Tomas v Technicolor Pty Ltd CaseBase | [2012] FMCA 984 | BC201209071 TOMAS v TECHNICOLOR PTY LTD BC201209071 Unreported Judgments Federal Circuit Court of Australia (formerly Federal Magistrates Court of Australia) · 13 Paragraphs Federal Magistrates Court of Australia Connolly FM MLG 1184 of 2011 25–26 October, 23 November 2012 Tomas v Technicolor Pty Ltd and Anor [2012] FMCA 984 Headnotes HUMAN RIGHTS — Alleged sexual harassment, sex discrimination and victimisation — Application to extend time to bring application to court — Whether Applicant has reasonable excuse for delay — Whether Applicant has arguable case — Extension of time application refused — Application dismissed. (CTH) Australian Human Rights Commission Act 1986 s 46PO(2) (CTH) Sex Discrimination Act 1984 s 106(2) (CTH) Disability Discrimination and Other Human Rights Amendment Act 2009 Ferrus v Qantas Airways Ltd (2006) 155 IR 88; Drew v Bates [2005] FMCA 1221 Connolly FM. The Proceedings [1] This judgment arises out of the Applicant’s application for an extension of time in which to file her application pursuant to s 46PO(2) of the Australian Human Rights Commission Act 1986 (Cth). [2] The substantive application complains of sexual harassment, sex discrimination and victimisation, the particulars of which are set out in paras 3–76 of the application filed 24 September 2011 and pursuant to which loss and damages are sought as set in paras 77–82 of the same document. The orders seeking the extension of time are also set out in para 2 of the application and are supported by the matters contained in para 14. A copy of the original complaint and the notice of termination are annexed to the application. [3] The notice of termination of the Applicant’s complaint was issued on 7 June 2011 and the period of 60 days prescribed by s 46PO(2) expired on 6 August 2011. The application was filed on 7 August 2011, approximately 11 days out of time. The Documents [4] The application is supported by the Applicant’s affidavit sworn on 24 October 2012 and filed on the same day. [5] The response filed 14 June 2012, supported by the affidavit of Mr Alastair Jacob, Human Resources Manager, the Second Respondent, filed on 14 June 2012 and the affidavit of Mr Gnanasuresh Simeon, the Third Respondent, also filed 14 June 2012. The Respondents’ outline of submissions is dated 25 October 2012 and was filed on 26 October 2012 at the commencement of the hearing. The Law Page 2 of 4 Tomas v Technicolor Pty Ltd, [2012] FMCA 984 [6] The principles applicable to the exercise of the court’s discretion to extend time under s 46PO(2) of the Australian Human Rights Commission Act 1986 (Cth) are helpfully and accurately contained in paras 3 and 4 of the Respondents outline of submissions as follows: 3. The principles applicable to the exercise of the court’s discretion to extend time under s 46PO(2) of the AHRC Act are summarised in Ferrus v Qantas Airways Ltd (2006) 155 IR 88 ; [2006] FCA 812, [19]–[20]: [19] The discretion of the court conferred by the words “or within such further time as the court concerned allows” appearing in s 46PO(2) HREOC Act is similar to the discretion given to the court in s 11(1) Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”). Principles applicable to the exercise of the discretion under s 46PO(2) were described by McInnis FM in Phillips v Australian Girls Choir [2001] FMCA 109, based in turn on principles formulated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 in relation to s 11 ADJR Act. These considerations articulated in Phillips have been applied in a number of Federal Court decisions including Pham, Ingram-Nader v Brinks Australia Pty Ltd [2005] FCA 1541 (Jacobsen J) and Ingram-Nader v Brinks Australia Pty Ltd [2006] FCA 624 (Cowdroy J), and are relevant in the case before me. The principles listed by McInnis FM are as follows: 1. There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The “prescribed period” of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 550). 2. It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). It is not a precondition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential precondition (Comcare v A’Hearn (1993) 45 FCR 441 and Dix v Client Compensation Tribunal (1993) 1 VR 297 at 302). 3. Action taken by the applicant other than by making an application to the court is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised (see Doyle v Chief of Staff (1982) 42 ALR 283 at 287). 4. Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension (see Doyle at 287). 5. The mere absence of prejudice is not enough to justify the grant of an extension (see Lucic at 416). 6. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted (see Lucic at 417). 7. Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion (see Wedesweiller v Cole (1983) 47 ALR 528). [20] The seven principles were summarised — in my view, accurately — by Phipps FM in Drew v Bates [2005] FMCA 1221 as three matters: 1. explanation for delay 2. any prejudice to the respondent 3. whether the applicant has an arguable case. 4. The 60 day time limit is a generous one — the time limit was formerly 28 days, until it was extended by the Disability Discrimination and Other Human Rights Amendment Act 2009 (Cth). The starting position is that time limits must be observed. The court should not extend time unless positively satisfied that it should do so in the circumstances of this case. Conclusions and Findings Page 3 of 4 Tomas v Technicolor Pty Ltd, [2012] FMCA 984 [7] With respect to the explanation for delay, the Applicant makes a number of assertions not supported by evidence. Ms Tomas provided no evidence of her financial circumstances which she relies on as an explanation for the delay. Further, whilst she asserts that she was suffering from a serious psychological condition, the Applicant has provided no supporting medical material, notwithstanding that she was directed in July to provide the Respondents with medical reports that had been generated with respect to her WorkCover claim. The Applicant says that she has been unable to secure them from her former solicitors. In circumstances where the medical evidence exists but has not been produced, I accept the submission of counsel for the Respondents that it raises an inference that the medical evidence does not support her cause. [8] The third matter that the Applicant relies on is an assertion of representative error on the part of her former solicitors. In this regard I again accept the contention of the Respondents’ counsel that the Applicant was less than candid with the court about the true circumstances surrounding the delay. Ms Tomas sought to place blame on her former solicitor where the un-redacted email, which was very highly selectively redacted in the annexures to her affidavit, paints a picture of him having a certain understanding. She says it was incorrect but it was his understanding that they had discussed the need to proceed to court. She did know that she would have to confide funds in trust from, at least, late May and having been confronted with the need to actually do that by someone who continued to be prepared to act for her, she terminated that arrangement when she had not secured other solicitors. She says the reason that she terminated the relationship with Mr McHugh was because she was dissatisfied with him not telling her about the notice of termination until early July and giving her a fairly short period to instruct him to come up with the money in trust, but that is completely inconsistent with what she wrote at the time. In my mind there is no question that she endeavoured to paint a very different picture where the blame is all Mr McHugh’s when in fact it was due to her changing her instructions and dismissing one solicitor before she had secured another. The reason for her decision to change from one firm to another was clearly due to the fact the did not want to put money in trust as she understood the need to do so and went looking for other solicitors who were prepared to act without requiring upfront payment. She clearly took her time in doing that. There was a delay of 5 days and then a week and then another 2 weeks in her inquiries with Maurice Blackburn. So the real explanation for the delay is quite different from the explanation that Ms Tomas put forward. [9] Finally, in assessing the merits of the substantive application there are a number of factors which indicate that her case is a very weak one. Counsel for the Respondents identifies a number of difficulties and, in particular, highlights three. [10] The first is contained in Ms Tomas’s own material when she indicates that she was unsure on 23 February 2010, the date of the first complaint and the first incident of harassment that was brought to the attention of the Respondents, whether Mr Simeon had said to her that she had “beautiful breasts” or a “beautiful bracelet”. On the account she gives in her own statement, within a short time of making her initial complaint she had gone to her supervisor and said it was possible she had misheard and that she went and told Mr Simeon that he had probably mentioned “bracelet” and she apologised to him for making the complaints. In light of her own uncertainty on the day that she says the offensive comments were made, it is highly unlikely that the court would be persuaded to the requisite standard of reasonable satisfaction that these events occurred. [11] The second matter is that there are inconsistencies between the various accounts of harassment that Ms Tomas has alleged at various times. There are detailed contemporaneous notes, both handwritten and typed, of a meeting that she had with Mr Jacob on 12 March 2010 in relation to her first complaint: they are Annexs “AJ-4” and “AJ-5” to his affidavit. The Applicant now says she complained at the time Mr Simeon had touched her thighs on numerous occasions. There is no record of that complaint having been made back in March 2010. The Applicant herself acknowledges that there are inconsistencies and discrepancies between her statement filed with this court and her statement given to the WorkCover investigator and, in particular, the information contained in para 76 of her statement. [12] Thirdly, there is an issue that the Applicant needs to establish that Technicolor Pty Ltd, the First Respondent, is liable for the conduct of Mr Simeon and Mr Jacob, but Mr Simeon in particular Ms Tomas needs to deal with the defence in s 106(2) of the Sex Discrimination Act 1984 (Cth) that Technicolor Pty Ltd cannot be held vicariously liable for acts of employees if it establishes that it took all reasonable steps to prevent the harassment that is alleged. It would appear that there is very clear evidence in Mr Jacob’s affidavit that Technicolor Pty Ltd have in place at all relevant times a policy prohibiting sexual harassment and sex discrimination procedures for making of a complaint; when Ms Tomas made a complaint the complaint was dealt with and investigated and even though the complaint could not be substantiated because in large part Ms Tomas retracted almost as soon as she made it, the First Respondent took very definite action to separate Mr Simeon and Ms Tomas in the workplace. [13] While it is conceded by the Respondents that they have suffered no prejudice by reason of the delay, I am satisfied that in the absence of an acceptable explanation for the delay and very significant weaknesses in the Applicant’s substantive case, it is appropriate in all the circumstances to decline to extend the time for filing the application and accordingly it is appropriate to make the following orders: Page 4 of 4 Tomas v Technicolor Pty Ltd, [2012] FMCA 984 (a) The Applicant’s application under s 46PO(2) of the Australian Human Rights Commission Act 1986 (Cth), for an order that time for filing the application be extended, is refused. (b) The application is dismissed. (c) The Applicant pay the Respondents’ costs of the proceedings, including all reserved costs. Order (1) The Applicant’s application under s 46PO(2) of the Australian Human Rights Commission Act 1986 (Cth), for an order that time for filing the application be extended, is refused. (2) The application is dismissed. (3) The Applicant pay the Respondents’ costs of the proceedings, including all reserved costs. The applicant appeared in person. Counsel for the respondents: Ms Richards Solicitors for the respondents: Justitia Lawyers & Consultants End of Document