Case: Bahonko v Nurses Board of Victoria (No 4) [2007] FCA 1449 ; (2007) 97 ALD 721
Outcome: applied
Bahonko v Nurses Board of Victoria (No 4) [2007] FCA 1449 ; (2007) 97 ALD 721 , Middleton J considered at [47] and [48] the principles to be applied in exercising the discretion under s 46PO(2) of the HREOC Act and held that the three main matters that need to be taken into account are: (a) The explanation of the delay; (b) any prejudice to the respondent; and (c) whether the applicant has an arguable case. Subsequently, on 8 July 2009, the respondent filed a notice of motion seeking a stay or summary dismissal of the proceeding pursuant to O 20 r 5(1)(a) or (b) of the Rules; in the alternative, summary judgment in favour of the respondent pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) ('the Act'); in the alternative, that the applicant's 'Application and Claim' be struck out pursuant to O 11 r 16 of the Rules; in the alternative, that the applicant provide security for costs in the sum of $20,000 or such other sum ordered by the Court by a fixed time and date, that the proceeding be stayed until such time as the applicant provided such security and that if such security was not forthcoming by the time and date so fixed, the proceeding be dismissed. Additionally, the respondent sought an order pursuant to O 46 r 7A of the Rules, that the applicant not institute any proceeding against the respondent relating to the subject matter of the present proceeding except with the leave of the Court. When the motion came on for hearing, I indicated to the parties that I did not think O 11 r 6 of the Rules enabled me to strike out the applicant's 'Application and Claim' even if I was minded to do so; that rule was concerned with the striking out of pleadings and could not be relied upon to strike out the applicant's originating application. Second, I indicated that until I determined the applicant's application for an extension of time in which to file his originating application, the orders and alternative orders sought on the motion were premature, even though there were common underlying issues as between the exercise of the Court's discretion as to whether an extension of time should be granted and whether or not to make the primary orders for relief sought in the motion. I therefore proceeded to hear the applicant's application for an extension of time to file his originating application in the Court outside the 28 days prescribed by s 46PO(2) of the HREOC Act. Explanation for Delay The respondent did not claim any actual prejudice caused by the delay. However, the absence of prejudice is not sufficient to allow an extension of time: Bahonko at [53]. Arguable Case For the reasons advanced below in paras [21] to [24], the respondent submitted that the applicant's case is not arguable and has no prospects of success. In consequence, the respondent submitted that it is not in the interests of justice to grant the applicant an extension of time to file his originating application. In Attachment A to the Form 167, the applicant responded to question 11: 'Describe the discrimination that you are complaining of', in the following terms: (a) It is alleged that on the 29/1/2008 the respondent unlawful[ly] discriminated against the applicant contravening ss. 5 , 6 , 11 and 22 of the Disability Discrimination Act 1992 by failing to accept the applicant's application for re-enrolment in the day time full time mode of the diploma in Website Development. (b) It is alleged that on the 8/2/2008 the respondent unlawful[ly] discriminated against the applicant contravening ss. 5 , 6 , 11 and 22 of the Disability Discrimination Act 1992 by limiting the applicant's access to the evening time part time mode of the diploma in Website Development. (b) It is alleged that the respondent unlawful[ly] discriminated against the applicant by subjecting the applicant to further detriment contravening ss. 5 , 6 , 11 and 22 of the Disability Discrimination Act 1992 by filing a response to the applicant's complaint in the Human Rights and Equal Opportunity Commission knowing that the information or statements were false and misleading in material particulars and in contravention of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) s. 46PN. (c) It is alleged that the respondent well knew since approximately 1990 that the applicant was under a physical disability, Repetitive Strain Injury (RSI).