Case: Phillips v Aust Girls' Choir &amp; Anor [2001] FMCA 109
Outcome: approved
In refusing the leave application Driver FM considered the principles in Phillips v Aust Girls' Choir &amp; Anor [2001] FMCA 109 (' Phillips '), which were approved by this Court in Pham v Commonwealth of Australia [2002] FCA 669. There is no dispute between the parties concerning the applicability of those principles; rather the dispute relates to the application by Driver FM of those principles. The paragraphs of his Honour's reasons which relate to the issues in the current appeal are as follows: 'The issues arising in the matter date from around 1998, although they extended through to 2004. Mr Gurran, for the respondent, put to me that the allegations made to HREOC came as a surprise to the respondent and the respondent rather thought that the issues might have been resolved at the termination of the complaint. A fourth relevant consideration is any prejudice in defending the proceedings occasioned by the delay. This is a material factor against the grant of an extension, see Doyle at page 287. I regard the issue of prejudice in this case as a significant factor. The complaint to HREOC was against the employer only even though it was a complaint of sexual harassment by reason of the applicant's sexual preference. No complaint having been made against the alleged harassers, no proceeding can now be brought in this court against those persons. The jurisdiction of the court is limited to considering the claim against the harasser's employer and would be based on asserted vicarious liability. For its part, the respondent asserted before HREOC that the allegations of harassment came as a surprise. ... The events complained of go back up to seven years. The respondent asserts that the individuals allegedly responsible for the harassment are no longer employed by the respondent and one relevant witness is no longer in Australia. There would be real difficulty facing the respondent in dealing with the allegations in this Court. ... The sixth consideration is that the merits of the substantive application are properly to be taken into account in considering whether an extension of time should be granted. The material put before HREOC and before the court to this point is sufficient to establish a prima facie case of sexual harassment against the persons allegedly responsible for that harassment. That is not the same thing as establishing a prima facie case against the single respondent, the employer, which would depend upon proof of vicarious liability. At this stage and particularly if the only evidence available is that of the applicant I would have to say that the prospects of success of the application against the respondent are uncertain. ... ... He [the applicant] could have brought that complaint forward rather earlier than he did. He certainly could and in my view should have pursued his rights in this court more promptly than he did. Having regard to the length of the delay in this matter which in my view is significant, the explanation for the delay which in my view is only partially convincing, the prejudice to the respondent if the proceeding continues, which in my view is real and substantial, and the interests of the administration of justice, I have come to the view that the application for an extension of time should be refused and I will so order.' 11 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).'