mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Drew v Bates [2005] FMCA 1221
Outcome: cited
The seven principles were summarised in my view, accurately by Phipps FM in Drew v Bates [2005] FMCA 1221 as three matters: 1. explanation for delay 2. any prejudice to the respondent 3. whether the applicant has an arguable case. 21 As I have already noted in my judgment, the applicant filed his application more than six months after the Notice of Termination was issued by HREOC pursuant to s 46PH(2). 22 The applicant in his application did not explain the delay in filing. However, there appears to have been relevant correspondence between the applicant and the Federal Court Registry. This correspondence was annexed to the HREOC claim filed 21 January 2005, and constituted: &#8226; a copy of a letter written by the applicant to the Federal Court Registry in Brisbane dated 22 July 2004, stamped as received by the Registry on 27 July 2004. In that letter the applicant stated that he wished to make a complaint concerning the matter, and that he believed that he had 'not been dealt with by another statuary (sic) authority'. The applicant in the letter stated that he enclosed the Notice of Termination issued by HREOC. &#8226; a letter from Deputy District Registrar Reynolds of the Federal Court to the applicant, dated 27 July 2004, which informed the applicant that his correspondence was insufficient to commence proceedings in the Federal Court, and stating that it enclosed a package that had been prepared in the registry for the assistance of self-represented litigants who wished to commence Human Rights proceedings. In that letter the Deputy District Registrar invited the applicant to contact her if he had any queries. &#8226; a letter from the applicant to the Deputy District Registrar dated 28 September 2004, stamped as received by the Federal Court Registry on 7 October 2004. In this letter the applicant acknowledged that there was a 28 day limit on making an application to the Federal Court under s 46PO, and acknowledged that the correspondence he had sent was insufficient at the time to commence proceedings. In the letter he stated that his financial situation was extremely difficult and that he needed time to gather sufficient funds to proceed the matter with the assistance of a lawyer. He concluded the letter by asking: 'Could you please consider my request.'
Case: Forbes v Australian Federal Police (Commonwealth of Australia) [2004] FCAFC 95
Outcome: cited
Accordingly, to the extent that it is possible for me to identify a disability which the applicant may have experienced at the relevant time, it appears that it is depression, with symptoms including fatigue, confusion and lack of concentration. A depressive illness can fall within the scope of 'disability' as defined by s 4 DD Act (note, for example, comments of the Full Court of the Federal Court in Forbes v Australian Federal Police (Commonwealth of Australia) [2004] FCAFC 95 at par 16, and the observation of Brown FM in Power v Aboriginal Hostels Ltd [2004] FMC 452 at par 12).
Case: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Outcome: cited
The discretion of the Court conferred by the words 'or within such further time as the court concerned allows' appearing in s 46PO(2) HREOC Act is similar to the discretion given to the Court in s 11(1) Administrative Decisions (Judicial Review) Act 1977 (Cth) (' ADJR Act '). Principles applicable to the exercise of the discretion under s 46PO(2) were described by McInnis FM in Phillips v Australian Girls Choir [2001] FMCA 109 , based in turn on principles formulated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 in relation to s11 ADJR Act . These considerations articulated in Phillips have been applied in a number of Federal Court decisions including Pham , Ingram-Nader v Brinks Australia Pty Limited [2005] FCA 1541 (Jacobsen J) and Ingram-Nader v Brinks Australia Pty Limited [2006] FCA 624 (Cowdroy J), and are relevant in the case before me. The principles listed by McInnis FM are as follows: 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 precondition 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 precondition ( 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 287). 5. The mere absence of prejudice is not enough to justify the grant of an extension (see Lucic at 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 417). 7. Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion (see Wedesweiller v Cole (1983) 47 ALR 528).
Case: Ingram-Nader v Brinks Australia Pty Limited [2005] FCA 1541
Outcome: cited
The discretion of the Court conferred by the words 'or within such further time as the court concerned allows' appearing in s 46PO(2) HREOC Act is similar to the discretion given to the Court in s 11(1) Administrative Decisions (Judicial Review) Act 1977 (Cth) (' ADJR Act '). Principles applicable to the exercise of the discretion under s 46PO(2) were described by McInnis FM in Phillips v Australian Girls Choir [2001] FMCA 109 , based in turn on principles formulated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 in relation to s11 ADJR Act . These considerations articulated in Phillips have been applied in a number of Federal Court decisions including Pham , Ingram-Nader v Brinks Australia Pty Limited [2005] FCA 1541 (Jacobsen J) and Ingram-Nader v Brinks Australia Pty Limited [2006] FCA 624 (Cowdroy J), and are relevant in the case before me. The principles listed by McInnis FM are as follows: 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 precondition 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 precondition ( 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 287). 5. The mere absence of prejudice is not enough to justify the grant of an extension (see Lucic at 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 417). 7. Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion (see Wedesweiller v Cole (1983) 47 ALR 528).
Case: Ingram-Nader v Brinks Australia Pty Limited [2006] FCA 624
Outcome: cited
The discretion of the Court conferred by the words 'or within such further time as the court concerned allows' appearing in s 46PO(2) HREOC Act is similar to the discretion given to the Court in s 11(1) Administrative Decisions (Judicial Review) Act 1977 (Cth) (' ADJR Act '). Principles applicable to the exercise of the discretion under s 46PO(2) were described by McInnis FM in Phillips v Australian Girls Choir [2001] FMCA 109 , based in turn on principles formulated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 in relation to s11 ADJR Act . These considerations articulated in Phillips have been applied in a number of Federal Court decisions including Pham , Ingram-Nader v Brinks Australia Pty Limited [2005] FCA 1541 (Jacobsen J) and Ingram-Nader v Brinks Australia Pty Limited [2006] FCA 624 (Cowdroy J), and are relevant in the case before me. The principles listed by McInnis FM are as follows: 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 precondition 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 precondition ( 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 287). 5. The mere absence of prejudice is not enough to justify the grant of an extension (see Lucic at 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 417). 7. Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion (see Wedesweiller v Cole (1983) 47 ALR 528).
Case: Lucic v Nolan (1982) 45 ALR 411 at 416
Outcome: cited
The discretion of the Court conferred by the words 'or within such further time as the court concerned allows' appearing in s 46PO(2) HREOC Act is similar to the discretion given to the Court in s 11(1) Administrative Decisions (Judicial Review) Act 1977 (Cth) (' ADJR Act '). Principles applicable to the exercise of the discretion under s 46PO(2) were described by McInnis FM in Phillips v Australian Girls Choir [2001] FMCA 109 , based in turn on principles formulated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 in relation to s11 ADJR Act . These considerations articulated in Phillips have been applied in a number of Federal Court decisions including Pham , Ingram-Nader v Brinks Australia Pty Limited [2005] FCA 1541 (Jacobsen J) and Ingram-Nader v Brinks Australia Pty Limited [2006] FCA 624 (Cowdroy J), and are relevant in the case before me. The principles listed by McInnis FM are as follows: 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 precondition 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 precondition ( 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 287). 5. The mere absence of prejudice is not enough to justify the grant of an extension (see Lucic at 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 417). 7. Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion (see Wedesweiller v Cole (1983) 47 ALR 528).
Case: Phillips v Australian Girls Choir [2001] FMCA 109
Outcome: approved
The discretion of the Court conferred by the words 'or within such further time as the court concerned allows' appearing in s 46PO(2) HREOC Act is similar to the discretion given to the Court in s 11(1) Administrative Decisions (Judicial Review) Act 1977 (Cth) (' ADJR Act '). Principles applicable to the exercise of the discretion under s 46PO(2) were described by McInnis FM in Phillips v Australian Girls Choir [2001] FMCA 109 , based in turn on principles formulated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 in relation to s11 ADJR Act . These considerations articulated in Phillips have been applied in a number of Federal Court decisions including Pham , Ingram-Nader v Brinks Australia Pty Limited [2005] FCA 1541 (Jacobsen J) and Ingram-Nader v Brinks Australia Pty Limited [2006] FCA 624 (Cowdroy J), and are relevant in the case before me. The principles listed by McInnis FM are as follows: 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 precondition 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 precondition ( 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 287). 5. The mere absence of prejudice is not enough to justify the grant of an extension (see Lucic at 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 417). 7. Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion (see Wedesweiller v Cole (1983) 47 ALR 528).
Case: Power v Aboriginal Hostels Ltd [2004] FMC 452
Outcome: cited
Accordingly, to the extent that it is possible for me to identify a disability which the applicant may have experienced at the relevant time, it appears that it is depression, with symptoms including fatigue, confusion and lack of concentration. A depressive illness can fall within the scope of 'disability' as defined by s 4 DD Act (note, for example, comments of the Full Court of the Federal Court in Forbes v Australian Federal Police (Commonwealth of Australia) [2004] FCAFC 95 at par 16, and the observation of Brown FM in Power v Aboriginal Hostels Ltd [2004] FMC 452 at par 12).
Case: Ralkon v Aboriginal Development Commission (1982) 43 ALR 535
Outcome: cited
The discretion of the Court conferred by the words 'or within such further time as the court concerned allows' appearing in s 46PO(2) HREOC Act is similar to the discretion given to the Court in s 11(1) Administrative Decisions (Judicial Review) Act 1977 (Cth) (' ADJR Act '). Principles applicable to the exercise of the discretion under s 46PO(2) were described by McInnis FM in Phillips v Australian Girls Choir [2001] FMCA 109 , based in turn on principles formulated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 in relation to s11 ADJR Act . These considerations articulated in Phillips have been applied in a number of Federal Court decisions including Pham , Ingram-Nader v Brinks Australia Pty Limited [2005] FCA 1541 (Jacobsen J) and Ingram-Nader v Brinks Australia Pty Limited [2006] FCA 624 (Cowdroy J), and are relevant in the case before me. The principles listed by McInnis FM are as follows: 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 precondition 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 precondition ( 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 287). 5. The mere absence of prejudice is not enough to justify the grant of an extension (see Lucic at 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 417). 7. Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion (see Wedesweiller v Cole (1983) 47 ALR 528).
Case: Sharma v Legal Aid (Qld) [2002] FCAFC 196
Outcome: cited
However even if I were satisfied that the applicant had a disability within the meaning of the DD Act , the second issue which immediately arises is that, other than by referring to sections of the DD Act , no case is put by the applicant as to how he has been subjected to unlawful discrimination by the respondent under the legislation. The onus of proof would be on the applicant in the substantive case to prove that he had been subjected to unlawful discrimination: note comments of the Full Court of the Federal Court in Sharma v Legal Aid (Qld) [2002] FCAFC 196 in the context of applying the RD Act , and learned articles on this issue including J Hunyor 'Skin-deep: Proof and Inferences of Racial Discrimination in Employment' (2003) Syd L Rev 24 and E Waldeck and R Guthrie 'Disability discrimination in education and the defence of unjustifiable hardship' (2004) Curtin University of Technology School of Business Law Working Paper Series 040:06 at p 8. 49 Section 15(1) DD Act appears irrelevant, as that subsection deals only with discrimination in the context of offering employment, which was not the case here. As I noted earlier in this judgment however, s 15(2) deals with discrimination against existing employees on the ground of the employee's disability: '(a) in the terms or conditions of employment that the employer affords the employee; or (b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or (c) by dismissing the employee; or (d) by subjecting the employee to any other detriment.' 50 In his application, the applicant has made reference to: (a) the termination of his employment by the respondent; and (b) the circumstance that, 'during the process of the investigation made by Qantas Airlines, I was allowed under the EBA to be offered the redundancy package at the time. That was not the case, pending the outcome from the investigation'. 51 Accordingly, the applicant's substantive claim could potentially fall within the terms of par 15(1)(c) in relation to the termination of his employment, or par 15(1)(b) in the context of his claim that he has not received a redundancy package. 52 The DD Act prohibits two types of discrimination disability discrimination (s 5) and indirect disability discrimination (s 6). The applicant has specifically relied on s 6 in his application before me (note also the TS p 20 ll 5-12), and has not relied on s 5, although HREOC also considered his complaint in the context of s 5.