FEDERAL COURT OF AUSTRALIA Rivera v Human Rights and Equal Opportunity Commission [2005] FCA 1741 RIVERA v HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION NSD 1326 OF 2005 GRAHAM J 21 NOVEMBER 2005 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1326 OF 2005 BETWEEN: LAWRENCE RIVERA APPLICANT AND: HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION FIRST RESPONDENT MORGAN ARDINO & CO SECOND RESPONDENT RICHARD CUMMINS THIRD RESPONDENT THE STATE OF NEW SOUTH WALES FOURTH RESPONDENT THE COMMONWEALTH OF AUSTRALIA FIFTH RESPONDENT JUDGE: GRAHAM J DATE OF ORDER: 21 NOVEMBER 2005 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The time within which the Applicant may bring his amended application be extended up to and including 31 October 2005. 2. The amended application be dismissed as against the Second and Third Respondents. 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 NSD 1326 OF 2005 BETWEEN: LAWRENCE RIVERA APPLICANT AND: HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION FIRST RESPONDENT MORGAN ARDINO & CO SECOND RESPONDENT RICHARD CUMMINS THIRD RESPONDENT THE STATE OF NEW SOUTH WALES FOURTH RESPONDENT THE COMMONWEALTH OF AUSTRALIA FIFTH RESPONDENT JUDGE: GRAHAM J DATE: 21 NOVEMBER 2005 PLACE: SYDNEY REASONS FOR JUDGMENT 1 Lawrence Rivera is the Applicant in an amended application for an order of review filed 31 October 2005. The original application, filed 3 August 2005, named Mr Rivera as Applicant, the Human Rights and Equal Opportunity Commission ("HREOC") as the First Respondent, Morgan Ardino & Co as the Second Respondent, and Richard Cummins as the Third Respondent. 2 It would appear that in 2003 the Applicant made a complaint in writing to HREOC, a body corporate established under s7 of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ("the Act") of the Commonwealth. Under s20(1)(b) of the Act HREOC is to perform functions referred to in s 11(1)(f) including: "To inquire into any act or practice that may be inconsistent with or contrary to any human right" 3 Human rights are defined in s3 of the Act to mean: "the rights and freedoms recognised in the Covenant, declared by the Declarations or recognised or declared by any relevant international instrument." 4 The Covenant referred to is the International Covenant on Civil and Political Rights, a copy of the English text of which is set out in schedule 2 as that international covenant applies in relation to Australia. Section 29 makes provision for how HREOC is to respond after an inquiry under s11(1)(f): "29(2) Where, after an inquiry into an act done or practice engaged in by a person, the Commission finds that the act or practice is inconsistent with or contrary to any human right, the Commission: (a) shall serve notice in writing on the person setting out its finding and the reasons for those findings; (b) may include in the notice any recommendations by the Commission for preventing a repetition of the act or a continuation of the practice; (c) may include in the notice any recommendation by the Commission for either or both of the following: (i) the payment of compensation to, or in respect of, a person who has suffered loss or damage as a result of the act or practice; (ii) the taking of other action to remedy or reduce loss or damage suffered by a person as a result of the act or practice; (d) shall include in any report to the Minister relating to the result of the inquiry particulars of any recommendations that it has made pursuant to paragraph (b) or (c); (e) shall state in that report whether, to the knowledge of the Commission, the person has taken or is taking any action as a result of the findings, and recommendations (if any), of the Commission and, if the person has taken or is taking any such action, the nature of that action; and (f) shall serve a copy of that report on the person and, if a complaint was made to the Commission in relation to the act or practice: (i) where the complaint was made by a person affected by the act or practice – shall serve a copy of that report on the complainant; or (ii) if the complaint was made by another person – may serve a copy of that report on the complainant. (3) Where: (a) a complaint is made to the Commission in relation to an act or practice; and (b) after an inquiry into the act or practice, the Commission finds that: (i) the existence of the act or practice has not been established; or (ii) the act or practice is not inconsistent with or contrary to any human right; the Commission shall give a copy of a report setting out its findings, and the reasons for those findings, to the complainant and: (c) in a case to which subparagraph (b)(i) applies – to the person alleged to have done the act or engaged in the practice; or (d) in a case to which subparagraph (b)(ii) applies – to the person who did the act or engaged in the practice. (4) In setting out findings and reasons in a notice to be served or a report to be given under this section the Commission may exclude any matter if the Commission considers it desirable to do so having regard to any of the matters mentioned in subsection 14(5) and to the obligations of the Commission under subsection 14(6). (5) Where, under subsection (4), the Commission excludes any matter from a report, the Commission shall prepare a report setting out the excluded matter and its reasons for excluding the matter and shall furnish the report to the Minister." 5 Whether there is a finding favourable to a complainant or unfavourable to a complainant the net result is that HREOC is to provide a report. 6 In relation to Mr Rivera's complaint to HREOC he was represented by Mr Cummins of Morgan Ardino & Co pro bono. My understanding is that Mr Cummins, the Third Respondent in the original application, was either a member of or an employee of the firm of solicitors known as Morgan Ardino & Co who were the Second Respondent in the original application. 7 On 28 September 2005 I ordered that the Commonwealth of Australia and the State of New South Wales be joined as Respondents to these proceedings. They were necessary parties given that the complaint of Mr Rivera was against the Commonwealth of Australia Attorney‑General's Department and the State of New South Wales, Department of Corrective Services. A copy of Mr Rivera's complaint is not presently before the court. However, it would appear from the report of HREOC that he complained of acts inconsistent with or contrary to his human rights. The acts are alleged to have been carried out by prison officers employed by the New South Wales Department of Corrective Services and fellow prisoners while he was detained in New South Wales correctional centres under the Extradition Act 1988 (Cth) ("the Extradition Act"). 8 Under the Extradition Act and the Extradition United States of America Regulations 1988 ("the Regulations"), the United States of America has been declared to be an extradition country for the purposes of the Extradition Act. By virtue of ss11(1A) and 11(1C) of that Act, when taken with regulation 4 of the Regulations, the Extradition Act applies in relation to the United States of America. This is subject to the Treaty on Extradition between Australia and the United States of America that came into force on 8 May 1976, as amended by the protocol signed at Seoul on 4 September 1990, being the Treaty and Protocol attached to the Regulations as schedules 1 and 2. 9 The Extradition Act provides for the arrest of persons, the extradition of whom has been requested. That Act and the Regulations make provision for the making of requests for extradition, for Magistrates to conduct proceedings to determine whether the person whose extradition has been sought is eligible for surrender in relation to the extradition offence or offences for which the surrender of the person has been sought by the extradition country and for the review of Magistrate's orders that persons be committed to prison to await surrender. 10 For present purposes it is unnecessary to go into the detail of the extradition process. Suffice it to say that the Applicant, Mr Rivera, has been the subject of a request for extradition to the United States of America where he has been indicted for murder. He has been arrested and remanded in custody and his complaint is in respect of treatment meted out to him in the circumstances indicated above whilst in custody awaiting surrender or release. 11 Mr Rivera's amended application seeks relief under the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"). His original application was expressed in the standard Form 5 used for the institution of proceedings in the Federal Court rather than in Form 56 which is prescribed as the appropriate form for use in relation to proceedings under that Act. 12 The amended application filed 31 October 2005 has been cast in accordance with Form 56. Amongst other things the amended application seeks an order setting aside the decision of HREOC made on 5 May 2005 which was to the following effect: "In this case in relation to all but one allegation I have concluded that there is insufficient evidence to support Mr Rivera's claims and so in the absence of such evidence I have finalized my inquiry into this matter pursuant to section 29(3)(b)(i) of the HREOC Act for the reasons outlined above. In relation to the remaining allegations concerning the conduct of inmates for the reasons outlined above I have finalised my inquiry under section 29(3)(b)(ii) of the HREOC Act." 13 The net result of these findings was that HREOC did not consider it appropriate to make adverse findings against the persons against whom the complaints had been made. 14 Mr Rivera has filed an affidavit in which he explains the circumstances in which he came to be notified of the decision of HREOC. Under s11(1)(c) of the ADJR Act an application for an order of review shall be lodged with the Registry of the Court within the prescribed period or within such further time as the Court allows. Section 11(3)(b)(iii) relevantly defines the prescribed period as: "(3) … the period commencing on the day on which the decision is made and ending on the twenty-eighth day after: (iii) the day on which a document setting out the terms of the decision is furnished to the applicant." 15 For present purposes, what is of concern is to ascertain what is meant by "furnished to the applicant". It would appear that on 5 May 2005 HREOC provided a copy of its decision to the Applicant under cover of a letter addressed to Mr Cummins at Morgan Ardino & Co. Mr Rivera says, and it does not appear to be disputed, that advice as to the terms of that decision was not reported promptly to Mr Rivera. The consequence of that is, if provision of a copy of the decision to Morgan Ardino & Co constituted furnishing to the Applicant of the document setting out the terms of the decision then Mr Rivera's application was out of time. 16 Mr Rivera's affidavit annexes a copy of a letter of 25 July 2005 from HREOC to himself at the Silverwater Remand Centre which commences with a sentence reading: "I refer to your letter of 25 July 2005 inquiring into the current status of your complaint to the Commission alleging a breach of human rights ... I wish to advise that your complaint was investigated by the Commission and all correspondence relating to your complaint was sent to your legal representative, Mr Richard Cummins, of Morgan Ardino & Co." 17 If the relevant prescribed period under s11 of the ADJR Act allowed 28 days after that letter was received by Mr Rivera as the relevant period within which an application for review was to be brought, then his application as filed on 3 August 2005 was within time. 18 What is presently before the court is part only of Mr Rivera's amended application, the relevant part being prayer for relief 1, namely aclaim for an order that leave be granted for an extension of time for the filing of this application. 19 What is meant by furnishing to the Applicant has been the subject of consideration by the court in Accident Insurance Mutual Limited v Trade Practices Commission 1983 51 ALR 792 at 796-7; in Australian Foreman Stevedores Association v Crone (1989) 20 FCR 377 at 385 and in Fisher v Commonwealth (1997) 48 ALD 15 at 18. 20 In the present circumstances it is unnecessary to decide whether or not the communication to Mr Cummins at Morgan Ardino & Co on 5 May 2005 constituted the provision to Mr Rivera of a document setting out the terms of HREOC's decision which satisfied the description of it having been furnished to the Applicant. Presently before the court there are counsel or solicitors representing each of the named parties who indicate that they neither support nor oppose an extension of time being granted. 21 The only circumstance in which it would seem to me in the present circumstances that an extension of time should not be granted to Mr Rivera, if required, would be if it was demonstrated and accepted that the case which he wished to advance was so obviously untenable that it could not possibly succeed, or, putting it another way, that his application was doomed to fail. No such submission has been put on the part of any of the Respondents. 22 In the circumstances I propose to order that the time within which the Applicant may bring his amended application be extended up to and including 31 October 2005. 23 I note that, in the circumstances, Mr Rivera makes no further claims against the Second and Third Respondents and consents to the dismissal of the application as against those Respondents. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham. Associate: Dated: 7 December 2005 The Applicant appeared in person Solicitor for the First Respondent: C Lenehan, Human Rights and Equal Opportunity Commission Counsel for the Second and Third Respondents: P de Dassel Solicitor for the Second and Third Respondents: Morgan Ardino & Co Solicitor for the Fourth Respondent: S Free, Crown Solicitor's Office Solicitor for the Fifth Respondent: R Wood, Australian Government Solicitor Date of Hearing: 21 November 2005 Date of Judgment: 21 November 2005