001, as I have noted, the directions hearing took place at which I have found the hearing date was fixed for the application on 5 September 2001. 14 Even if the appellant failed to appear at the hearing on 5 September 2001 by reason of mistake on his part rather than, as he contends, by reason of the hearing date having been fixed for 5 October 2001, I do not think, on this appeal, that he could succeed in having the appeal allowed and the matter remitted to the Magistrate for hearing on the merits. The Magistrate's exercise of his discretion under r 13.03 of the Federal Magistrates Court Rules has not been shown to have been in error. The Magistrate was careful to consider possible explanations for the appellant's failure to attend the hearing. He noted specifically, as I have recorded above, the outcome of the mediation, the attendance of the appellant at the time the hearing was fixed, and the absence of any information, despite inquiries, to explain his non-attendance. His Honour was aware, as the appellant has pointed out, that documents were served upon the appellant on 31 August 2001 by the respondent. 15 In those circumstances none of the grounds upon which a discretion to deal with the matter in the way in which the Magistrate did so has been shown to be available to the appellant: see House v The King (1936) 55 CLR 499 at 504-505. Even so, the Court would be sympathetic to the appellant's circumstances. It is, unfortunately, sometimes the case that parties fail to attend a hearing, either in person or through their representative, through mistake. It is not uncommon, in those circumstances, for the Court to endeavour to accommodate the mistake by setting aside the judgment entered in default of appearance. Before doing so, however, it is appropriate for the Court to consider whether there is any real prospect of the appellant succeeding if the application were remitted to the Magistrate for re-hearing. 16 The appellant has not advanced any arguments on that topic. I have considered the terms of his application to the Federal Magistrates Court, and his communications with the Human Rights and Equal Opportunity Commission. I have also considered the nature of the information secured by the Commission in the course of its investigations into his complaints. Finally, I have carefully considered the Commission's reasons for its decision to terminate the complaints, provided to the appellant with the notice of termination dated 21 November 2000. I do not have any other material before me to indicate that the Commission's views, or the Commission's reasons for its decision to terminate the complaints, were erroneous or that there is additional material which the appellant might have sought to adduce before the Magistrate on the hearing of the application beyond that which was available to the Commission. 17 On the basis of the material which is before the Court, I am of the view that the appellant would have no real prospect of succeeding in his application before the Magistrate, even if the matter were remitted to the Magistrate for hearing. 18 For those reasons, in my judgment, the appeal must be dismissed. I so order. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice MANSFIELD. Associate: Dated: 18 September 2002 Counsel for the Appellant: The appellant appeared in person. Counsel for the Respondent: Mr P Arthur Solicitor for the Respondent: Allens Arthur Robinson Date of Hearing: 28 August 2002 Date of Judgment: 18 September 2002