Case: Bahonko v Royal Melbourne Institute of Technology [2006] FCA 1325
Outcome: applied
Justice Weinberg has usefully set out some other key aspects of the HREOC Act in the recent decision of Bahonko v Royal Melbourne Institute of Technology [2006] FCA 1325 at [14] to [20]. I should note that Ms Bahonko submitted that the decision of Weinberg J should not be followed. However, leave to appeal from that decision was refused by Tracey J in Bahonko v Royal Melbourne Institute of Technology [2006] FCA 1492 and in my respectful view, the statement of the relevant principles as set out by Weinberg J is correct. 47 Under s 46PO(2), it is clear that the Court has a discretion to grant an extension of time. The principles to be considered when deciding whether to extend time for the filing of an application were described by Weinberg J in the decision of Bahonko v RMIT [2006] FCA 1325 at [21] to [24]. His Honour referred to the principles expounded by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9, which related to an application for an extension of time under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('ADJR Act'), and held that the principles therein stated were applicable to s 46PO. I respectfully agree with Weinberg J that those principles are relevantly applicable to an application under the HREOC Act. 50 However, it was always clear that the matter of the necessity for leave remained an issue. The way in which the proceeding has run its course has been a result of the number of interlocutory applications brought by all the parties which required consideration by the Court. No interlocutory application involved or proceeded on the basis that the issue of leave to file out of time was resolved in favour of Ms Bahonko. There can be no suggestion of waiver or abandonment by virtue of the conduct of the respondents to lead to the view that the extension of time issue need not be determined by me or that it did not remain a live issue for decision. Further, there is no basis to suggest that s 46PR is applicable to issues going to jurisdiction so as to permit me to consider the application for leave otherwise than in accordance with the principles set out above: see Bahonko v RMIT [2006] FCA 1325 at [20] and [70]. Further, there can be no prejudice to Ms Bahonko, as the applications for summary dismissal, which were also before me, required consideration of the merits of the case, and therefore she was anticipating having to deal with the question of the merits of her complaints, and was given ample opportunity to do so. 51 The period of delay is not a significant one. Ms Bahonko explained that she had been involved in a motor vehicle accident on 11 April 2006 and was still ill from the time the Commission gave her notice of the termination of the complaint on 1 June 2006. She submitted a number of medical certificates which stated she was unfit to work because of the accident from 11 April 2006 to 17 July 2006. 52 On the basis of those certificates, I accept that Ms Bahonko was ill at the time she received notification of the complaint until 17 June 2006. I note that the delay in filing her proceeding is relatively short, and I consider her excuse is acceptable in the circumstances. 63 The Minister referred to the decision of Weinberg J concerning a discrimination proceeding brought by Ms Bahonko against the Royal Melbourne Institute of Technology ('RMIT') and others: see Bahonko v RMIT [2006] FCA 1325. In that case, his Honour was similarly faced with an application for an extension of time, as Ms Bahonko had filed out of time, and an application for summary judgment made by one of the respondents. After his Honour considered the various claims, he refused to grant Ms Bahonko an extension of time, concluding in relation to the claims against RMIT as follows (at [86]): It would be quite wrong, in my view, to grant an extension of time in circumstances where there is a paucity of material to support claims of unlawful discrimination which are cast in sweeping, unparticularised and seemingly exaggerated terms. It is clear that the Commission acted correctly in terminating her complaints, having regard to the material that Ms Bahonko placed before it. The additional material placed before this Court in support of her application for review of the Commission's decision takes her case no further. 64 The Minister submitted that Ms Bahonko's material against the Minister was similarly sweeping, unparticularised and exaggerated and that the Commission was right to terminate and finalise her complaints against the Minister on the basis of the material before it. It was submitted that the additional material placed before this Court takes her case no further. In the alternative, it was submitted that if the material does take the case further, it is not the same or substantially the same as those in her complaints, and is therefore outside the scope of review by this Court under s 46PO(3). 116 In any event, I accept the Minister's submissions that the Minister's role in relation to the NBV was limited, in the same way Weinberg J found the role of the Minister for Education and Training was limited in Bahonko v RMIT [2006] FCA 1325. The Minister was not directly involved in the decisions and conduct of the NBV, but rather the NBV was constituted as a distinct and separate body under the Nurses Act and its decisions were its own. 117 Further, and in any event, s 18A is confined to the acts of agents and employees which, as the Minister submitted, does not extend to the NBV, as the NBV is not an employee or agent of the Minister. True it is that the Minister appoints NBV members, but this does not make the Minister liable for actions of the NBV in relation to investigating professional conduct of nurses and imposing conditions on nurses' registrations: see also Bahonko v RMIT [2006] FCA 1325 at 78. 118 Similarly, Ms Bahonko's claim that the Minister contravened s 122 of the DDA depended upon my finding that the NBV contravened s 42 of the DDA. On the basis of my finding above that there is no evidence to suggest that the NBV contravened s 42 , this claim is without merit. 119 I accept the Minister's submissions that Ms Bahonko did not make any credible claim against the Minister, and refuse her application for an extension of time to bring proceedings against the Minister.