Case: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Outcome: followed
Several principles must be considered by the Court in determining an application for leave to extend time in which to institute proceedings. In Phillips McInnis FM referred to Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 in which Wilcox J (at 348-9) set out the principles to be adopted in relation to an extension of time under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('ADJR Act'). McInnis FM determined that those principles were applicable to the exercise of discretion under s 46PO of the HREOC Act. Accordingly his Honour (at [10]) set out the following principles: '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 pre-condition 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 pre-condition ( 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 p 287) 5. The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic at p 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 p 417) 7. Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of the court's discretion ( Wedesweiller v Cole (1983) 47 ALR 528).' 12 The above principles are drawn almost verbatim from those formulated by Wilcox J in Hunter Valley Developments. I consider that they are relevant to an application under s 46PO of the HREOC Act. The principles relevant to this appeal are numbers 4 and 6. 13 The appellant contends that Driver FM erred in his interpretation of prejudice for the purposes of an application to extend time in which to bring proceedings. The appellant also contends that Driver FM erred in assessing the merits of the appellant's case, because his Honour misconceived the basis of the vicarious liability of the respondent.