Zou v Ong [2021] FCA 724

Federal Court of Australia

Zou v Ong [2021] FCA 724 File number: QUD 1 of 2021

Judgment of: RANGIAH J

Date of judgment: 23 June 2021

Catchwords: HUMAN RIGHTS – Australian Human Rights Commission Act 1986 (Cth) – application for leave to commence application in Federal Court of Australia – where applicant alleges racial and disability discrimination – where application sought to be commenced more than twelve years after alleged discrimination – where delay would cause substantial prejudice to respondents – application dismissed

Legislation: Disability Discrimination Act 1992 (Cth) Racial Discrimination Act 1975 (Cth) Australian Human Rights Commission Act 1986 (Cth) ss 46PF(1)(b), 46PH(1)(b) and 46PO(3A)(a)

Cases cited: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 James v WorkPower Inc [2018] FCA 2083

Division: General Division

Registry: Queensland

National Practice Area: Administrative and Constitutional Law and Human Rights

Number of paragraphs: 22

Date of hearing: 23 June 2021

Counsel for the Applicant: The applicant appeared in person with the assistance of an interpreter

Solicitor for the Respondents: Ms S Maddern of Mills Oakley

ORDERS QUD 1 of 2021

BETWEEN: SENJIE ZOU Applicant

AND: WALTER ONG First Respondent

ALVIN CHEONG Second Respondent

order made by: RANGIAH J DATE OF ORDER: 23 JUNE 2021

THE COURT ORDERS THAT:

1. The applicant's application is dismissed. 2. The applicant pay the respondents' costs of the proceeding. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(DELIVERED EX TEMPORE AND REVISED)

RANGIAH J: 1 This is an application under s 46PO(3A)(a) of the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act) for leave to make an application to the Federal Court of Australia alleging racial discrimination under the Racial Discrimination Act 1975 (Cth) and disability discrimination under the Disability Discrimination Act 1992 (Cth). 2 The applicant is of Chinese ethnicity and alleges that he has disabilities consisting of high blood pressure and depression. The applicant alleges that he was discriminated against by the respondents on the basis of his ethnicity and disabilities. 3 Between 2006 and 2008, the applicant was engaged by Curtin University to assist in the recruitment of overseas students. By letter dated 1 September 2008, Curtin University terminated the applicant's engagement. The reasons given for the termination included the applicant's failure to submit budgeting reports and his failure to reconcile travel expenses. The respondents were employees of Curtin University during the period of the applicant's engagement. 4 On 21 July 2020, the applicant made a complaint to the Australian Human Rights Commission (the Commission) alleging racial and disability discrimination by Curtin University. On 27 October 2020, the Commission terminated the complaint under ss 46PF(1)(b) and 46PH(1)(b) of the AHRC Act on the basis that it was lodged more than 6 months after the alleged acts, omissions or practices took place. 5 On 4 January 2021, the applicant commenced proceedings in the Federal Court against the respondents. The originating application sought an apology and compensation. At a case management hearing on 3 March 2021, the respondents pointed out that, although the complaint to the Commission had been made against Curtin University, the proceeding had been commenced against the respondents as individual persons. As a result, on 10 March 2021 the applicant made a complaint to the Commission against the individual respondents. On 29 March 2021, the complaint against the respondents was terminated by the Commission. 6 On 9 April 2021, I ordered that the originating application be treated as an application for a grant of leave to make an application to the Federal Court under s 46PO(3A)(a) of the AHRC Act. I ordered that the parties file and serve affidavits and written submissions in relation to that application. 7 The applicant appears to make the following allegations against the respondents: (1) The applicant was the only Chinese employee in his department, whereas the respondents are Malaysian-Chinese, and the respondents took advantage of the applicant and forced him to work longer hours because of his ethnic and national origin. (2) During periods when the applicant was in China, the first respondent took the applicant's marketing budget for his own use. (3) At one point while the applicant was in China, the second respondent hired a driver but did not pay the bill, so that the applicant was forced to pay the bill personally. (4) The applicant informed the respondent that he had been diagnosed with high blood pressure and depression because of the hours he was working and that he needed time off work to look after his health. The respondents then told the applicant that his employment had been terminated due to misreporting of travel expenses. The applicant disputes this reason for his termination and believes it was because of his health problems and inability to work long hours. 8 The applicant was self-represented at the hearing of the application under s 46PO(3A)(a) of the AHRC Act. He appeared with the assistance of an interpreter. The applicant made no submissions beyond those contained in his filed written submissions. 9 Section 46PO of the AHRC Act provides, relevantly: 46PO Application to court if complaint is terminated (1) If: (a) a complaint has been terminated by the President under section 46PE, paragraph 46PF(1)(b) or section 46PH; and (b) the President has given a notice to any person under subsection 46PH(2) in relation to the termination; any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Circuit Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint. … (3) The unlawful discrimination alleged in the application: (a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or (b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint. (3A) The application must not be made unless: (a) the court concerned grants leave to make the application; or ... 10 In James v WorkPower Inc [2018] FCA 2083, Mortimer J held: 37 I am satisfied that the text, context and purpose of the leave requirement in s 46PO(3A) suggests that it is appropriate for the Court to consider in determining whether to grant leave whether the claims made by an applicant are reasonably arguable, and are – at the least – not fanciful. This is consistent with the language used in s 46P(1A). I do not consider, read in context, that s 46PO(3A) sets the bar particularly high: the purpose of the provision is to act as a filter to preclude complaints whose merits are disproportionate to the time and resources likely to be consumed by dealing with them in a whole proceeding, but not to impose a barrier of any substantively greater level. 38 There may be a range of other permissible considerations including: (1) the circumstances of the parties: how important the subject matter of the complaint is to both the applicant and any respondent, and to their respective circumstances; (2) the nature of the allegations made (including whether for example they involve allegations of continuing discrimination, or how serious the discrimination is alleged to be); (3) how thoroughly the Commission has dealt with the merits of the complaint. For example, it may be the Commission's termination reasons thoroughly answer the alleged merits of a complaint and make it clear the complaint is not reasonably arguable; (4) whether an applicant has delayed in complaining about the alleged discrimination and if so whether there are any explanations for that delay; (5) whether a respondent has attempted to address the allegations in any way outside the Commission process and whether the allegations have been addressed or resolved in any way; (6) the factual and legal complexity of the matters raised by the allegation of unlawful discrimination; (7) whether the allegations raise issues of public importance, or of general application. The express power given to the President in s 46PH(1)(h) does not exhaust the circumstances in which this factor might be considered; and (8) other factors that are often considered in leave applications – such as prejudice to a party. (Underlining added.) 11 The respondents oppose leave to commence the proceeding on the basis that: (1) The applicant substantially delayed in making his claim without any reasonable or credible explanation. (2) The complaint lacks substance or merit. (3) The complaint contains proven falsehoods and the allegations are vexatious and trivial in nature. (4) Other relevant factors weigh against the grant of leave, including prejudice to the respondents. 12 The applicant's allegations of discrimination are made on the basis of mere assertion and without the support of objective evidence. However, in order to decide the present application, it is sufficient to assume in favour of the applicant that the allegations he makes are reasonably arguable. It is enough to focus upon the applicant's delay in making the complaints and the prejudice to the respondents as a result of that delay. 13 The AHRC Act does not provide a time limit for the making of a complaint to the Commission. However, under s 46PH(1)(b), the President of the Commission has a discretion to terminate a complaint on the ground that it was lodged more than 6 months after the alleged unlawful discrimination took place. 14 The alleged discrimination took place between 2006 and 2008. The applicant's first complaint was lodged with the Commission on 21 July 2020, a delay of between 12 and 14 years. In his originating application, the applicant claims that he did not raise his concerns earlier for reasons of his health issues, his lack of understanding of Australian legal processes and his lack of English language skills. The respondents take issue with each of these asserted reasons for the delay. 15 The applicant's first reason for the delay is his health issues, consisting of high blood pressure and depression. However, the applicant has not produced any medical evidence of these alleged health issues, nor any evidence of how these health issues contributed to his delay in bringing the complaint. Neither has the applicant explained how, notwithstanding his health conditions, he was able to eventually make his complaint. I do not accept that the applicant's health conditions are a satisfactory or reasonable excuse for his delay, particularly a delay of such length. 16 The applicant's second reason for the delay is his lack of understanding of Australian legal processes. However, the applicant has made multiple complaints related to his engagement by Curtin University, and has thereby made a number of uses of Australia's legal processes. These include: In August 2011, the applicant lodged a complaint with the Fair Work Ombudsman alleging underpayment, non-payment of annual leave entitlements and long service leave entitlements, and not being provided with payslips. In April 2015, the applicant lodged an application in the Western Australian Industrial Relations Commission claiming that he was owed contractual benefits as an employee. In December 2015, the applicant filed a notice of appeal to the Full Bench of the Western Australian Industrial Relations Commission. In March 2016, the applicant filed an unlawful termination claim with the Fair Work Commission. 17 Having regard to the applicant's extensive use of Australian legal processes since 2011, his claim that he did not understand such processes is unpersuasive. In addition, in his written submissions, the applicant states that he visited the North Melbourne Legal Centre in January 2010 and raised his allegations, which I infer were of discrimination. As the applicant has consistently shown his ability to navigate and make use of Australia's legal processes, this asserted reason for delay is unsatisfactory. 18 The third reason offered by the applicant for the delay is his lack of English language skills. However, his lack of English language skills has not prevented him from engaging with legal processes in the past. I do not accept that his lack of English language skills is an adequate reason for his delay in making the complaints of discrimination. 19 Whether the applicant's reasons are taken individually or collectively, I am not satisfied that he has demonstrated any adequate or reasonable explanation for his extraordinary delay in making his complaints of discrimination. 20 I am satisfied that if leave to make the application were granted, the respondents would suffer substantial prejudice. It is oppressive for the respondents to face serious allegations of discrimination when they have only been made aware of the allegations more than a decade after the relevant events. Further, as McHugh J observed in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551: The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose. 21 I consider that the applicant's extraordinary delay and the prejudice to the respondents resulting from that delay are overwhelming factors in favour of declining to grant leave to commence the application. The application for leave will be dismissed. 22 I will order that the applicant pay the respondents' costs of the proceeding. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rangiah.

Associate: Dated: 30 June 2021