Case: Anthony James Pitt v OneSteel Reinforcing &amp; Anor [2003] FMCA 609
Outcome: cited
In her reasons for judgment, which are designated as Anthony James Pitt v OneSteel Reinforcing &amp; Anor [2003] FMCA 609 , at [11] and [12], there appears the substance of the federal magistrate's reasoning: The affidavit prepared by the applicant does not show any reasonable cause of action, save to refer to the existence of an internal memorandum in paragraph 8 of that affidavit. There is no memorandum annexed to the affidavit. The basis of complaint in the affidavit appears to be what occurred around the hearing before HREOC in December 1997. Further, the affidavit does not simply fail to adequately address or justify the reasons for this unreasonable delay, it fails, in my view, to address this issue at all. Further, the affidavit of the applicant fails to address the issue of prejudice, such a very central question in these proceedings that might be occasioned to the first-named respondent. There is a complete absence of any address of that ground by the applicant. The application does not reveal on its face any action against the first respondent. The complaint is stale and I accept counsel for the first respondent's submission that the ability of the first respondent to defend itself is severely limited by the unavailability of the majority of the witnesses and the unreliability of any witnesses' recollections after so much time has lapsed. The applicant puts before the court no reasons for this unreasonable delay. 7 Although that judgment was delivered on 7 November 2003, it was not until 14 April 2008 that the applicant filed an application for leave to appeal. This application is by way of handwritten completions to a typewritten form. One of the handwritten completions is to describe the respondent as "B.H.P North Altona Melb". Obviously it will be necessary to amend the title to the proceeding to show the correct name of the respondent. Counsel for the respondent applied for such an amendment. 8 Because the judgment of the Federal Magistrates Court is an interlocutory judgment, the applicant needs an extension of time to apply for leave to appeal, pursuant to O 52 r 5(2) of the Federal Court Rules , where the period fixed by that rule is 21 days. Accordingly, the applicant is well beyond four years late in making his application. 9 Along with the application the applicant provided a draft notice of appeal. The only ground of appeal specified is a complaint that the federal magistrate described his claim as frivolous. I have endeavoured to explain to the applicant today that the word "frivolous", especially when coupled with "vexatious", is a technical legal term, in substance meaning the absence of a cause of action. The federal magistrate was certainly not describing the applicant as having acted frivolously in making his claim. 10 On 14 April 2008, the applicant also filed an affidavit. In that affidavit he says as follows: The nature of the case is that I was groped on the genitals by a co-worker while working at B.H.P North Altona in April 1995. The issues involved are that I was treated by a B.H.P representative and he said that I instigated the behaviour, and I didn't even receive so much as a sorry for the incident. The reasons why leave should be granted are that I suffer with depression and other psychological illnesses. I felt that there was nothing I could do about the situation, but I can't give up on the matter because it has affected me so deeply. I also could not find a solicitor to act for me, so I have to try to do it myself. The matter was heard on 10th September 2003 by Judge Hartnett in the Federal Court Melbourne, to which Judge Hartnett said the matter was frivolous. I wish to appeal Judge Hartnett's ruling.